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MahmoudAly

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LexAbSumm

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[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant, Ms Ljiljana Milisavljević, is a Serbian national who was born in 1966 and lives in Belgrade.", "6. The applicant was a journalist employed at Politika, a major Serbian daily newspaper. In September 2003 she was requested by the editorial board to write an article about Ms Nataša Kandić.", "7. Ms Nataša Kandić is a Serbian human rights activist primarily known for her activities in investigating crimes committed during the armed conflicts in the former Yugoslavia, including those crimes committed by Serbian regular and irregular forces. She was also recognised as one of the most vocal advocates for full cooperation of the Yugoslav and later Serbian authorities with the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”).", "8. At the time relevant to this case, between 40% and 64% of the Serbian population considered the ICTY to be a major security threat to the Republic of Serbia. [1] Some 54% of the population was against cooperation with the ICTY, which would include arrests and transfers of Serbian suspects to this institution. [2] In 2003, the ICTY ’ s assessment of Serbia ’ s cooperation with that court was that it was “neither full nor proactive”. [3] The level of cooperation was further negatively influenced by the assassination of the Serbian Prime Minister Dr Zoran Đinđić in March 2003, a major political figure open to full cooperation with the ICTY. [4] Ms Kandić herself came under attack by a significant portion of the Serbian political elite and general population. As a consequence, she was involved in several incidents.", "9. The applicant ’ s article on Ms Kandić appeared in Politika on 7 September 2003. The integral translation of the impugned article, titled “The Hague Investigator”, reads as follows:", "“ ‘ Even my son blames me for protecting everybody but the Serbs ’, says the director of the Fund for Humanitarian Law.", "Ms Nataša Kandić, founder and Executive Director of the Humanitarian Law Centre for Serbia, Montenegro, and Kosovo and Metohija, a non-governmental organisation aimed at promoting human rights for minorities, last week, again, defended herself ‘ from the Serbian patriotism surge ’.", "On the occasion of the International Day of the Disappeared commemoration, at the gathering of the Association of Families of Missing and Kidnapped Persons in Kosovo and Metohija organised in the centre of Belgrade, following a short argument she slapped one of the participants. After this incident the Belgrade police submitted a request for the initiation of prosecution proceedings against her, and the Association of Families of the Missing lodged a lawsuit, demanding that she pay 30,000,000 Serbian dinars (RSD) for the insult to the families of those kidnapped and killed.", "Recently our media have also reported that this ‘ prominent advocate of human rights and democratic reform in Serbia ’ was awarded the annual Central European and Eurasian Law Initiative Award (CEELI) from the American Bar Association on 9 August during the ABA Annual Meeting luncheon in San Francisco. Former winners of this award were Petar Stoyanov from Bulgaria, Emil Constantinescu from Romania, Vaclav Havel from the Czech Republic, Stjepan Mesić from Croatia ...", "It was also reported that at the beginning of May the American magazine Time published a list of thirty-six individuals dubbed the European heroes, among which was Nataša Kandić, too.", "The Serbian campaigner for the truth on war crimes, a lonely voice of reason in Serbia or the Soros [5] mercenary, the one who was named by all the banished FRY [6] spies, has won many awards, including the Human Rights Watch Award, but none of them were awarded to her in Serbia.", "Nataša Kandić provokes stormy reactions wherever she appears. While the West lauds and praises her, in Serbia she is spoken about with contempt and accused of anti-Serbian politics. Most of all they blame her for never pursuing the crimes against Serbs but exclusively dealing with those committed by Serbs against other ethnicities.", "Although she has been called a witch and a prostitute and is permanently under threat (this year she has also had to cancel her appearance at a local TV station owing to a bomb threat), she says: ‘ This is simply the part of this job. I don ’ t think that they hate me, only my message ’.", "Nevertheless, she once made a public complaint: ‘ Even my son has accused me of protecting everybody except the Serbs. ’ Although later, she adds, she heard him defending her concern for the weak.", "Nataša Kandić was born in 1946 in Topola, to her father Radoslav and mother Vera. In 1966 she went to study in Great Britain and upon her return she enrolled in the Faculty of Philosophy at the University of Belgrade. She participated in the 1968 student demonstrations. In the 1970s she started working in the Belgrade municipality of Palilula.", "Afterwards she worked in the city trade union. During the mid-1990s she went to the Centre for Antiwar Action to work as a technical secretary, but before long she left it after a conflict with Ms Vesna Pešić [7]. With a group of like-minded people she founded the Humanitarian Law Centre at the beginning of 1993.", "A year later, on the invitation of Ms Jeri Laber, the Helsinki Watch Executive Director, she left for New York. Upon discussion with top people at the Hague Tribunal [8], the Humanitarian Law Centre took charge of its work in respect of the so ‑ called Serbian crimes against Muslims in Bosnia and Herzegovina, as well as violations and abuses of Muslim and Croatian minority rights in the FRY. That is how this organisation became the [ICTY] ‘ investigator ’. Starting from the second half of the 1990s the Centre became involved in the Kosovo and Metohija issues.", "During the NATO campaign [9] she frequently travelled the Belgrade-Kosovo and Metohija-Montenegro routes. Her email messages sent via the Internet to foreign friends and collaborators are the evidence of her time and work in Kosovo and Metohija.", "With Lazar Stojanović [10], the Plastični Isus ( ‘ Plastic Jesus ’ ) director, she has a son Stefan, who lives in New York and is involved in graphic animation.”", "10. On 10 November 2003 Ms Kandić started a private prosecution against the applicant. She claimed that the entire piece had been written with the intent of belittling her in the eyes of the public, to present her as a traitor to Serbian interests and as a “paid servant of foreign interests and a prostitute who sells herself for money”. She further claimed that the points introduced in the article were maliciously misrepresented, and that the article contained untruths and blatant insults. She explicitly refused to lodge any civil compensation claim within these proceedings.", "11. The applicant, in her defence, stated that she was not expressing her own opinion of Ms Kandić, whom she did not intend to insult, and that she had written the entire article on the basis of the documentation of other magazines. She put the citations within quotation marks, but she omitted them when she was not literally citing but paraphrasing (“ ono što nije stavila pod navodnike predstavljaju navode koji nisu citati, već ih je prepričavala iz drugih listova ”). She provided details as to what phrases were taken from which articles and magazines, including from which article and magazine she had taken the phrase that Ms Kandić had been called a witch and a prostitute.", "12. On 1 September 2005, after a remittal, the First Municipal Court ( Prvi opštinski sud ) in Belgrade found that the applicant had committed a criminal offence of insult when having stated for Ms Kandić “although she has been called a witch and a prostitute” and gave her a judicial warning. The court established that the impugned phrase had been indeed previously published in another article by another author in a different magazine. However, the applicant did not put it in quotation marks which meant that she agreed with it, thus expressing her opinion. The court concluded that there was therefore an intention to insult Ms Kandić. In view of no aggravating circumstances and a number of mitigating ones ( the applicant had a clean record, was employed and of mature age ( u zrelom dobu )), she was given a mere judicial warning ( sudska opomena ), on the grounds of Articles 41 and 59 of the General Criminal Code (see paragraph 18 below). No prison sentence or fines were imposed.", "13. On an unspecified date thereafter the applicant appealed. She reiterated that the impugned words were not her own opinion, but an opinion of another author. The fact that she wrote also on the negative attitudes towards the private prosecutor and her work could not and must not make her, the applicant, criminally liable. She also submitted that such an attitude towards the freedom of press could have long-reaching consequences.", "14. On 5 July 2006 the Belgrade District Court ( Okružni sud ) upheld the first-instance decision endorsing the reasons given therein.", "15. In separate proceedings, on 2 October 2006 the Belgrade First Municipal Court ordered the applicant to pay Ms Kandić RSD 33,125 (around 386 euros (EUR)) in respect of costs and expenses. The applicant did not appeal against that decision.", "16. The applicant submitted in her observations that she had been later discharged from Politika and that “her conviction [ ... ] appear[ed] to have been the cause [thereof]”." ]

[ "II. RELEVANT DOMESTIC LAW", "17. The Criminal Code of the Socialist Republic of Serbia 1977 ( Krivični zakon, published in Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. It read, in so far as relevant, as follows :", "Article 93 §§ 1 and 2", "“1. A person who insults another shall be fined or punished with imprisonment of up to three months.", "2. If the act described in paragraph 1 above is committed through the press ... the offender shall be fined or punished with imprisonment of up to six months.”", "Article 96 § 1", "“No one shall be punished for insulting another person if this has been done in ... the discharge of journalistic duties ... if there was no intention to defame.”", "18. The General Criminal Code 1977 ( Osnovni krivični zakon; published in Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/2001, and in Official Gazette of the Republic of Serbia no. 39/03) was in force from 1 July 1977 until 1 January 2006. It read, in so far as relevant, as follows :", "Article 41", "“1. The court shall impose a punishment within the statutory limits for a particular offence, bearing in mind the purpose of punishment and taking into account all [ ... ] mitigating and aggravating circumstances, and in particular: the degree of criminal liability, the motives for which the criminal offence was committed, the degree of endangering or violating the protected good, circumstances in which the offence was committed, previous life of the perpetrator, his/her personal circumstances and his /her behaviour afterwards, as well as other circumstances relating to the perpetrator ’ s life.”", "Article 42", "“ The court can impose a sanction below the statutory one:", "[ ... ]", "2) when it finds that there are especially mitigating circumstances indicating that the purpose of sanctioning can be achieved even with a milder sanction.”", "Article 59 §§ 1 and 4", "“1. A judicial warning can be given for those criminal offences for which one can be fined or imprisoned up to one year, when they were committed under such mitigating circumstances making them particularly minor.", "[ ... ]", "4. When deciding whether to give a judicial warning the court shall, bearing in mind the purpose of the judicial warning, take into account in particular the personality of the perpetrator, his/her previous life, his/her behaviour after having committed the offence, the degree of criminal liability and other circumstances under which the offence was committed.”", "19. A person who was issued a judicial warning is considered an offender and therefore he or she could be considered a repeated offender ( povratnik ) should he or she commit another criminal offence [11].", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "20. The applicant complained that her conviction for criminal insult violated her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to ... impart information and ideas without interference by public authority ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”", "21. The Government contested that argument.", "A. Admissibility", "22. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "23. The applicant maintained that her conviction for criminal insult because of the article she had written and published in Politika on 7 September 2003 had been a clear interference with her right of freedom of expression guaranteed by Article 10 of the Convention. She accepted that it was “in accordance with law” as required by Article 10 § 2 of the Convention, and that it had pursued the legitimate aim of protecting the rights of others. However, she maintained that her criminal conviction, although it had entailed a judicial warning, had been disproportionate under the circumstances of the case, in particular since it had caused her later dismissal from Politika, and represented a threat and warning to all Serbian journalists.", "24. She also submitted that the article had been balanced and, in fact, “overwhelmingly favourable” towards Ms Kandić, and that it had been clear from the context that the impugned words had only been reporting of other people ’ s opinions about her and had been taken from another magazine. In this regard, she averred that Ms Kandić did not file a criminal action against the journalists of other magazines who had initially published the impugned words, notably Serbian Danas and the American Time, even though they published them without the quotation marks too. In this regard the applicant submitted that the journalists should not be penalised for failing to place quotation marks around words and ideas that come from others, and relied on Thoma v. Luxembourg, no. 38432/97, § 64, ECHR 2001 ‑ III. The applicant also maintained that Ms Kandić was a well-known political activist and, therefore, a public figure, and that the article had been written within the public debate about Ms Kandić and her role in the investigation and prosecution of high-ranking Serbian politicians and military officers for international crimes before the ICTY.", "( b ) The Government", "25. The Government did not dispute that the applicant ’ s conviction for insult had presented an interference with her right of freedom of expression. They further maintained that this interference had been in accordance with the law, specifically Article 93 of the Criminal Code, that it had pursued the legitimate aim of protecting the reputation of Ms Kandić, who was undoubtedly a well-known public figure, and that it had been proportionate to the aim pursued, considering that no prison sentence or fine had been imposed on the applicant.", "26. They argued that the words “witch” and “prostitute”, for the use of which the applicant had been convicted, are of inherently insulting nature and that the context of the entire article clearly showed the applicant ’ s intent to insult Ms Kandić. The government accepted that these words had already been used by another journalist to describe attitudes towards Ms Kandić, but in an entirely different context. They further argued that all the positive aspects of Ms Kandić ’ s career referred to in the article had been maliciously and ironically presented. With regard to that, they maintained that the very title of the article had given a negative view of Ms Kandić, marking her as a servant of the ICTY, an institution which had been very unpopular in Serbian society; that positive characteristics of Ms Kandić had been put in quotation marks while abusive allegations had not been; that the significance of Ms Kandić ’ s accomplishments had been deliberately diminished by connecting them to extremely unpopular personalities in Serbia; and that the details about her family life, specifically the attitude of Ms Kandić ’ s son towards her work, had been taken out of context and misrepresented.", "2. The Court ’ s assessment", "(a) Whether there has been interference", "27. It is not disputed between the parties that the applicant ’ s conviction amounted to “interference by public authority” with her right to freedom of expression. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims.", "( b ) “Prescribed by law”", "28. The Court notes that the statutory basis for the applicant ’ s conviction was Article 93 § 2 of the Criminal Code. The Court holds that this provision was both adequately accessible and foreseeable, that is to say it was formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his or her conduct (see, among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 ). The Court, therefore, concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "(c ) Legitimate aim", "29. The Court notes that it is not disputed between the parties that the interference pursued one of the aims enumerated in Article 10 § 2, namely the “protection of the reputation or rights of others”.", "(d ) “Necessary in a democratic society”", "(i) General principles", "30. The relevant principles in this regard are set out in details in, for example, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-95, 7 February 2012.", "31. In particular, the Court ’ s task, in exercising its supervisory jurisdiction, is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”.", "32. When examining the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).", "33. Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). The relevant criteria in this regard are: (a) the contribution made by the article to a debate of general interest; (b) how well known is the person concerned and what is the subject of the report; (c) the conduct of the person concerned prior to publication of the article; (d) method of obtaining the information and its veracity; (e) content, form and consequences of the publication; and (f) severity of the sanction imposed (see Axel Springer AG, cited above, §§ 89-95, 7 February 2012).", "34. The Court also reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010) in respect of whom limits of critical comment are wider, as they are inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Ayhan Erdoğan v. Turkey, no. 39656/03, § 25, 13 January 2009, and Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008).", "(ii) Application of these principles", "35. The Court firstly notes that the article was written in the context of an ongoing and at the time heated public debate on the Republic of Serbia ’ s cooperation with the ICTY – a subject of great importance for Serbian society. At the time the article was published there was a high degree of animosity towards Ms Kandić from a large part of the Serbian public because of her efforts to secure the Serbian authorities ’ full cooperation with the ICTY and her activities related to the investigation of crimes committed by Serbian forces during the armed conflicts in the former Yugoslavia. The applicant ’ s statements were therefore made in the context of a debate on matters of public interest.", "36. The Court further observes that the applicant is a journalist and in that capacity her task was to write an article about Ms Kandić, a well-known human rights activist and undeniably a public figure. In so doing, she wrote, inter alia, that Ms Kandić “ [had] been called a witch and a prostitute ”. The domestic court ’ s held that by failing to put these words in quotation marks she had tacitly endorsed them as her own and convicted her for insult.", "37. While the impugned words are offensive the Court considers that it is clear from the formulation of the sentence that this is how Ms Kandić was perceived by others, not by the applicant herself. In addition, the applicant claimed before the domestic courts that the impugned words had been taken from another article written by another journalist and published in another magazine, which was indeed established as such in the domestic proceedings and acknowledged by the Government (see paragraphs 12 and 2 6 above). Therefore, it is evident, even without the quotation marks, that this was not the applicant ’ s personal opinion of Ms Kandić, but that she was merely transmitting how Ms Kandić was perceived by others. The Court has already held that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press ’ s role of providing information on current events, opinions and ideas (see Thoma, cited above, §§ 63-65). The Court does not consider that the sheer absence of quotation marks alone can be regarded as “particularly cogent reasons” capable of justifying the imposition of a penalty on the journalist (see, mutatis mutandis, Thoma, cited above, § 64 ).", "38. Furthermore, the domestic courts failed to make any balancing exercise whatsoever between Ms Kandić ’ s reputation and the applicant ’ s freedom of expression and her duty, as a journalist, to impart information of general interest. They also made no reference to the overall context of the text and the circumstances under which it was written but their findings were rather limited to the fact that the impugned words were not put in the quotation marks. Such terse and undeveloped reasoning is, in the Court ’ s view, in itself problematic as it rendered any defence raised by the applicant devoid of any practical effect.", "39. The Court cannot accept the Government ’ s argument that the applicant, through insinuations and diminution of facts, aimed to depict Ms Kandić in a negative light. The applicant made it clear in her article that the opinions on Ms Kandić were divided, offering both positive and negative aspects thereon. The article also reported that Ms Kandić had received many awards, some of them prestigious, as well as that she was campaigner for the truth on war crimes and a lonely voice of reason in Serbia, which was also written without the quotation marks, contrary to the Government ’ s submission.", "40. In particular, the Court does not consider that the impugned words can be understood as a gratuitous personal attack on, or insult to Ms Kandić. They did not refer to her private or family life, but to how she was perceived professionally. Ms Kandić, as a human rights activist, was a public figure, as acknowledged by the Government. That being so, the Court considers that she inevitably and knowingly exposed herself to public scrutiny and should therefore have displayed a greater degree of tolerance than an ordinary private individual.", "41. The Court finally reiterates that the nature and the severity of the sanction imposed are the factors to be taken into account when assessing the proportionality of the interference (see, for instance, Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004 - VI). In the present case, the domestic courts found that the applicant had committed a criminal offence of insult and issued against her a judicial warning, which could be considered an aggravating circumstance, should she commit another criminal offence (see paragraph 19 above). The Court cannot accept the Government ’ s argument that the applicant ’ s sentence was lenient. In the Court ’ s view, what matters is not that the applicant was issued a judicial warning “only”, but that she was convicted for an insult at all (see Lopes Gomes da Silva v. Portugal, no. 37698/97, § 36, ECHR 2000 - X). Irrespective of the severity of the penalty which is liable to be imposed, a recourse to the criminal prosecution of journalists for purported insults, with the attendant risk of a criminal conviction and a criminal penalty, for criticising a public figure in a manner which can be regarded as personally insulting, is likely to deter journalists from contributing to the public discussion of issues affecting the life of the community (see paragraph 19 above; see, also, Bodrožić and Vujin v. Serbia, no. 38 435/05, § 39, 23 June 2009, and Grebneva and Alisimchik v. Russia, no. 8918/05, § 65, 22 November 2016 (not yet final)).", "42. The foregoing considerations are sufficient to enable the Court to conclude that the national authorities ’ reaction to the applicant ’ s article and in particular to the impugned words was disproportionate to the legitimate aim pursued, and was therefore not necessary in a democratic society, within the meaning of Article 10 § 2 of the Convention.", "43. There has accordingly been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "44. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "45. The applicant claimed 20,000 euros (EUR) in total in respect of pecuniary and non-pecuniary damage, submitting that her conviction was a factor which led to her later discharge from Politika.", "46. The Government contested the applicant ’ s claim as excessive and unfounded. They submitted, in particular, that the applicant had offered no evidence that she had been indeed discharged and even if that had been the case, that the said conviction was related to it in any way.", "47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, in particular in view of the fact that the applicant failed to submit any proof that she had been indeed dismissed and, if so, that it was due to the conviction; it therefore rejects this claim. In respect of non-pecuniary damage the Court awards the applicant EUR 500.", "B. Costs and expenses", "48. The applicant claimed the costs and expenses incurred before the domestic courts, which amount corresponded to EUR 386 at the time ( see paragraph 15 above).", "49. The Government contested this claim.", "50. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 386 for costs and expenses in the domestic proceedings.", "C. Default interest", "51. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio, hereafter “DR”. The first applicant produced a television programme, described as a documentary, called “When the doctor knows best”, which was broadcast at 8 p.m. on 24 September 2008, and seen by 534,000 viewers. The second applicant was the first applicant ’ s superior and responsible for the content of the programme.", "7. The television programme concerned the treatment of pleural mesothelioma cancer, notably at Copenhagen University Hospital ( Rigshospitalet ), where Consultant S was in charge of treatment. It focused on two types of chemotherapy medication, Alimta, produced by L, and Vinorelbine, produced by F. Copenhagen University Hospital and S used Vinorelbine as first-line treatment in combination with Cisplatin or Carboplatin, depending on whether the treatment was related to an operation (operable patients) or to prolonging life and relieving pain and symptoms (inoperable patients).", "8. Three experts participated in the programme : a medical doctor from Karolinska Hospital in Sweden, a professor from Switzerland and a medical doctor from Grosshandorf Hospital in Germany. They all used Alimta as first-line treatment, most often in combination with Cisplatin or Carboplatin. The programme followed four patients and their relatives, who told their stories, and a narrator spoke as a voice-over throughout the programme.", "9. In preparation for the programme, the first applicant had carried out research on the subject which included, inter alia, the following.", "10. On 20 September 2004 the European Union had approved the marketing of Alimta in combination with Cisplatin for treatment of patients with inoperable pleural mesothelioma cancer. The background for the approval was, among others, research which had been carried out examining the effect of treatment with Alimta in combination with Cisplatin as compared to treatment with Cisplatin alone (a phase III trial, see paragraph 14 below) as first-line therapy.", "11. In July 2007 the Minister for Internal Affairs and Health replied to various questions posed by Members of Parliament as to the treatment of pleural mesothelioma cancer in Denmark. The Minister replied, inter alia, that there was no proof that an Alimta -based treatment was more efficient than other chemotherapy-based treatments, including that offered in Denmark; that the combination of Vinorelbine and Cisplatin, which was used at Copenhagen University Hospital, resulted in a one-year survival rate of 50% and a median lifetime of 12 months, which was exactly the survival rate from using the combination of Alimta and Cisplatin, but that there had been no direct comparison of the two treatments; and that there was no internationally accepted standard chemotherapy for the treatment of pleural mesothelioma cancer, but that several single and combined treatments were used.", "12. On 11 June 2008 Copenhagen University Hospital produced a memorandum about pleural mesothelioma cancer and its treatment, which was sent to DR. It stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two ‑ combination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008. The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of 90,000 Danish kroner (DKK), equal to approximately 12,000 Euros (EUR), received by S from company F, which produces Vinorelbine. The money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved.", "13. Having received the above-mentioned memorandum, the first applicant again contacted the professor from Switzerland and the medical doctor at Grosshandorf Hospital in Germany. In essence, they confirmed in subsequent emails of 2 and 21 July 2008 that since there had been no direct comparative clinical studies, there was no scientific evidence that one two ‑ combination regime was superior to another two-combination regime.", "14. Medical research studies involving human subjects are called clinical trials. They are divided into different stages, called phases. Generally, it can be said that the earliest phase trials may look at whether a drug is safe or at its side-effects. A later phase II trial aims to find out whether the treatment works well enough, for which types of cancer the treatment works, more about side effects and how to manage them and more about the best dose to use. A later phase III trial aims to test whether a new treatment is better than existing treatments (standard treatment). These trials may compare a completely new treatment with the standard treatment or with different doses or ways of giving a standard treatment.", "A. The proceedings before the courts", "15. Subsequent to the broadcast on 24 September 2008 of the television programme, on 27 October 2008 Copenhagen University Hospital and S instituted defamation proceedings before the Copenhagen City Court ( Københavns Byret ) against the Director of DR and the two applicants, maintaining that the latter, in the programme in question, had made direct and indirect accusations, covered by Article 267 of the Penal Code ( Straffeloven ), against Copenhagen University Hospital and S, of malpractice regarding certain patients suffering from pleural mesothelioma cancer, allegedly resulting in the patients ’ unnecessary death and shortening of life, in the interest of S ’ s professional prestige and private finances.", "16. Before the City Court, the applicants, S, and Medical Director H for Copenhagen University Hospital gave evidence.", "17. The first applicant stated, inter alia :", "“ ... that she had not criticised Copenhagen University Hospital for improper treatment causing death. Her message was only to point out that the substance of Alimta had been better documented than the substance of Vinorelbine. She had collected statements from patients and experts, but could not state herself whether Alimta was a better product than Vinorelbine ... The experts had not stated whether Alimta in combination with another product was better than Vinorelbine in combination with another product. However, all experts had emphasised that Alimta had been evaluated in a phase III trial, for which reason it was a more thoroughly tested product. ... her questions had been answered during her conversations with professor M on 19 October 2007 and S on 22 October 2007. Subsequently no one had been willing to answer her questions. That was the only real conversation she had had with S. The next time she had called him, he had put down the receiver. When it had not been possible for her to get any response to her many points of criticism, she had contacted H ... she had wanted statements from both H and S as the programme would be unbalanced if they were not heard ... Some found that Alimta had been better documented than Vinorelbine. She was not aware of any trial demonstrating that a combination with Alimta was better than a combination with another medicinal product ... ”.", "S stated, inter alia, the following:", "“ Alimta has been used for second-line therapy in Denmark since 2004, and since 2007 as first-line therapy. Patients had been given the impression in the media that Alimta was a miracle cure. Therefore Copenhagen University Hospital had introduced it as an option. Today, Alimta is used in combination with Carboplatin as the standard therapy for inoperable patients ... Sometimes in autumn 2008, the standard therapy for operable patients had been changed to Cisplatin in combination with Alimta. If some patients were offered Alimta everybody had to be offered Alimta ... After the programme had been broadcast ... patients started mistrusting the Vinorelbine therapy. Afterwards it was not possible to perform the trial [phase II] on this drug. Nor would it be possible to obtain funding for the trial. Therefore no trial had been performed of Vinorelbine ... he had provided the information included in professor M ’ s memorandum of 23 September 2008 ... he had talked to [the first applicant] several times and had spent a lot of time and energy on explaining cancer therapy ... he had also lost confidence in [the first applicant] ... ”", "H stated, among other things:", "“ ... The approval of Alimta by the Danish Medicines Agency for the treatment of mesothelioma only means that a marketing authorisation has been granted for the drug, which means that advertisement of the product is permitted. Vinorelbine has also been approved by the Danish Medicines Agency, but for a wide range of oncological therapies ... in 2003 when Alimta was tested [phase III] the bar had been set quite low. The study compared Alimta with a clearly inferior treatment that would not actually be offered to anybody. It would have been more relevant to study Alimta in combination with Cisplatin versus Vinorelbine with Cisplatin .... S has made a phase II trial of the standard therapy [ Vinorelbine ] ... Subsequently the standard therapy regimen has been expanded to include Alimta, which is not a better product than Vinorelbine, but eight times more expensive ... if two drugs are equally effective, but one of them is eight times more expensive than the other, patients will be offered therapy using the cheaper drug. ... The standard therapies now offered by Copenhagen University Hospital are Vinorelbine in combination with Cisplatin for inoperable patients and Alimta in combination with Cisplatin for operable patients ... the shift to Alimta as the standard therapy at Copenhagen University Hospital did not reflect that Alimta was medically better. The [applicants ’ ] programme had had a large impact as patients were asking not to be treated with Vinorelbine. Copenhagen University Hospital had therefore had to change medical products because patients had the clear impression that Vinorelbine was not as good as Alimta ... It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, responding to inquiries from [the first applicant], and huge efforts had been made to accommodate her requests ... the programme had created distrust towards both Copenhagen University Hospital and S and had created uncertainty in both patients and relatives. He had received 50 to 100 “hate mails” himself ... ”", "18. By a judgment of 9 April 2010, the Copenhagen City Court found against the applicants (and the Director of DR) and sentenced them each to 10 day-fines of 1,000 Danish Kroner (DKK). The allegations were declared null and void. The reasoning was as follows:", "“ ...", "Based on the evidence, the City Court accepts as a fact that in 2004, following a phase III trial, EMEA approved Alimta in combination with Cisplatin for treating patients suffering from inoperable malignant pleural mesothelioma and that subsequently the same was approved by the Danish Medicines Agency. The court also accept as a fact that Vinorelbine is a drug dating back more than 20 years whose effect had been documented by clinical experience and approved by the Danish Medicines Agency for a wide range of oncological therapies. Finally, the court also accepts as a fact that it has not been documented that Alimta therapy in combination with a platin medicinal product is more effective than Vinorelbine therapy in combination with a platin medicinal product.", "As regards the term “experimental drug” the court accepts as a fact that a drug administered to patients in a trial is referred to as an experimental drug, no matter whether the same drug is the standard therapy offered outside the trial setting.", "No matter that [the applicants] are deemed to have been aware of the above circumstances following their comprehensive research of the matter, it was said in the programme that, for dying patients, [S and Copenhagen University Hospital] had prescribed a “non-approved chemotherapy regimen” not approved for the diagnosis or which was not “the correct chemotherapy”, and that [S and Copenhagen University Hospital] used an “experimental drug”, the “worst-case scenario being that patients would die earlier than if they had been treated with an approved substance”, or that it would have “fatal consequences”. Moreover, the phrase “the only drug with a known effect” was used.", "Since no account was given in the programme of the above-mentioned trials and approval process and the terminology applied for that process, the court finds that it would seem to a non-professional viewer that Alimta was the only effective drug for mesothelioma, particularly because the programme linked the treatment of two patients with Vinorelbine to their death, whereas the prospect of several more years to live was held out to the one patient who had been given Alimta therapy in Germany.", "Moreover, the programme also linked S ’ s use of Vinorelbine to his personal esteem and his “personal research account”, although [the applicants] had been made aware of the research grant management procedure though Professor M ’ s memorandum of 23 September 2008 before the broadcast.", "Since no account was given either of the procedure for managing research grants, the court also finds in this respect that it would seem to a non-professional viewer that S had a personal financial interest in starting Vinorelbine treatment rather than Alimta.", "The [applicants] are therefore considered to have violated Article 267 of the Penal Code.", "According to the information on [the applicants ’ ] knowledge after their comprehensive research of the matter, the court finds no basis for exempting them from punishment or remitting the penalty under Article 269 of the Penal Code, compare also Article 10 of the Convention.", "...", "[The applicants] are furthermore jointly and severally liable for paying legal costs of DKK 62,250.”", "19. On appeal, on 10 June 2011 the judgment was upheld by the High Court of Eastern Denmark ( Østre Landsret ) with the following reasoning:", "“In the introduction to the programme ‘ When the doctor knows best ’ a narrator states, among other things: ‘ A Danish doctor is entering a medical congress to show his research results. For years he has gone his own way, he has treated dying patients with chemotherapy that is not approved. ’", "Later during the programme, it is stated at which hospitals one can receive treatment for pleural mesothelioma cancer, that these hospitals co-operate with Copenhagen University Hospital, and a reference is made to a named Consultant, S, head of the Scandinavian Centre for treatment of pleural mesothelioma cancer.", "During the various interviews, a narrator states, inter alia :", "- ‘ The doctor does not give his patients the only approved medication. Instead, he uses a test medication. In the worst scenario, that may result in the patients dying earlier than if they had been given the approved substance. ’", "- ‘ There is only one approved chemotherapy against pleural mesothelioma cancer, but that is not offered to SP [one of the patients followed in the programme ]. The doctors chose to treat her with a substance that is not approved for the diagnosis, and whose effect on pleural mesothelioma cancer is not substantiated. ’", "- ‘ However, that chemotherapy turned out to have huge consequences for her [SP]. ’", "- ‘ S can freely choose the medication that he thinks is best. There is only one treatment which, in comparative studies, has proved to have an effect on pleural mesothelioma cancer. Accordingly, that is the only medication which is approved as treatment. That medication is called Alimta. However, S chose not to use that medication on his patients. ’", "- ‘ Thus, it has not been proved whether Vinorelbine works. According to the calculations made by DR, close to 300 patients in Denmark have been given test medication. In the worst scenario, that may result in patients dying earlier than if they had been given the approved medication. ’", "- ’ For her [SP] the lack of effect of treatment by Vinorelbine turns out to have had fatal consequences. ’", "- ‘ The family K ask themselves why S goes his own way. They suspect that he has other interests than those of the patients. That suspicion grows, when they talk to SK ’ s personal doctor. ’", "- ‘ It turns out, however, that S may also have had other reasons for choosing Vinorelbine. Because he has used this medication in medical tests on the patients. In a phase when they are fighting for their lives. ’", "- ’ The question remains: why does S carry out tests with Vinorelbine? Could it have something to do with the prestige which is implicit in having research articles published? ’", "- ‘ We do not know whether it is prestige that impels S. ’", "- ‘ Thus, S will not acknowledge what leading experts agree on; [namely] that Alimta is the only medication whose effect is substantiated. ’", "- ‘ Here it turns out that S has received more than DKK 800,000 over the last five and a half years from the company F. That is the company behind the test medication Vinorelbine. The money has been paid into S ’ s personal research account. DKK 90,000 is earmarked for the tests. S withheld that information. ’", "The programme ends by informing us, among other things, that two of the patients who were interviewed have passed away. The narrator says, inter alia :", "‘ TJ, who was part of S ’ s tests with Vinorelbine, died on 4 January 2008. ’", "With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication ( Vinorelbine ), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [ Vinorelbine ] were S ’ s professional prestige and personal finances.", "Against this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they were making such an allegation by way of their presentation of the programme.", "The applicants have not attempted to establish the truth of the allegation, but have submitted that the allegation shall be unpunishable by virtue of Article 269 (1) of the Penal Code as they acted in lawful protection of an obvious public interest or the interest of others or, in the alternative, that punishment should be remitted under Article 269 (2) of the Penal Code because they were justified in regarding the allegations as true.", "These provisions must, in connection with Article 267 of the Penal Code, be understood in the light of Article 10 of the Convention on the protection of freedom of expression. A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ ( ‘ public watchdog ’ ), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism.", "On the basis of the information in the case, including the research material that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta -based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests.", "Against this background, including the fact that the word ‘ approved ’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on an incorrect factual basis, of which they must have been aware via the research material.", "The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press ’ s role as ‘ public watchdog ’, but it cannot justify an allegation, which is built on a factually incorrect basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S. The allegations cannot be justified on the grounds that Copenhagen University Hospital and S refused to participate in the programme.", "Against this background, and since in relation to Article 10 there is no interest to protect when there is no factual basis for the accusations, the allegations are not unpunishable under Article 269 (1), nor is there any basis for remitting the punishment under Article 269 (2) [of the Penal Code].", "It is an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR ’ s homepage, by means of which the accusations had a significant spread.", "Accordingly, [the High Court] agrees [with the Copenhagen City Court ’ s judgment] that [the applicants] be fined under Article 267, and that the allegations be declared null and void by virtue of Article 273 (1).", "The High Court thus dismisses the appeal and upholds the judgment of the Copenhagen City Court.", "The applicants shall be jointly and severally liable for paying legal costs of the High Court appeal to Copenhagen University Hospital and S, in the amount of DKK 90,000, which constitutes the legal fee inclusive of VAT. In fixing the amount, the High Court took into account the scope and duration of the case.”", "20. On 27 October 2011 the Appeals Permission Board ( Procesbevillingsnævnet ) refused the applicants ’ request for leave to appeal to the Supreme Court ( Højesteret ).", "B. Complaints lodged with the Patient Insurance Association", "21. Subsequent to the broadcast on 24 September 2008 of the television programme, four complaints were lodged with the Patient Insurance Association ( Patientforsikringen ) relating to the issues raised by the programme. A press release published on the Associations ’ website on 9 March read as follows:", "“As of today, the Patient Insurance Association has received four complaints relating to the treatment of mesothelioma patients with combinatorial drugs other than Carboplatin and Alimta. That treatment was questioned by the Danish Broadcasting Corporation (DR) in a documentary programme in September 2008.", "The Patient Insurance Association has received four complaints relating to the criticism raised. This means that the persons claiming compensation are either patients or their dependants, one of the reasons being their belief that the combinatorial drugs administered to treat the disease were incorrect ones.", "All four complaints have been refused, one of the reasons being that the independent medical oncologists who assessed the cases found that it was in compliance with optimum medical standards to treat patients with the selected combination therapy.", "Two of the cases have been appealed against to the National Agency for Patients ’ Rights and Complaints ( Patientskadeankenævnet ). The National Agency for Patients ’ Rights and Complaints upheld the decision of the Patient Insurance Association, finding, inter alia: ’ ... [ patients ] were offered Carboplatin and Vinorelbine, which must be considered to be as active as other combinations with a favourable profile of adverse reactions ’. The other appeal does not concern the issue of combination therapy.”" ]

[ "II. RELEVANT DOMESTIC LAW", "22. The relevant provisions of the Danish Penal Code applicable at the time read as follows:", "Article 267", "“Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to imprisonment not exceeding four months.”", "Article 268", "“If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation, and the punishment mentioned in Article 267 may increase to a term not exceeding two years.”", "Article 269", "“1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others.", "2. The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.”", "Article 272", "“The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.”", "Article 273", "“1. If a defamatory allegation is unjustified, a statement to that effect shall, at the request of the injured party, be included in the sentence.", "2. Any person convicted of defamation may be ordered at the request of the insulted person to pay to the insulted person an amount fixed by the court to cover the costs of promulgating the judgment conclusion alone or also the grounds in one or more official gazettes. This also applies even if the judgment only provides for retraction under the provision of subsection 1.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "23. The applicants complained that the judgment of the High Court amounted to a disproportionate interference with their right to freedom of expression guaranteed by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "24. The Government contested that argument.", "A. Admissibility", "25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "26. The applicants recognised that their conviction was prescribed by law and that, in respect of S, it pursued a legitimate aim.", "27. They submitted, however, that Copenhagen University Hospital could not, in its capacity as a public body, rely on “the protection of the reputation or rights of others” under Article 10 of the Convention and referred in this respect, inter alia, to the dissenting opinion in Romanenko and Others v. Russia, no. 11751/03, 8 October 2009. In the applicants ’ opinion it would seriously harm democratic principles and legal certainty if the State were able to protect itself from public scrutiny by limiting the freedom of expression of a journalist where a public body is involved. The judiciary is the only public authority whose protection is capable of constituting a legitimate aim within the meaning of Article 10 § 2.", "28. Moreover, they maintained that the interference constituted a breach of their rights as journalists as the interference was not necessary in a democratic society.", "29. The main purpose of the programme was to perform a critical assessment of the treatment of mesothelioma at Copenhagen University Hospital, compared to the treatment by other leading experts, and to raise questions about whether patients should have been informed of other therapeutic options than Vinorelbine. It presented the patients ’ and the families ’ frustrations over being denied the choice of their preferred chemotherapy, especially given the fact that Alimta had undergone phase III examination and thus was more thoroughly tested than Vinorelbine. The programme was not scientific and did not claim to give a scientific account of the advantages of one cancer treatment over the other.", "30. The documentary was based on substantive and significant journalistic research carried out over a period of approximately one year. It included international medical experts and a very broad range of open source material. The applicants acted in good faith and in full compliance with press ethics when preparing and airing the programme. Both S and Copenhagen University Hospital were invited to comment on the allegations in the documentary on numerous occasions. The memorandum of 11 June 2008 produced by Copenhagen University Hospital was not suitable for inclusion in the documentary as it did not answer the specific questions asked by the applicants.", "31. The subject matter, that the patients and their families felt that they were not being properly informed and given the choice of which chemotherapy treatment they preferred at Copenhagen University Hospital, was clearly of public interest, and the documentary gave rise to a broad public debate. The impact was significant and had various important consequences, inter alia, a public demand for Alimta therapy and a change in practice at Copenhagen University Hospital, all of which highlighted why this kind of journalism was essential and indispensable in a democratic society.", "32. The domestic courts failed to carry out a careful balancing exercise between the right to impart information and protection of the reputation of others. They gave a distorted picture of the content of the documentary and the responsibility of the journalist reporting what was being said by others. The applicants noted, for example, that the charge against them did not relate to any specific statements in the documentary and that the domestic courts did not mention any specific statements by the applicants which were considered incorrect. Moreover, the voice-overs provided in the programme should not be considered in isolation, but in the context of the journalistic production as a whole with respect for the function of the documentary and of the documentary genre as a dissemination tool for statements of named third parties. The High Court performed a crucial change of the conclusions of the documentary by finding that the programme gave a defamatory impression that Alimta was a superior product and that S had caused unnecessary death for his personal benefit. This was clearly not stated in the documentary. The judicial authorities placed a disproportionate and unfair burden on the applicants requiring, under criminal law, that they provide medical documentation about Alimta compared to Vinorelbine. The wording of the High Court judgment also indicated that there had been no specific assessment by the judges of the value of the documentary to general society.", "33. Finally, the applicants submitted that the penalties imposed were disproportionate to the harm alleged and likely to deter journalists from performing their essential role as “public watchdogs” and keeping the public informed about matters of public interest. They pointed out that they had received criminal convictions, had had to pay fines and there had been the final “punishment” of paying costs to S and Copenhagen University Hospital.", "34. The Government maintained that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation of others. They referred to case-law in which the Court had presupposed that a public body could also fall within “the protection of the reputation or rights of others”, for example, Romanenko and Others v. Russia, cited above, § 39; Lombardo and Others v. Malta, no. 7333/06, §§ 50 and 54, 24 April 2007; and Thorgeir Thorgeirson v. Iceland, 25 June 1992, Series A no. 239. They further contended that since it was recognised that the reputation of the police may be a legitimate aim, the same should apply to several other public bodies. The conditions at a public hospital constitute an issue of considerable public interest and entail a need for wider limits for public scrutiny, but this is partly for other reasons than for a public body exercising power in the traditional sense. Public interest may therefore be deemed to be interconnected with the relevance of the activities of the hospital to the life and health of individuals. Allegations made on a factually incorrect basis will affect the patient ’ s confidence in the treatment offered and may weaken the possibilities of the hospital to function in an optimal manner. In addition, it would amount to unfounded arbitrariness in the protection of the health interests of the contracting States if they were to have the possibility of interfering with attacks on the reputation of private hospitals but not of public hospitals.", "35. With respect to the proportionality test, the Government found it of vital importance that the case at hand did not concern dissemination of defamatory statements made by others. It concerned defamatory statements independently worded and made by the applicants, notably when they had used the voice-over to convey the impression to the viewers that improper treatment had been given and that this was S ’ s deliberate choice, motivated by his desire for professional esteem and his personal financial situation. This should lead to a stricter assessment of the applicants ’ defamatory statements when balanced against the protection of the reputation or rights of S and Copenhagen University Hospital.", "36. The Government also submitted that, although the High Court did not make an explicit classification of the allegations, the wording of the reasoning clearly illustrated that it considered them to be allegations of facts, at least those elements of the allegations that did not relate to S ’ s motives.", "37. Referring to the High Court ’ s finding, the Government maintained that the applicants did not act on a factually correct basis, nor did they provide reliable and precise information in accordance with the ethics of journalism when making their very serious allegations. They did not act in good faith. Among other things, they deliberately omitted to inform the viewers that according to the research material available to them, the effect of Vinorelbine had been documented, and that there was no basis for stating that Alimta -based chemotherapy was more effective than the Vinorelbine ‑ based treatment offered by Copenhagen University Hospital. They also omitted to mention that Copenhagen University Hospital, in a memorandum of 11 June 2018 to the applicants, had given a thorough account of the reasons for the medical product chosen, and an explanation of the research, which emphasised that the doctors involved did not themselves benefit financially. Furthermore, as stated by the High Court, by not defining the term “approved” or the difference between a drug approved for treatment and a drug approved for marketing, and by consistently using the term “experimental drug”, the applicants made accusations resting on a factually incorrect basis, of which they must be deemed to have become aware through the research material.", "38. In the assessment of the nature and seriousness of the defamation the Government found that great importance had to be attached to the fact that audio-visual media are very effective, and that the allegations were made in a television programme by a national television company which is generally perceived as highly reliable.", "39. The Government fully recognised that the subject at issue was of considerable public interest, for which reason a broader protection of the freedom of expression applies. The aim could have been achieved, however, without making the impugned accusations. They also pointed out that the High Court found that it had not been substantiated that there was any medical difference between Vinorelbine and Alimta, which was also the conclusion of the independent medical oncologist of the Patient Insurance Association. The changes of treatment regime at Copenhagen University Hospital caused by the programme thus illustrated that allegations made by the press on a factually incorrect basis may harm individuals ’ confidence in the national health authorities.", "40. Finally they pointed out that the applicants had been given very mild sentences.", "2. The Court ’ s assessment", "(a) Whether there was an interference prescribed by law", "41. It is common ground between the parties that the impugned judgment constituted an “ interference by [a] public authority” with the applicants ’ right to freedom of expression as guaranteed under the first paragraph of Article 10 and that it was prescribed by law.", "(b) Whether it pursued a legitimate aim", "42. The applicants disputed that Copenhagen University Hospital, being a public body, could rely on “the protection of the reputation or rights of others” under Article 10 of the Convention and referred in this respect, inter alia, to the dissenting opinion in Romanenko and Others v. Russia (cited above).", "43. The Court reiterates that in Thorgeir Thorgeirson v. Iceland (cited above, § 59), concerning charges for defamation of an unspecified member of the police, it was not disputed, or questioned by the Court, that the applicant ’ s conviction and sentence were aimed at protecting the “reputation ... of others” and thus had a legitimate aim under Article 10 § 2 of the Convention.", "44. Moreover, in Romanenko and Others v. Russia (cited above, § 39), concerning a court ’ s management department, being a public body, the Court acknowledged “that there may be sound policy reasons to decide that public bodies should not have standing to sue for defamation in their own capacity; however, it is not its task to examine the domestic legislation in the abstract but rather to consider the manner in which that legislation was applied to, or affected, the applicant in a particular case”. Thereafter, it went on to examine the issue in the analysis of the proportionality of the interference.", "45. Likewise, in Lombardo and Others v. Malta (cited above, § 50) although stating that it is only in exceptional circumstances that a measure proscribing statements criticising the acts or omissions of an elected body such as a council can be justified with reference to “the protection of the rights or reputations of others”, the Court was prepared to “assume that this aim can be relied on“, and went on to the proportionality test.", "46. Furthermore, in Kharlamov v. Russia (no. 27447/07, § 25, 8 October 2015) concerning a University ’ s authority, the Court went on to consider the issue in the analysis of the proportionality of the interference. It did state, though (ibid. § 29), that the protection of the University ’ s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). The latter reference concerned a State-owned company in respect of which the Court observed (ibid. § 22);", "“ ... the impugned criminal charges were pressed by a company which undisputedly has a right to defend itself against defamatory allegations. In this context the Court accepts that, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009 ‑ ...). However, there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one ’ s dignity, for the Court interests of commercial reputation are devoid of that moral dimension. In the instant application, the reputational interest at stake is that of a State-owned corporation; it is thus a commercial one without relevance to moral character.”", "47. Having regard to the above-cited case-law, the Court is not convinced by the applicants ’ submission that the judiciary is the only public authority whose protection is capable of constituting a legitimate aim under Article 10 § 2.", "48. In the present case, the High Court found that the applicants, as producer of the programme and as chief sub-editor, had made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients, and that such an accusation was likely to disparage Copenhagen University Hospital and S in the eyes of their fellow citizens as set out in Article 267 of the Penal Code (see paragraph 19 above).", "49. The Court notes, in addition, that the impugned allegations were strongly linked to S and his alleged motives for using the product Vinorelbine on his patients suffering from mesothelioma. The allegations were also found to be defamatory for Copenhagen University Hospital which, in the Court ’ s view, rather acted as the representative for its unnamed management and staff, who were also concerned by the accusations in the programme, than being a mere institution representing its interests in the form of prestige or commercial success. The case thus appears comparable to the situation in Thorgeir Thorgeirson v. Iceland (cited above). In such circumstances the Court can agree with the Government that there is no basis in the notion of “others” set out in the second paragraph of Article 10 to distinguish between attacks on the reputation of medical staff at private hospitals as opposed to public hospitals.", "50. Having regard thereto, and to the particular circumstances of case, the Court concludes that also in respect of Copenhagen University Hospital, the applicant ’ s conviction and sentence were aimed at protecting the “reputation ... of others” and had a legitimate aim under Article 10 § 2 of the Convention.", "(c) Whether the interference was necessary in a democratic society", "( i ) General principles", "51. The principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well ‑ established in the Court ’ s case-law (see, among other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 131 to 132, ECHR 2015, with further references). The Court has to examine the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts.", "52. In this context, the Court recalls that the interference aimed at protecting the reputation of an individual, consultant S, as well as a public body in its capacity of representing its unnamed staff, the University Hospital (see paragraphs 49 -5 0 ). As regards, in particular, protection of the reputation of an individual, the Court has held that a person ’ s reputation, even if that person is being criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore falls within the scope of his or her “private life”. In order for Article 8 to come into play, though, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, inter alia, (see Delfi, cited above, § 137; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009).", "53. Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to respect for private life and the right to freedom of expression, the Court has developed general principles emerging from abundant case-law in this area (see, among other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83 to 93, ECHR 2015 (extracts)). The criteria which are relevant when balancing the right to freedom of expression against the right to respect for private life are, inter alia : the contribution to a debate of general interest; how well-known the person concerned is and what the subject of the report is; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed (see, for example, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 165, ECHR 2017 (extracts); Axel Springer AG v. Germany [GC], cited above, §§ 83 and 89 to 95, 7 February 2012 and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108 to 113, ECHR 2012).", "54. Finally, the Court reiterates that where the national authorities have weighed up the freedom of expression with the right to private life in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see, inter alia, Von Hannover v. Germany (no. 2) [GC], cited above, § 107, Axel Springer AG v. Germany [GC], cited above, § 88; Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014; and Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 92 ).", "55. Even though the interference aimed at protecting the reputation of the University Hospital, which is covered by “reputation of ... others” in Article 10 § 2, and consultant S, who is not only covered by the same provision but who may also rely on the right to respect of private life as protected by Article 8 § 1 of the Convention, the Court will proceed with assessing the proportionality of the interferences on the basis of the same criteria (see paragraph 53 above) in relation to both the University Hospital and consultant S.", "(ii) Application of those principles to the present case", "( α ) The subject matter of the programme and its contribution to a debate of general interest", "56. The applicants maintained that the main purpose of the programme was to perform a critical assessment of the treatment of mesothelioma at Copenhagen University Hospital, compared to treatment by other leading experts, and to raise questions about whether patients should have been informed of other therapeutic options than Vinorelbine. It presented the patients ’ and the families ’ frustrations over being denied the choice of their preferred chemotherapy, especially given the fact that Alimta had undergone phase III examination and thus had been more thoroughly tested than Vinorelbine. The programme was not scientific and did not claim to give a scientific account of the advantages of one cancer treatment over another.", "57. It is evident from the judgments of the domestic courts, though, that the programme also raised the question of whether the applicants had made, directly and indirectly, allegations that S and Copenhagen University Hospital had given certain patients suffering from mesothelioma improper treatment resulting in their unnecessary death and the shortening of their lives in order to promote S ’ s professional esteem and personal financial situation.", "58. The domestic courts acknowledged that such a subject was of public interest. In fact, the High Court pointed out in its judgment of 10 June 2011 that the matter was an issue of very considerable public interest by stating the following:", "“A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ ( ‘ public watchdog ’ ), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism.”", "59. The Court agrees with the domestic courts that the programme dealt with issues of legitimate public interest.", "( β ) How well-known the person concerned is and his conduct prior to the programme", "60. In the present case, the impugned criticism was directed at S and Copenhagen University Hospital, being a public hospital, including its unnamed management and staff, who were also concerned by the accusations in the programme (see paragraph 49 above). They were all vested with official functions. The Court reiterates in this respect that the limits of acceptable criticism are wider as concerns public figures than private individuals (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], cited above, §§ 117 to 123, with further references). The Government also accepted that in the present case, there was a need for wider limits for public scrutiny, not because Copenhagen University Hospital could be compared to a public body exercising power in the traditional sense, but rather because the activities of the hospital and its conditions had an impact on the life and health of individuals. A similar view was expressed by the High Court (see paragraph 58 above) when pointing out that in respect of public hospital treatment, when balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale.", "( γ ) Content, form and consequences of the impugned programme", "61. The domestic courts found that the applicants in the programme had made allegations that S and Copenhagen University Hospital had given certain patients suffering from mesothelioma improper treatment, resulting in their unnecessary death and the shortening of their lives to promote the professional esteem and personal financial situation of S. More precisely, in its judgment of 10 June 2011, the High Court found, after having seen the programme and by quoting various voice- overs that:", "“With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication ( Vinorelbine ), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [ Vinorelbine ] were S ’ s professional prestige and personal finances.", "On this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they made such an allegation by way of their presentation of the programme .”", "62. It further concluded that those accusations rested on a factually incorrect basis:", "“ ... On the basis of the information in the case, including the research material, that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta -based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests.", "Against this background, including the fact that the word ‘ approved ’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on a wrong factual basis, of which they must have been aware via the research material.”", "63. The Court has no reason to call into question those conclusions reached by the High Court.", "64. The Court is also satisfied that the accusations against S reached the level of seriousness required to fall within the scope of Article 8 of the Convention (see paragraph 52 above).", "65. The Court reiterates that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference and that the audio-visual media have a more immediate and powerful effect than the print media (see, for example, Jersild v. Denmark, judgment of 23 September 1994, § 31, Series A no. 298). The High Court found that it was an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR ’ s homepage, by means of which the accusations had a significant spread. The Court notes, in addition, that the programme was broadcast by one of the two national television stations in Denmark and described as a “documentary”, which could add to the viewers ’ expectations that they would be presented with the truth.", "66. The applicants maintained that the impact of their programme was significant and had various important consequences, inter alia, a public demand for Alimta therapy and a change in practice at Copenhagen University Hospital, all of which highlighted why this kind of journalism was essential and indispensable in a democratic society.", "67. The Court points out, however, that the domestic courts assessed the material before them, which the applicants possessed, and concluded that there was no documentation to show that Alimta therapy in combination with a platin medicinal product was more effective than Vinorelbine therapy in combination with a platin medicinal product, nor was there substantiation or basis for believing that an Alimta -based treatment was more efficient than the treatment offered by Copenhagen University Hospital. The Court has found no reason to call into question those conclusions.", "68. It therefore also accepts that the reason why, after the programme had been broadcast, the public demand for Alimta therapy may have increased and Copenhagen University Hospital changed its standard therapy for operable patients to Cisplatin in combination with Alimta, was that the programme, on an incorrect factual basis, had encouraged patients to mistrust Vinorelbine therapy, as also stated by S and H before the City Court.", "69. The Court further observes that before the City Court, H added that the programme had created distrust towards both Copenhagen University Hospital and S, that it had created uncertainty in patients and relatives, and that he himself had subsequently received 50 to 100 “hate mails”.", "( δ ) Method of obtaining the information and its veracity", "70. Before the domestic courts, the applicants maintained that they acted in good faith and in full compliance with press ethics when preparing and airing the programme and that the documentary was based on substantive and significant journalistic research carried out over a period of approximately one year. It included international medical experts and a very broad range of open source material. The first applicant also stated that S and Copenhagen University Hospital had been invited to comment on the allegations in the documentary on numerous occasions.", "71. The applicants had received the memorandum of 11 June 2008 (see paragraph 12 above) about pleural mesothelioma cancer and its treatment produced by Copenhagen University Hospital, which stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two ‑ combination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008 (see paragraph 13 above). The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of DKK 90,000 received by S from company F, and stated that the money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved. The applicants stated that they did not find the memorandum suitable for inclusion in their documentary as it did not answer the specific questions asked by them.", "72. The Court notes that the domestic courts did not dispute that the applicants had conducted thorough research. As stated above, however, based on the particulars of the case, which included the research material, which the applicants had possessed before the programme was broadcast, they found that the applicants had made accusations resting on a factually incorrect basis, of which they must be deemed to have become aware through the research material. In conclusion, the High Court stated:", "“The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press ’ s role as ‘ public watchdog ’, but it cannot justify an allegation, which is built on a factually wrong basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S ... ”", "73. Again, the Court sees no reason to call into question the High Court ’ s conclusions. It reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the provision that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Bédat, cited above, § 58 ).", "74. It notes in particular that there is no indication that the judicial authorities placed a disproportionate and unfair burden on the applicants, including, as alleged by them, requiring under criminal law that they provide medical documentation about Alimta compared to Vinorelbine.", "75. Finally, the High Court stated that the allegations made by the applicants could not be justified by the fact that Copenhagen University Hospital and S refused to participate in the programme. The Court notes in addition that it is not in dispute that Copenhagen University Hospital participated and cooperated during the preparation of the programme, by replying to questions by the applicants and furnishing them with relevant information, including the memorandum of 11 June 2008 produced by S. In this respect the Court cannot ignore the statement by H before the City Court (see paragraph 19 above) that: “It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, on responding to inquiries from [the first applicant], and huge efforts were made to accommodate her requests”.", "( ε ) Severity of the sanction imposed", "76. The defamation proceedings brought by S and Copenhagen University Hospital against the applicants ended in an order declaring the allegations null and void, a criminal conviction of the applicants and a sentence for each of them amounting to 10 day-fines of DKK 1,000 ( a total of 10 000 DKK equal to approximately 1,340 euros (EUR) ).", "77. The Court notes that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies (see for example, Perinçek v. Switzerland [GC], no. 27510/08, § 273, ECHR 2015 (extracts). In the circumstances of the present case, however, the Court does not find the conviction and the sentence excessive or to be of such a kind as to have a “chilling effect” on the exercise of media freedom (see, inter alia, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR 2004 ‑ XI, with further references).", "78. The applicants emphasised that they had also been punished by having to pay legal costs to S and Copenhagen University Hospital. Those costs amounted to DKK 62,250 (equal to approximately EUR 8,355) before the City Court and DKK 90,000 (equal to approximately EUR 12,080) before the High Court. The Court has found that the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, for example, Jersild v. Denmark, cited above, § 35 and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III). In the present case, however, the Court finds that the decision that the applicants pay legal costs does not appear unreasonable or disproportionate (see, by contrast, MGN Limited v. the United Kingdom, no. 39401/04, § 219, 18 January 2011).", "( ζ ) Conclusion", "79. In the light of all the above-mentioned considerations, the Court considers that the domestic courts, and most recently the High Court in its judgment of 10 June 2011, balanced the right of freedom of expression with the right to respect for private life, and took into account the criteria set out in the Court ’ s case-law. The reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the authorities of the respondent State acted within their margin of appreciation in striking a fair balance between the competing interests at stake.", "80. The Court therefore concludes that there has been no violation of Article 10 of the Convention." ]

[ "5. The applicant was born in 1957 and lives in Carate Urio (Como).", "6. The facts of the case, as submitted by the parties, may be summarised as follows.", "I. THE CIRCUMSTANCES OF THE CASE", "A. Publication of the articles", "7. The applicant is a well-known Italian journalist. At the material time, specifically from January 2007 until 15 July 2008, he was the editor-in-chief of Libero, a national daily newspaper that sold around 125, 000 copies per day.", "8. On 17 February 2007 one of the main Italian newspapers, La Stampa, published an article covering the story of a thirteen-year old girl who had undergone an abortion. The article suggested that the girl had been forced to undergo the abortion by her parents and G.C., the guardianship judge ( giudice tutelare ) who had authorised the procedure. Later that day it was reported that there had been no pressure placed on the teenager, and that she had decided alone to terminate the pregnancy. This clarification was widely disseminated by different sources: in particular, the National Press Agency (ANSA) issued a number of press releases on 17 February 20 0 7 clarifying the events; the television news bulletins broadcast by Rai2 and Rai3 ( Italy ’ s public national television channels) reported that the news concerning the alleged pressure on the teenager was false; the newspapers Corriere della Sera and La Repubblica reported the facts of the case in the same vein.", "9. On 18 February 2007 two articles were published in Libero concerning the events involving the teenager. Despite the clarification disseminated the previous day by other media, both articles reported that the girl had been forced to undergo an abortion by her parents and G.C.", "10. The first article, written by an unknown person under the pseudonym “Dreyfus”, was entitled “ Judge orders abortion. The law is stronger than life” ( Il giudice ordina l ’ aborto. La legge più forte della vita ).", "11. It was worded as follows:", "“ A teenager from Turin has been forced by her parents to [ have an abortion ] ... the magistrate has heard the parties and has applied the law – the law! – ordering the compulsory abortion ... she did not want. She struggled ... [ N]ow the young mother (you are still considered as a mother even if your son died) is hospitalised as mentally ill. She had screamed in vain ‘ if you kill my son, I will commit suicide ’ ... if there were the death penalty, and if [ it were ever ] applicable, this would have been the case, [f]or the parents, the gynaecologist and [G.C.] ... the medicine and the judiciary are accomplices in the [coercive abortion] ”.", "12. The second article, written by the journalist A. M. , was entitled “Forced to abort by her parents and the judge ” ( Costretta ad abortire dai genitori e dal giudice ). The relevant parts read as follows:", "“Pregnant [girl] at the early age of thirteen undergoes abortion and is hospitalised in a psychiatric centre ... ) After the abortion [the thirteen-year old girl] accused her family of forcing her to [have an abortion] ... ”", "B. Defamation proceedings brought against the applicant", "1. First-instance proceedings", "13. On 27 April 2007 G.C. filed a criminal complaint against the applicant and A.M. with the Milan District Court. The applicant was charged with defamation, aggravated by the fact that the offence consisted of imputing a specific fact (Article 595 §§ 1 and 2 of the Criminal Code), and failure of newspaper ’ s editor-in-chief to control what had been published – omesso controllo ( Article 57 of the Criminal Code ).", "14. In a judgment of 26 January 2009, filed in the relevant registry on 20 March 2009, the District Court found the applicant guilty of omesso controllo, as far as the article drafted by A. M. was concerned, and of aggravated defamation since, as head of the newspaper, he was responsible for the article published under the pseudonym “Dreyfus”. The applicant was ordered to pay a fine of 5, 000 euros ( EUR ), damages in the sum of EUR 10. 000 and costs in the sum of EUR 2, 500 ( to be paid jointly with A.M. ), with publication of the judgment in Libero.", "15. It concluded: ( i ) that both articles contained false information, and (ii ) that the content of both articles had severely damaged the reputation of the victim, clearly overstepping the boundaries of the applicant ’ s right to freely impart information.", "2. Appeal proceedings", "16. The applicant lodged an appeal.", "17. In its judgment of 17 June 2011, filed in the relevant registry on 24 June 2011, the Milan Court of Appeal quashed the first-instance judgment in part. It pointed out that the articles at issue had reported false information, since the thirteen-year old girl had decided alone to terminate the pregnancy. Accordingly, the Court of Appeal found that the penalty imposed was too lenient, particularly in the light of the seriousness of the offence committed, and a finding that the applicant was a recidivist. The Court of Appeal thus increased the penalty to one year and two months ’ imprisonment, and upheld the fine of EUR 5, 000. The Court of Appeal did not suspend the enforcement of the penalty and decided to record the conviction on the applicant ’ s criminal record. In addition, the damages were also increased from EUR 10, 000 to EUR 30, 000.", "3. Appeal on points of law", "18. The applicant appealed on points of law.", "19. In a judgment of 26 September 2012, deposited in the relevant registry on 23 October 2012, the Court of Cassation upheld the Court of Appeal ’ s findings, assessing, inter alia, the compatibility of the conviction and the sentence imposed in the light of the case - law of the Court. In particular, the Court of Cassation sought to justify the imposition of a custodial sentence by arguing that there were exceptional circumstances in the case. In particular, the imposition of the detention measure had been justified by a set of concurrent factors, such as the existence of the aggravating circumstance of “ imputing a specific fact”; the applicant ’ s personality, his criminal record (the applicant being a recidivist) and the fact that the publication of false information had undermined the reputation of G.C., a member of the judiciary.", "20. By a decision of 30 November 2012, filed in the relevant registry on the same date, the Milan Court responsible for the execution of sentences ( Tribunale di Sorveglianza di Milano ) ordered the applicant to serve his sentence under house arrest ( pericolo di fuga ), on the grounds that there was no risk that he might abscond.", "21. On an unspecified date, relying on Article 87 § 11 of the Constitution, the applicant filed a request with the President of the Italian Republic to convert the remainder of the detention period into a fine.", "22. By a decree of 21 December 2012 the applicant ’ s request was granted and his sentence was commuted into the payment of a EUR 15 ,532 fine.", "23. In his decision to commute the applicant ’ s penalty, the President relied on the criticism expressed by the European Court of Human Rights with respect to the imposition of custodial sentences on journalists. He also expressed his concerns about the ongoing review of the legislation on defamation, which was on hold owing to difficulties in striking a balance between the need to set out more lenient sanctions while at the same time ensuring more effective redress measures.", "24. The applicant spent twenty-one days under house arrest, starting 30 November 2012 until 21 December 2012, when he was released (see paragraphs 20-22).", "III. COUNCIL OF EUROPE DOCUMENTS", "31. On 24 January 2013 the Parliamentary Assembly of the Council of Europe adopted Resolution 1920 (2013) entitled “The state of media freedom in Europe”. In this document, referring to the fourteen-month prison sentence imposed on the applicant, the Assembly asked the European Commission for Democracy through Law (hereinafter “ the Venice Commission”) to prepare an opinion on whether the Italian laws on defamation were in line with Article 10 of the Convention.", "32. On 9 November 2013 the Venice Commission, in Opinion no. 715/2013 (“Opinion on the Legislation on Defamation of Italy”) observed that a reform of the legislation on defamation was ongoing (see paragraph 30 above ) : the amendments proposed envisaged, inter alia, limitation of the use of criminal provisions, abolition of imprisonment as a possible penalty and an upper limit for fines, lacking in Article 595 § § 3 and 4 of the Criminal Code (repealed by the Bill). The Venice Commission was of the opinion that [ high fines posed “ a threat with almost as much chilling effect as imprisonment” ] but also recalled that this was to be regarded as “a remarkable improvement, in accordance with the Council of Europe calls for lighter sanctions for defamation”.", "33. The Venice Commission, however, albeit satisfied with the amendments proposed, observed that the Bill, presented in 2013, was still pending before the Senate Standing Committee on Justice." ]

[ "II. RELEVANT DOMESTIC LAW", "25. Article 87 of the Constitution sets out the powers of the President of the Italian Republic. In particular, paragraph 11 provides:", "“The President may grant pardons and commute punishments.”", "26. Article 174 of the Criminal Code provides:", "“The pardon or grace condones, in whole or in part, the penalty imposed, or commutes it into another penalty established by law. It does not extinguish the accessory penalties nor, unless the decree states otherwise, the other penal effects of the sentence”.", "27. Article 57 of the Criminal Code, entitled “ Offences committed by means of the press”, provides:", "“Without prejudice to the liability of the author of the publication and unless complicity is involved, any editor-in-chief or deputy editor who fails to exercise, vis-à-vis the content of his periodical, the control required to prevent offences being committed by means of the publication shall be punished for negligence if an offence is committed, with the penalty for this offence reduced by a maximum of one-third. ”", "28. Article 595 of the Criminal Code defines the offence of defamation. The relevant parts of that Article read as follows:", "“ (1) Anyone who ..., in communicating with more than one person, damages the reputation of another, shall be punished by one year ’ s imprisonment or by a fine of up to EUR 1,032.", "(2) Defamation which consists in imputing a specific fact shall be punishable by up to two years ’ imprisonment or by a fine of up to EUR 2,065.", "(3) Defamation which is disseminated by the press or any other form of publicity, or in a public document, shall be punishable by imprisonment of between six months and three years or by a fine of at least EUR 516.", "(4) In the event of defamation against a member of a political, administrative or judicial authority, or one of its representations ... the sentences shall be increased.”", "29. Section 13 of Law no. 47 of 8 February 1948 (hereinafter “ the Press Act ”), published in Law Gazette no. 43 of 20 February 1948, as far as relevant, reads as follows:", "“ If the offence of defamation is committed through the press and consists in attributing a specific fact, the author shall be liable to imprisonment of [between] one and ... six years and a fine ...”", "30. In their observations the Government pointed out that a defamation reform bill (Draft Bill no. 925) was currently under revision for a second reading before the Senate Standing Committee on Justice. Among other things, the draft proposes the removal of imprisonment as a sanction for defamation, and its replacement by a fine.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "34. The applicant argued that his conviction for defamation through the press ( diffamazione a mezzo stampa ) and for failure to exercise control over the content of the publication ( omesso controllo sul contenuto dell ’ articolo diffamatorio ) had breached Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "35. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a ) The applicant", "36. The applicant challenged his conviction for defamation. He submitted that he had only been convicted because of the Public Prosecutor ’ s failure to conduct an appropriate investigation in order to find the writer of the anonymous article. In the applicant ’ s view, the conviction of the editor-in-chief of a newspaper had had the negative effect of impeding the publication of news in the public interest. The applicant further submitted that “ [on] the day the article was published [ he ] was absent and didn ’ t know anything about the article contested ”.", "37. Turning to the proportionality between the offence committed and the sanction imposed, the applicant observed the following.", "38. At the outset, he submitted that the domestic courts had not adopted a homogeneous approach with respect to the type of sanction to be imposed: in particular, the first-instance court had not found the detention “necessary”, finding the imposition of a financial sanction appropriate and sufficient; secondly, the applicant argued that the lack of subjective responsibility, the offence having been committed by another person, could not justify the “ cruelty ” of the sanction.", "39. The applicant further submitted that the sanction imposed had seriously damaged his career. The proceedings instituted against him had led to him being suspended from his profession as a journalist for three months. Furthermore, he had been forced to resign from the position of editor-in-chief of another newspaper, Il Giornale, and, overall, his professional capacity had inevitably been affected.", "40. The applicant also claimed he had suffered health problems as a result of his conviction.", "41. Lastly, the applicant reiterated the reasons put forward by the President of the Italian Republic, who had taken the decision to commute his penalty into a fine (see paragraphs 21-23 above ).", "(b) The Government", "42. The Government argued that the articles at issue were clearly defamatory since, in addition to reporting false information, they had been mainly intended to “ obscure and undermine the reputation of those involved in the facts of the case”.", "43. The Government further argued that the right to freedom of expression and to impart information invoked by the applicant had violated the right to protection of one ’ s reputation in that the applicant had not only undermined G.C. ’ s reputation but first and foremost had violated the right to privacy of a thirteen-year old girl who “in a dramatic time in her adolescence had sought the [intervention of a] judge”, as well as of all those involved.", "44. Turning to the applicant ’ s liability, the Government, after pointing out that as editor-in-chief he bore full responsibility for the content of the article published under the pseudonym, reiterated the reasons put forward by the domestic courts, in particular the Court of Cassation, in imposing the custodial sentence on the applicant (see paragraph 19 above).", "45. In conclusion, the Government, relying on what the Court had previously stated in Fatullayev v. Azerbaijan, (no. 40984/07, § 95, 22 April 2010), affirmed that the applicant could not invoke the safeguards afforded by Article 10 to journalists since he had not acted in good faith and, even worse, had provided unreliable and false information. In the light of the foregoing observations, in the Government ’ s view, the imposition of detention had been proportionate.", "2. The Court ’ s assessment", "(a) Whether there has been an interference", "46. It is not in dispute between the parties that the applicant ’ s conviction constituted an interference with his right to freedom of expression under Article 10 § 1 of the Convention.", "47. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims (see Peruzzi v. Italy, no. 39294/09, § 42, 30 June 2015, and the authorities cited therein).", "(b) Whether the interference was justified: “prescribed by law” and “legitimate aim”", "48. The parties likewise agree that the interference was prescribed by law, namely by Articles 57 and 595 of the Criminal Code and section 13 of the Press Act (see paragraphs 2 6 -2 8 above).", "49. Turning to the legitimacy of the aim pursued, it is not for the Court to assess whether the applicant ’ s conviction pursued the legitimate aim of protecting the judiciary, as the Court can accept that the interference in any case pursued the legitimate aim of protecting the reputation and rights of others, namely the thirteen-year old girl and her parents as well as those of G.C. ( see Belpietro v. Italy, no. 43612/10, §§ 45, 24 September 2013 ).", "50. The parties differed as to whether the interference in question had been “necessary in a democratic society” and proportionate to the sanction imposed. The Court must therefore determine whether this requirement, as set forth in the second paragraph of Article 10, was satisfied in the instant case.", "(c) “Necessary in a democratic society”", "( i ) General principles", "51. The general principles concerning the necessity of an interference with freedom of expression are summarised in the cases of Morice v. France [GC], no. 29369/10, § § 124-139, ECHR 2015 and Belpietro ( cited above, §§ 47-54 ).", "52. In particular, the Court points out that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need”, whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the sanction imposed was “proportionate to the legitimate aim pursued” (see Belpietro, cited above, §§ 49-50).", "(ii) Application of the above principles to the present case", "53. In the instant case the national courts found that the content of the articles had led to misinformation of the public, having given false information despite the clarifications disseminated the day prior to their publication. In addition, in the courts ’ view, the applicant had seriously tarnished G.C. ’ s honour and his right to privacy, as well as that of all those involved.", "54. The Court sees no reason to depart from the above findings.", "55. In particular, it cannot consider arbitrary or manifestly erroneous the assessment carried out by the national authorities, according to which the articles published by the applicant had attributed behaviour to G.C. involving a misuse of his official powers. Moreover, the Court observes that the case involved a minor and also contained defamatory statements against the parents and the doctors.", "56. In addition, the Court agrees with the Government that the applicant failed to observe the ethics of journalism by reporting information without first checking its veracity.", "57. Furthermore, the Court points out, as it has previously held (see Belpietro, cited above, §§ 58-59), that the head of a newspaper cannot be exempted from his duty to exercise control over the articles published therein and bears responsibility for their content.", "58. In the light of the foregoing considerations, and having regard to the margin of appreciation left to the Contracting States in such matters, the Court finds that the domestic authorities were entitled to consider it necessary to restrict the exercise of the applicant ’ s right to freedom of expression and that his conviction for defamation and omesso controllo accordingly met a “pressing social need”. What remains to be determined is whether the interference at issue was proportionate to the legitimate aim pursued, in view of the sanctions imposed.", "59. Although sentencing is in principle a matter for the national courts, the Court considers the imposition of a custodial sentence for a media-related offence, albeit suspended, compatible with journalists ’ freedom of expression as guaranteed by Article 10 of the Convention can only be in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see, Cumpănă and Mazăre v. Romania, [GC], no. 33348/96, § 115, ECHR 2004-XI ). In this connection, the Court notes the recent legislative initiatives by the Italian authorities aimed, in line with the recent rulings of the Court against Italy, at limiting the use of criminal sanctions for defamation, and introducing, as a notable positive step, the removal of imprisonment as a sanction for defamation (see paragraph 29).", "60. In the present case, unlike in Belpietro and Ricci (Ricci v. Italy, no. 30210/06, §§ 59-61, 8 October 2013), the applicant, in addition to being ordered to pay compensation to the magistrate concerned, actually spent twenty-one days under house arrest before the intervention of the President of the Italian Republic (see paragraphs 21-24 above ).", "61. In this connection, it may be relevant to note that in two similar cases (see Belpietro, cited above, §§ 61-63, and Ricci, cited above, §§ 59-61 ) the imposition of a custodial sentence (although suspended) led the Court to find a violation of Article 10. In particular, in Belpietro, the applicant, the then editor-in-chief of the newspaper Il Giornale, had been accused of defamation for omitting to exercise the necessary control over an article published by another person in the newspaper. On that occasion the Court held that a prison sentence could only be justified if there were exceptional circumstances, that not being the case since it concerned a lack of control in connection with defamation.", "62. The Court considers that, in the circumstances of the instant case, there was no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect (see, mutatis mutandis, Kapsis and Danikas v. Greece, no. 52137/12, § 40, 19 January 2017). The fact that the applicant ’ s prison sentence was suspended does not alter that conclusion, considering that the individual commutation of a prison sentence into a fine is a measure subject to the discretionary power of the President of the Italian Republic. Furthermore, while such an act of clemency dispenses convicted persons from having to serve their sentence, it does not expunge their conviction ( see paragraph 26 above; see also Cumpănă and Mazăre v. Romania, cited above, § 116, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009 ).", "63. The foregoing considerations are sufficient to enable the Court to conclude that the criminal sanction imposed on the applicant was manifestly disproportionate in its nature and severity to the legitimate aim invoked.", "64. The Court concludes that the domestic courts in the instant case went beyond what would have amounted to a “necessary” restriction on the applicant ’ s freedom of expression. The interference was thus not “necessary in a democratic society”.", "65. Accordingly, there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "66. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "67. The applicant claimed EUR 100, 000 in respect of pecuniary and non-pecuniary damage.", "68. The Government disputed this claim. They reiterated that there was “ no room ” for the applicant ’ s request since he had seriously infringed the fundamental rights of a minor, her parents and G.C.", "69. The Court rejects the applicant ’ s claim for pecuniary damage as unsubstantiated since he has failed to produce any relevant information. On the other hand, having regard to the fact that the applicant must have suffered anguish and distress on account of the facts leading to the finding of a violation of Article 10 of the Convention, the Court awards him EUR 12, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "70. The applicant also claimed EUR 14,591.20 for the costs and expenses incurred before the Court.", "71. The Government did not comment on the applicant ’ s claim.", "72. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5 ,000 for the proceedings before the Court.", "C. Default interest", "73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant, Mr Emídio Arnaldo Freitas Rangel, was a Portuguese national who was born in 1947 and lived in Lisbon. He was represented before the Court by Mr R. Correia Afonso, a lawyer practising in Lisbon. By a letter of 9 September 2015, the applicant’s representative informed the Court that Mr Freitas Rangel had died on 13 August 2014 and that his daughters, Ms Ana Sofia Pereira Rangel and Ms Catarina Matias Rangel, had expressed their wish to pursue the application in his stead.", "3. The Government were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background to the case", "5. The applicant was a renowned journalist in Portugal.", "6. In February 2010 he was invited by the Socialist Party to give testimony at a hearing before the Parliamentary Commission on Ethics, Society and Culture ( Comissão Parlamentar de Ética, Sociedade e Cultura ) on the topic of freedom of expression and the media in Portugal. More than seventy personalities and entities were invited to give their views on this topic at the hearing, which was open to the public and the media. The discussion specifically concerned the following issues:", "(a) the conditions for the exercise of freedom of expression in Portugal;", "(b) the transparency of the ownership of the media and the influence of economic and political power on media outlets;", "(c) the precariousness of employment contracts in the journalism sector in Portugal and the consequent implications for the performance of that activity;", "(d) the conditions for the exercise of journalists’ right to participate in shaping the editorial stance of the media, in particular through their editorial boards; and", "(e) the influence of public entities on the media and the methods through which the media financed themselves.", "7. On 6 April 2010 the applicant gave his testimony before the Parliamentary Commission on Ethics, Society and Culture. During his presentation, he blamed certain journalists for lowering the standards of journalism in the country, and he drew attention to the fact that the political and judicial classes were utilising journalism to pursue political goals. Before answering questions from members of parliament, he stated, inter alia, as follows:", "“... It is urgent that something is done. 90% of young journalists have not read the code of ethics. No one has ever been punished for bad journalistic practice. No one has been praised for good practice. Journalism is essential to democracy. There is no democracy without quality journalism. However, the situation has got worse. This circle has recently seen the entry – and this is the trend [ modismo ] of modern times – of the professional associations of judges and public prosecutors. These are two hubs managing information relating to judicial cases [ duas centrais de gestão de informação processual ], which is achieved through close ties with journalists. They obtain documents concerning judicial cases for journalists to publish, exchange these documents at coffee shops, in the open; if they can help to breach the duty of judicial confidentiality [ segredo de justiça ], they really will share the documents. This is not going to end well, Mr President, honourable members of parliament, if we do not return to a time with rules preventing the judiciary from engaging in politics.”", "8. As he was leaving the parliamentary session, the applicant made the following statements to a journalist from the newspaper Público who had been present at the hearing:", "“Where does the material covered by judicial confidentiality come from? Can it only come from the justice system itself? ... If they were resolving issues to do with a professional association, but no, what I have seen is an extensive and broad political intervention with negative consequences ... They try to limit the decisions of the Attorney-General [ Procurador Geral da República ] and [to influence] public opinion, and they have privileged relationships with journalists to whom, from time to time, they pass on documents dealing with various topics.”", "9. On the same day that the applicant addressed the parliamentary session, the National Board of the ASJP issued a public statement, which read as follows:", "“At the hearing that took place today before the Parliamentary Commission on Ethics, Society and Culture, the journalist Emídio Rangel asserted ... that the ASJP was connected to violations of judicial confidentiality by ‘obtaining documents concerning judicial cases for journalists to publish’ and exchanging these documents ‘at coffee shops, in the open’.", "This allegation is false and defamatory, insulting ... the good name of the ASJP with its thirty-five years of dedication to strengthening the prestige and the dignity of the judiciary, as well as the honour of the more than 2,050 judges who are members of the organisation.", "The journalist Emídio Rangel did not identify a single member of the governing bodies of the ASJP who might have shared a case file, a document, information, or anything else in violation of judicial confidentiality or the rules on professional conduct and ethics by which Portuguese judges are governed, for the simple reason that it never happened ...”", "10. The applicant’s statements before Parliament and to the journalist from Público were widely covered in the media and reported on by at least ten different news organisations on 6, 7 and 9 April 2010.", "11. On 7 April 2010, in an interview with the news agency Lusa, the applicant stated:", "“I stand by everything I said. The judiciary must be prudent and exercise its functions with modesty ...”", "Criminal Proceedings against the applicantFirst-instance proceedings", "First-instance proceedings", "First-instance proceedings", "12. On 23 April 2010 and on 5 May 2010 respectively the ASJP and the SMMP lodged criminal complaints against the applicant for insulting a legal entity ( ofensa a pessoa colectiva ) on account of the statements he had made before the Parliamentary Commission on Ethics, Society and Culture.", "13. After those complaints were lodged, criminal proceedings were initiated against the applicant by the Lisbon public prosecutor’s office.", "14. On an unknown date the ASJP and the SMMP were granted leave to intervene in the proceedings as assistants to the prosecuting authority ( assistentes ). They also brought civil claims.", "15. On an unknown date the ASJP and the SMMP filed their private prosecution submissions against the applicant in relation to two counts of defamation. The Lisbon public prosecutor’s office supported their submissions.", "16. The applicant challenged the prosecution submissions by applying for the opening of a judicial investigation ( requerimento de abertura de instrução ). On an unknown date the Lisbon Criminal Investigation Court dismissed his application and sent the case for trial in the Lisbon Criminal Court.", "17. During the trial, the applicant defended the impugned statements. He claimed that he had personally witnessed a journalist, E.D., exchanging files at a café with a member of the SMMP. E.D. denied those allegations during the hearing.", "18. On 7 May 2012 the Lisbon Criminal Court convicted the applicant on two counts of insulting a legal entity, pursuant to Article 187 §§ 1 and 2 and Article 183 §§ 1 (a) and (b) and 2 of the Criminal Code (“the CC” – see paragraph 34 below). The court held that the applicant had made statements of fact which were unsubstantiated, and that there was no reason not to believe E.D.’s testimony. The applicant was convicted and ordered to pay a fine of 6,000 euros (EUR), or alternatively, sentenced to 200 days’ imprisonment. As compensation for non-pecuniary damage, he was also ordered to pay the SMMP and the ASJP EUR 50,000 each, plus interest, calculated from the date of the judgment.", "19. In its decision, the Lisbon Criminal Court took the view that for Article 183 of the CC to apply, it was sufficient for the perpetrator to have acted with general criminal intent ( dolo genérico ); thus, it would suffice for the perpetrator to realise that he had attributed false facts, or even offensive value judgments, to the legal entities in question. The court held as follows:", "“The [applicant’s] desire to directly strike at and diminish the credibility and prestige of the assistentes in front of the members of parliament sitting on the Ethics Commission and before the whole country is well known.", "The offence directed against the assistentes took place in a solemn venue – Parliament – where the [applicant] read out a text written by him, in a context where media access to the hearing ... was unrestricted, which heightened the potential for the dissemination of the words spoken by the [applicant], as well as for the perpetuation of the offence to the assistentes. The statements made by the [applicant] were knowingly designed to endure in time ... considering that the applicant is a figure of reference in journalism in Portugal, and that his opinions are widely listened to.", "The immediate reporting ... by various media entities of the statements he made to the Ethics Commission, as a result of the ‘bandwagon effect’ [ efeito propulsor ] that they instantaneously acquired, carried the ‘viral load’ of the words and allowed them to persist in time. As they still persist.", "...", "It is hard for us to accept that, in any circumstances, such statements may be considered harmless.", "It is hard for us to accept that, in any circumstances, they may be interpreted as not being offensive to, or unable to offend, the assistentes.", "And that the [applicant] did not seek to ‘back up’ [his statements] with any facts.", "He merely referred to a vague incident at a café ... involving the journalist E.D. and a judge belonging to the SMMP, whom he refused to identify.", "This is manifestly insufficient.", "...", "Freedom of expression was, in this instance, dishonoured [ desvirtuada ].”", "Appeal proceedings", "20. On an unknown date the applicant appealed against the Lisbon Criminal Court’s decision to the Lisbon Court of Appeal.", "21. On 22 November 2012 the Lisbon Court of Appeal upheld the criminal conviction of the applicant. However, it held that the applicant had committed two counts of the offence of insulting a public entity under Article 187 §§ 1 and 2 and Article 183 § 2 of the CC, excluding the application of Article 183 § 1 (a) and (b) (see paragraph 34 below). The Lisbon Court of Appeal considered that the applicant was only to be convicted under Article 183 § 2 because the offence under that Article was more severe than the one under Article 183 § 1 (a) and (b) and therefore included the offences committed under those two sub-paragraphs as well. However, this would not have any impact on the total amount of the penalty.", "22. In its judgment, the Lisbon Court of Appeal noted that it was necessary to make a proportionality assessment between the right to honour and freedom of expression, holding as follows:", "“... Given that the [Convention], like all treaty law to which Portugal is a contracting party, has infra-constitutional but supra-legal value, in determining whether certain conduct constitutes a crime against honour, account should be taken of the provisions of that Convention, as interpreted by the case-law of the [Court], specifically in respect of Article 10 (freedom of expression).", "According to the case-law of that court ‘... the exceptions to freedom of expression, notably to protect the honour of others, must be interpreted restrictively and the necessity for the restrictions must be convincingly established’. Thus, when public figures are involved, the limits of permissible criticism are wider, accepting, in the context of political and public controversies, the use of strong, exaggerated and scathing language.", "...", "In the present case, the [applicant] claimed that the members of the assistentes had shared information on topics that were protected by judicial confidentiality [ segredo de justiça ] with journalists.", "Considering that the assistentes are associations whose members are exclusively members of the State legal service who must abide by special duties in respect of their legal obligations, such an act would be extremely serious, both criminally and in terms of professional conduct; therefore, the attribution of such acts [to the assistentes ] seriously damages the right of the assistentes to a reputation.", "[The present case] is not about opinions on the existence or handling of the assistentes, but rather the false attribution of serious acts, without the [applicant] having even proven that he had any grounds, in good faith, to believe in their veracity ... for this reason the limit of freedom of expression has been surpassed and the objective elements of the offence under Article 187 of the Criminal Code are met.”", "23. As to civil liability, the Lisbon Court of Appeal lowered the amount to be paid in damages to the assistentes to EUR 10,000 each. The relevant parts of the judgment in this regard read as follows:", "“The [applicant] is an individual and the assistentes are legal entities (where the offender is a media company, the compensation must be increased, so that the revenue gained from the news which offends a person’s honour does not offset the respective consequences); on the other hand ..., the honour of legal entities stems from social dignity and not from ‘human dignity’, and, as a consequence, there is no suffering, as there is in the case of a human being, [and this] diminishes the duty to compensate.", "...", "The [applicant] has a monthly income of about EUR 5,000 ... and no facts connected to the economic circumstances of the assistentes have been established ...", "[H]owever, the [applicant] did not have any basis to consider, in good faith, that the facts he attributed to the assistentes were true, and therefore the compensation should not be reduced for the purposes of Article 494 of the Civil Code.", "...", "The statements were made before third parties (which necessarily leads to a higher award of compensation than in the case of statements made only in front of the victim), [and] read from a written text ... therefore, the words were well considered [ ponderado ] (which increases the duty to compensate), and reiterated several times ..., triggering a large amount of media attention ... which also leads to the duty to compensate ... The facts referred to [by the applicant] constitute an offence, which heightens the duty to compensate.”", "24. On 21 February 2013 the applicant filed a plea of nullity in respect of the judgment of the Court of Appeal, but his plea was dismissed.", "25. As far as the criminal conviction of the applicant was concerned, the judgment of the Lisbon Court of Appeal was not amenable to further appeal pursuant to Article 400 § 1 (e) of the Code of Criminal Procedure (see paragraph 35 below).", "Proceedings before the Supreme Court", "26. On an unknown date the ASJP and the SMMP lodged an application with the Supreme Court for judicial review, arguing that the amount that the applicant had been ordered to pay them in damages was too low.", "27. On 5 June 2013 the Supreme Court held partly in their favour, increasing to EUR 25,000 the amount of compensation for non-pecuniary damage to be paid by the applicant to each of the ASJP and the SMMP.", "28. The relevant part of the Supreme Court’s judgment reads as follows:", "“The right to a good name and reputation is a fundamental right based on Article 26 § 1 of the Constitution .... With regard to legal entities, the right to a good name is specifically enshrined, from a civil point of view, in Article 484 of the Civil Code, and, at the same time, the violation of this legal interest [ bem juridico ] is also an offence under the Criminal Code ...", "... with regard to legal entities, the insult to their credibility and good name may entail serious damage that affects not only the self-image and the prestige that they enjoy, but also the trust that the public may place in them ...", "In the [present] case, it is undeniable that the insults to the good name (credibility, prestige and trust) of the claimants were severe, both because of the extent of their unlawfulness (the seriousness of the insults, the knowledge of their falsehood, the form in which they were produced, the outlet that they had), and because of the established guilt, with a particularly severe level of intent ...", "Now, the facts are particularly serious owing to the offensive nature of the statements and the coverage that they had; with regard to negligence [ culpa ], as we have already seen, the [applicant] acted with gross negligence [ culpa grave ] – the most serious form of negligence, and the level of unlawfulness is also high within this type of offence.", "Both the Professional Association of Judges and the Professional Association of Public Prosecutors demonstrated, through their executive bodies, that they were profoundly affected by the statements made, especially considering that these associations are representatives of prosecutors and judges in their socio-professional field, striving for the protection of the values connected to professional and ethical conduct, such as independence, immunity and objectivity, which are characteristics of the exercise of their respective roles that are enshrined in the Constitution and in their statutes. The allegations made by the applicant imply a total disrespect for the principles by which judges and prosecutors ... must be governed ...", "... This was combined with the aggravating fact that the [applicant] acted freely, voluntarily and consciously and with the intention of offending the legal entities in question ... while knowing the falsehood of his statements ...", "... The determination of compensation, in contrast to what the [applicant] suggests, must have, in the present case, the nature of a sanction, with a preventive purpose ...", "The value of the compensation for non-pecuniary damage and as a civil sanction is established on the basis of the degree of fault [ culpabilidade ], the unlawfulness [of the act], the economic situation of both the perpetrator [ lesante ] and the victim, and the overall circumstances of the case.", "Considering that the negligence [ culpa ] in this case fell into the most serious category ... in the form of intent [ dolo ], and was especially severe within that category, on account of its high degree of unlawfulness; considering the damaging consequences, the [applicant’s] manner of operating and the universe of people making up the collective entities; and bearing in mind the economic situation of the claimants and the [applicant], the amount of EUR 10,000 determined by the Court of Appeal is too low.”", "Enforcement proceedings", "29. On 5 December 2014 the Lisbon Criminal Court declared the sentence completed after the applicant had finished paying the fine of EUR 6,000.", "30. The ASJP initiated enforcement proceedings against the applicant in respect of the sum of EUR 25,000 in compensation which he had been ordered to pay. This amount was seized from the applicant and transferred to the ASJP. On 18 November 2014 the enforcement proceedings instituted by the ASJP were terminated.", "31. On an unknown date, the applicant agreed to the payment of the sum of EUR 25,000 to the SMMP in instalments. On 1 July 2014 he paid the first instalment in the amount of EUR 500.", "32. The applicant died on 13 August 2014 (see paragraph 2 above). On 3 September 2015 the debt which remained to be paid to the SMMP was transferred to the applicant’s estate within the inventory proceedings, which, as of 30 July 2018, the date of the latest information available to the Court, were still pending before a notary." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "The Civil Code", "33. The relevant provisions of the Civil Code read as follows:", "Article 70", "“The law shall protect individuals against any unlawful interference or threat of harm to their person or character.”", "Article 484", "“Anyone who states or spreads [knowledge of] a fact that is capable of harming the reputation of another natural or legal person shall be liable to pay damages.”", "Article 494", "“When liability results from negligence, the compensation may be set at a lower value than that which corresponds to the damage caused, as long as the degree of fault [ grau de culpabilidade ] of the perpetrator, the economic situation of the victim and the remaining circumstances justify this.”", "The Criminal Code", "34. The relevant provisions of the CC read as follows:", "Article 11 § 1", "Liability of individual people and legal entities", "“Except as provided in the following paragraph and in cases specifically provided for by law, only individuals may incur criminal responsibility.”", "Article 180", "Defamation", "“1. Anyone who, when addressing a third party, accuses another, even if the accusation takes the form of a suspicion, or makes a statement that casts aspersions on the honour of another, even when repeating an accusation or statement, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines.", "...”", "Article 183", "Public disclosure and slander", "“1. If in the case of the offences provided for in Articles 180, 181 and 182:", "(a) the offence is committed by means or in circumstances that facilitate its disclosure; or", "(b) in the case of imputation of facts, if it is ascertained that the offender knew that the imputation was false, the minimum and maximum penalties for defamation or insult shall be increased by one-third.", "2. If the offence is committed through the media, the offender shall be punished with a prison sentence of up to two years or not less than 120 day-fines.”", "Article 187", "Insulting a public body or service or a legal entity", "“1. Anyone who, without having grounds to do so in good faith, regards as truthful, affirms or propagates false facts capable of offending the reputation, prestige or trust that are owed to a body or a service that exercises public authority, a legal entity, an institution or a corporation, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines.", "2. The following shall consequently apply:", "(a) Article 183;", "...”", "Article 371 § 1", "Violation of judicial confidentiality", "“Anyone who, regardless of having had direct contact with the proceedings, unlawfully shares, in its entirety or in part, the contents of an act relating to criminal proceedings which is protected by judicial confidentiality, or which is not open to the general public, shall be punishable by a prison sentence of up to two years or by the payment of up to 240 day-fines ...”", "The code of criminal procedure", "35. At the material time, the relevant provisions of the Code of Criminal Procedure read as follows:", "Article 400 § 1 (e)", "Decisions that are not amenable to appeal", "“1. The following decisions are not amenable to appeal:", "...", "(e) Judgments given on appeal by courts of appeal which impose a penalty not entailing deprivation of liberty [ pena não privativa de liberdade ].", "...”", "Other relevant material", "36. The relevant provisions of the statutes of the ASJP and the SMMP read as follows:", "Section 3 of the ASJP statutes", "(Objects)", "“1. The ASJP shall have as its objects: ... (d) making proposals to the competent authorities on reforms to improve the judicial system and asking to be consulted on all reforms in such matters; ...(g) communicating the views of judges externally on all aspects relevant to the defence of the image, prestige and dignity of the judiciary; ...”", "Section 6 of the SMMP statutes", "(Objectives)", "“The professional association shall pursue the following objectives:", "...", "2. to defend the interests of public prosecutors, specifically with regard to their socio-professional status;", "3. to fight for the dignity of the public prosecutor’s office and for the improvement and democratisation of the judicial system;", "...", "6. to be consulted on the drafting of laws within the judicial system and to make proposals to the competent authorities on the necessary reforms for the improvement of the judicial system and the delivery of justice.”", "Domestic practice", "37. Domestic case-law has clarified that Article 187 of the CC (see paragraph 34 above) is only applicable to the dissemination of false facts and not to value judgments (see the domestic judgments cited in Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 22, 22 January 2015).", "THE LAW", "Locus standi", "38. The Court notes that Ms Ana Sofia Pereira Rangel and Ms Catarina Matias Rangel expressed the intention to pursue the application on behalf of the applicant, who had died in the course of the proceedings (see paragraph 2 above). The Government did not comment on this matter. Having regard to the close family ties and the heirs’ legitimate interest in pursuing the application, the Court accepts that the deceased applicant’s heirs may pursue the application in his stead (see, amongst many other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII, and Pais Pires de Lima v. Portugal, no. 70465/12, § 39, 12 February 2019). It will therefore continue to deal with the application at the heirs’ request. However, for practical reasons, Mr Freitas Rangel will continue to be referred as “the applicant” in this judgment (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999 ‑ V).", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "39. The applicant complained that his conviction and punishment were in breach of his right to freedom of expression as provided for in Article 10 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "40. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "41. The applicant asserted that his statements had been of public interest. He argued that he had expressed value judgments and generic statements, but had not mentioned any specific names. Furthermore, a violation of judicial confidentiality under Article 11 § 1 of the CC (see paragraph 34 above) could only be committed by private individuals and not by legal entities.", "42. He further submitted that his statements ought to be interpreted in the light of the cultural, social and historic context, and within the scope of the debate in Parliament (see paragraphs 6 and 7 above). Furthermore, he emphasised the extensively political role that both the ASJP and the SMMP held in Portuguese society.", "43. Lastly, the applicant alleged that the penalty to which he had been sentenced and the amount he had been ordered to pay in damages (see paragraphs 18, 21 and 27 above) was excessively high, having an undue chilling effect on freedom of expression.", "(b) The Government", "44. The Government argued that the applicant had known that the impugned statements were false. The interference with the applicant’s right to freedom of expression was enshrined in the law and had pursued the legitimate aim of protecting the right to honour and reputation of others. They contended that the applicant had made very offensive statements against the two associations concerned in a location which was of particular relevance to them, considering that they were often called on to express their views before Parliament on legal proposals, specifically on matters connected to the functioning of the justice system. In view of the seriousness of the accusations, the applicant had had the duty to support his allegations with evidence, which he had failed to do. Referring to the Court’s judgment in Morice v. France (no. 29369/10, § 128, ECHR 2015), the Government contended that the applicant’s conviction had been necessary in a democratic society to maintain the authority of the judiciary.", "45. As regards the amounts of compensation in respect of non-pecuniary damage which the applicant had been ordered to pay, the Government submitted that they were proportionate to the damage caused.", "The Court’s assessment", "(a) Existence of an interference", "46. The Court notes at the outset that the parties did not dispute that the applicant’s conviction on two counts of insulting a legal entity following his speech before Parliament had amounted to an “interference”, within the meaning of Article 10 § 2 of the Convention, with the exercise of his right to freedom of expression (see paragraphs 41 and 44 above). The Court sees no reason to hold otherwise.", "(b) Whether the interference was prescribed by law and pursued a legitimate aim", "47. The Court notes that the criminal conviction of the applicant was based on Article 187 §§ 1 and 2 (a) and Article 183 § 2 of the CC (see paragraphs 18, 21, 34 and 37 above) and that his civil liability was based on Article 484 of the Civil Code (see paragraph 33 above). It therefore concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "48. The Government argued that the interference in question had pursued the legitimate aim of “the protection of the reputation or rights of others” (see paragraph 44 above). The Court points out in this connection that the issue of whether a legal entity can enjoy the right to reputation (including the scope of such right) is debatable. However, in this case, it is prepared to assume that this aim can be relied on (see, mutatis mutandis, Margulev v. Russia, no. 15449/09, § 45, 8 October 2019, and the references therein). It notes that the Supreme Court found that the allegations made by the applicant had also affected the judicial ethics by which judges and prosecutors were bound (see paragraph 28 above). The Court accepts that the interference also served the legitimate aim of protecting public confidence in the judiciary and thus maintaining the authority of the judiciary within the meaning of Article 10 § 2 of the Convention. However, it remains to be established whether the interference complained of was “necessary in a democratic society”.", "(c) Whether the interference was necessary in a democratic society", "(i) General principles", "49. The Court refers to the general principles for assessing the necessity of an interference with the exercise of freedom of expression as set out in Morice (cited above, § 124); Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016); and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ([GC], no. 17224/11, § 75, 27 June 2017).", "50. Under Article 10 § 2 of the Convention, there is little scope for restrictions on political speech or on debate on matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, in particular for remarks on the functioning of the judiciary (see Baka v. Hungary [GC], no. 20261/12, § 159, 23 June 2016, with further references).", "51. A distinction must be made between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive. In order to distinguish between a factual allegation and a value judgment, it is necessary to take account of the circumstances of the case and the general tone of the remarks, bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Morice, cited above, § 126, with further references, and Miljević v. Croatia, no. 68317/13, § 56, 25 June 2020).", "52. Furthermore, the Court has found that the most careful scrutiny on its part is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III).", "53. The Court also notes that the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals (compare Uj v. Hungary, no. 23954/10, § 22, 19 July 2011, and Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). The Court has previously emphasised that there is a difference between the reputation of a legal entity and the reputation of an individual as a member of society. Whereas the latter may have repercussions on the individual’s dignity, the former is devoid of that moral dimension. This difference is even more salient when it is a public authority that invokes its right to a reputation (see Margulev, cited above, § 45).", "(ii) Application of the above principles to the present case", "54. Turning to the circumstances of the present case, the Court notes at the outset that the applicant, who is a well-known journalist (see paragraph 5 above) and had been invited by a political party to speak before the Parliamentary Commission on Ethics, Society and Culture (see paragraph 6 above), made the impugned statements while giving his opinion on freedom of expression and the media and how these were influenced by the political and economic classes. During his speech, he alleged that the ASJP and the SMMP, both of which played a role in policy-making decisions concerning judicial matters (see paragraphs 36 and 44 above), had shared confidential information with journalists to advance their political objectives (see paragraph 7 above). The Court finds that those issues were a matter of general interest to the community and that discussing them before Parliament formed part of a political debate, a field where a high level of protection of freedom of expression will normally be accorded, with the authorities thus having a narrow margin of appreciation (see the case-law cited in paragraph 50 above).", "55. The Court further observes that the parliamentary session was open to the public and that journalists were present when the applicant spoke (see paragraph 6 above). It therefore finds it unsurprising that the impugned statements were widely disseminated in the media in the days following his speech (see paragraph 10 above). In addition, the applicant was interviewed immediately after the parliamentary session by a journalist from the newspaper Público who was present during his speech before Parliament (see paragraph 8 above). The applicant also gave a follow-up interview in which he reiterated his position, arguing that the ASJP and the SMMP should act with prudence and modesty (see paragraph 11 above).", "56. With regard to the ASJP and the SMMP, the Court observes that they are reputable and well-known professional associations which are frequently invited to present their views before Parliament on legal proposals in matters connected to the functioning of justice (see paragraphs 36 and 44 above).", "57. The domestic courts, in the criminal proceedings brought by the ASJP and the SMMP against the applicant (see paragraphs 12 and 15 above), assumed that the applicant had made only statements of fact which he knew were false and defamatory towards those associations (see paragraphs 23 and 28 above). The Court, for its part, notes that most of the applicant’s statements consisted of his personal opinions, the truthfulness of which is not susceptible of proof (see the case-law quoted in paragraph 51 above). The only statement of fact at issue is the applicant’s claim concerning the sharing, by the ASJP and the SMMP, of confidential information with journalists. During his trial, the applicant defended that statement, claiming that he had personally witnessed the exchange of a case file between a journalist and a member of the SMMP (see paragraph 17 above). The Court finds that the statements made by the applicant must be understood within the specific context in which they were made. Even if the journalist in issue had denied the applicant’s allegations about the exchange of the case file, thus leaving those allegations unsubstantiated, the applicant’s statement of fact can be considered to have gone beyond this specific allegation and to speak in a more general way about the information sharing by the two organisations. While this may be seen as an exaggerated and thus unfortunate formulation, the applicant’s comments may well be interpreted as an illustration of a broader societal critique regarding the inappropriate intervention of the judiciary as a whole in politics and the media, which was a subject of public interest and which he believed to be true (see paragraphs 7, 8 and 11 above).", "58. The Court reiterates that the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals (see paragraphs 48 and 53 above). Furthermore, in the present case, it is imperative to take into account the context in which the applicant made his remarks, namely before a parliamentary commission dealing with the precise issue of freedom of expression and how the political and economic classes influenced the media and freedom of expression in the country (see paragraphs 5, 6 and 7 above).", "59. The Court emphasizes that, according to its case-law, political speech is afforded special protection (see paragraph 50 above). Despite the fact that the applicant was not an elected representative, as an invited expert presenting his views before a parliamentary commission, he should have been afforded an elevated level of protection, as is the case for parliamentary and political speech (see, mutatis mutandis, Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 242-45, 22 December 2020, and the sources cited therein, and compare Mladina d.d. Ljubljana v. Slovenia, no. 20981/10, § 43, 17 April 2014).", "60. Furthermore, the Court notes that, although the Lisbon Court of Appeal referred to the right to freedom of expression and the need for a proportionality assessment in passing (see paragraph 22 above), it based its decision solely on the right to the good name and reputation of the ASJP and the SMMP, without duly taking into account or examining in detail the criteria mentioned in paragraphs 50-53 above.", "61. Lastly, turning to the nature and severity of the sanctions imposed (see Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-115, 10 June 2003), the Court observes not only that a fine of EUR 6,000 was imposed on the applicant as a criminal sanction, but also that he was ordered to pay EUR 25,000 to each of the associations in respect of non-pecuniary damage (see paragraphs 18, 21 and 27 above). Besides the deterrent effect of the criminal fine imposed, which was not modest (contrast Stoll v. Switzerland [GC], no. 69698/01, § 160, ECHR 2007-V), in the Court’s view the amounts in question were disproportionate to any potential damage caused to the reputation of the associations, which, as noted by both the applicant and the Government, are renowned entities often involved in legal decision-making (see paragraphs 42 and 44 above). The Court also considers that sanctions of this severity may have a chilling effect on the exercise of freedom of expression of persons called upon to participate in discussions of matters of general public interest and concerning institutions (compare Público - Comunicação Social, S.A. and Others v. Portugal, no. 39324/07, § 55, 7 December 2010; Bozhkov v. Bulgaria, no. 3316/04, § 55, 19 April 2011; Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 46, 22 January 2015; Medipress-Sociedade Jornalística, Lda v. Portugal, no. 55442/12, § 45, 30 August 2016; and Pais Pires de Lima, cited above, §§ 66-67).", "Conclusion", "62. The above elements lead the Court to conclude that the domestic courts failed to provide relevant and sufficient reasons to justify the interference with the applicant’s right to freedom of expression. The Court further considers that the domestic courts have exceeded the margin of appreciation afforded to them regarding limitations on debates of public interest and that there is no reasonable relationship of proportionality between, on the one hand, the restriction on the applicant’s right to freedom of expression and, on the other, the legitimate aim pursued. The Court concludes that the interference with the applicant’s right to freedom of expression was not necessary in a democratic society.", "63. Accordingly, there has been a violation of Article 10 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "64. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "65. The applicant claimed 56,000 euros (EUR) in respect of pecuniary damage, corresponding to the fine of EUR 6,000 inflicted to him and the sum of EUR 50,000 in damages he had been ordered to pay to the ASJP and the SMMP. He did not claim any amount in respect of non-pecuniary damage.", "66. The Government noted that the applicant had not paid the full amount of the compensation owed to the ASJP and the SMMP, but had only paid EUR 31,500.", "67. The Court considers that an applicant is, in principle, entitled to recover any sums that he or she has paid in fines and costs, by reason of their direct link with the national court judgments which the Court found to be in breach of his or her right to freedom of expression (see Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 86, 17 January 2017). In the present case, in view of the documents submitted, the Court notes that the applicant paid the fine of EUR 6,000 which he was ordered to pay, as well as the sums of EUR 25,000 to the ASJP and EUR 500 to the SMMP, totalling EUR 31,500. The Court further observes that, following the death of the applicant, the debt which remained to be paid to the SMMP was inherited by his heirs. Although it appears that they are liable for it (see paragraphs 29-32 above), they have provided no evidence that they paid it. There is therefore no reason to award anything in respect of the remaining debt. In view of the documents submitted, the Court awards the applicant EUR 31,500.", "68. As the applicant made no claim in respect of non-pecuniary damage, the Court is not called upon to make any award under that head.", "Costs and expenses", "69. The applicant claimed EUR 14,320 in respect of legal fees and EUR 1,419.82 in respect of other costs and expenses related to the proceedings before the domestic courts. He also claimed EUR 2,783.85 in respect of legal fees and EUR 1,350.56 in respect of other costs and expenses related to the proceedings before the Court.", "70. The Government contested the amounts claimed in respect of legal fees, finding them excessive", "71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards EUR 19,874.23 covering costs under all heads, plus any tax that may be chargeable to the applicant’s heirs.", "Default interest", "72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant, who was born in 1960 and lives in Paris, is a lawyer ( avocat ) and member of the Paris Bar.", "A. Death of Judge Borrel and subsequent proceedings", "10. On 19 October 1995 Mr Bernard Borrel, a judge who had been seconded by France for the year before as a technical adviser to the Djiboutian Minister of Justice, in the context of cooperation agreements between the two States, was found dead 80 kilometres from the city of Djibouti. His half-naked and partially burnt body was lying some 20 metres below a remote road. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide by self-immolation.", "11. On 7 December 1995 a judicial investigation was opened at the Toulouse tribunal de grande instance to determine the cause of death. Bernard Borrel’s body, which was repatriated and interred in Toulouse, underwent an autopsy on 15 February 1996. The report concluded that the death was not suspicious, although the body’s state of decomposition did not permit a precise cause to be established.", "12. On 3 March 1997 Mrs Elisabeth Borrel, the widow of Bernard Borrel and also a judge, disputing the finding of suicide, filed a complaint as a civil party, in her own name and on behalf of her two minor children, against a person or persons unknown for premeditated murder. She appointed the applicant, Mr Morice, to represent her in the proceedings.", "13. On 8 and 23 April 1997 two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown.", "14. In a decision of 30 April 1997, the judicial investigation into the cause of death and the two investigations in respect of premeditated murder were joined.", "15. On 29 October 1997 the Court of Cassation accepted a request by the applicant to withdraw the case from the Toulouse court and it was transferred to the tribunal de grande instance of Paris, where it was assigned on 12 October 1997 to Ms M., assisted from 7 January 1998 by Mr L.L., both investigating judges, who were to conduct the judicial investigation jointly.", "16. On 19 November 1999 a lawyer at the Brussels Bar informed the police that A., a former senior officer and member of the Djiboutian Presidential Guard, who had found asylum in Belgium, had certain revelations to make concerning Judge Borrel. The information thus disclosed was transmitted to the French authorities via Interpol. A judgment of the Versailles Court of Appeal of 28 May 2009 (see paragraph 18 below) records the following sequence of events: Judges M. and L.L. did not reply, owing to the fact that the witness wished to remain anonymous, and the information was not followed up; the witness’s Belgian lawyer thus contacted the applicant, who arranged for the witness to be interviewed by journalists from the daily newspaper Le Figaro and the French TV channel TF1, at the end of December 1999; lastly, it was as a result of the publication and broadcasting of that interview in early January 2000 that Judges M. and L.L. decided to go to Belgium to assist the Belgian investigator in taking evidence from the witness.", "17. On 31 January 2000 Judges M. and L.L. interviewed the witness in Brussels. It was subsequently alleged by A. that he had been pressurised and intimidated by Judge M. to withdraw his testimony, those complaints being expressly made in a letter of 2 February 2000 from his lawyer to the Crown Prosecutor. In addition, the witness accused the public prosecutor of Djibouti of having threatened him to make him recant his statement, and alleged that the head of the Djibouti secret services had ordered the head of the Presidential Guard, Captain I., to draft a statement discrediting him. Captain I. confirmed A’s accusations concerning him.", "18. Proceedings were brought in France against the public prosecutor of Djibouti and the head of the country’s secret services for the procuring of false evidence, and Judge Borrel’s widow and son, the witness A., Captain I., and a French lawyer, A.M., who was implicated, intervened as civil parties. Evidence was taken from Judge M. in her capacity as witness. The public prosecutor and the head of the secret services of Djibouti were sentenced, respectively, to eighteen and twelve months’ imprisonment, and ordered to pay damages to the civil parties, in a judgment of the Versailles Criminal Court of 27 March 2008, before being acquitted by the Versailles Court of Appeal on 28 May 2009.", "19. On 2 February 2000, in the context of the judicial investigation in respect of premeditated murder, three professional unions of judges and prosecutors, namely the Syndicat de la magistrature, the Association professionnelle des magistrats and the Union syndicale des magistrats, applied to be joined to the proceedings as civil parties.", "20. On 16 March 2000 the applicant, acting on behalf of Mrs Borrel, requested, firstly, that evidence be taken from the witness, A., in Belgium, and, secondly, that a visit to the scene of the crime in Djibouti, in the presence of the civil parties, be organised.", "21. In a decision of 17 March 2000, the investigating judges M. and L.L. accepted the request concerning A., finding that a new interview was absolutely necessary. They refused, however, to agree to a site visit, as such a visit had already been made twice, once in 1999 and again one week before the decision in question, as they did not see “how a visit to the site in the presence of the civil party would, at th[at] stage of the proceedings, be helpful for the discovery of the truth”. They added that during their visit to Djibouti a few days before, they had been accompanied by two experts, including the director of the Paris Institute of Forensic Medicine, adding that the scene had been filmed and photographed on that occasion.", "22. The applicant and another lawyer appealed against that decision. They filed their pleadings with the Indictments Division, as did the lawyer acting for the Syndicat de la magistrature, arguing that the last site visit in the presence of an expert could be regarded as a reconstruction from which the civil parties had been excluded, and that the sole aim of the investigation was to demonstrate that the victim had committed suicide. They also requested that the Indictments Division take over the case from the investigating judges and continue the investigation itself.", "23. In a judgment of 21 June 2000, the Indictments Division of the Paris Court of Appeal found that after two site visits in the absence of the civil parties, one of which closely resembled a reconstruction, the need to organise an on-site reconstruction in the presence of the civil parties so that they could exercise their rights was indispensable for the discovery of the truth. Accordingly, it set aside the decision of Judges M. and L.L. on that point. In addition, it withdrew the case from them and appointed a new investigating judge, Judge P., to continue the investigation.", "24. On 19 June 2007 the Paris public prosecutor, further to the request of the investigating judge then handling the case, on the basis of Article 11, paragraph 3, of the Code of Criminal Procedure, issued a statement to clarify publicly that “whilst suicide had once been the preferred theory, the evidence gathered, especially since 2002, now point[ed] to a criminal act”, adding that the experts’ reports had determined that “Bernard Borrel was lying on the ground when liquids were poured over him in a random manner”.", "25. The proceedings are currently still pending.", "B. Facts related to the “Scientology” case", "26. The Minister of Justice, by acts of 29 June and 16 October 2000, referred to the National Legal Service Commission ( Conseil supérieur de la magistrature – “the CSM”), in its capacity as a disciplinary board for judges, certain shortcomings attributable to Judge M. in the judicial investigation into the “Scientology” case for which she was responsible and in which the applicant also represented the civil parties. Judge M. was criticised for not devoting the necessary care and attention to the case file, leaving it practically untouched for five years; for having recourse to a friendly-settlement procedure which went beyond the jurisdiction of an investigating judge; and for not making copies of all the documents in the case file, thus making it impossible to reconstruct the file after its partial disappearance from her chambers. Judge M. requested that the referral to the CSM be declared null and void, particularly on account of the fact that it had been made public by the director of the Minister’s private office at a press conference, even before she had been personally notified of the decision. In parallel, on 18 October 2000, the Indictments Division of the Paris Court of Appeal upheld a request by the applicant for the withdrawal of the “Scientology” case from Judge M.", "27. On 4 July 2000, at a general meeting of judges of the Paris tribunal de grande instance, the issue of the disciplinary proceedings against Judge M. was raised, in particular because they had been announced in the press whereas the judge concerned had not been officially informed and the president of that court had not yet been notified. During that meeting a judge, J.M., stated as follows:", "“We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust.”", "28. The general meeting drafted the following motion, which was adopted unanimously:", "“The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.”", "29. In the context of a magazine interview published in July-August 2000, the chair of the Syndicat de la magistrature, a civil party in the Borrel case, criticised the “lack of impartiality on the part of Judge M. in the Borrel and [L.] cases”, adding that the judges who had signed the motion “could not have been unaware that in two sensitive cases, the Borrel case and the [L.] case, her impartiality was seriously called into question”.", "30. In a judgment of 5 January 2000, the Paris tribunal de grande instance, in a case brought by the applicant as counsel acting for two civil parties, found the State liable for gross negligence on the part of the courts service on account of the disappearance of the so-called “Scientology” file from the office of Judge M. It awarded damages to the complainants.", "31. On 13 December 2001 the CSM dismissed a plea of nullity from Judge M. and, on the merits, while reproaching her for a certain lack of rigour or a failure to keep track of the case sufficiently, did not impose any disciplinary penalty on her.", "C. Criminal proceedings against the applicant", "32. On 1 August 2000 Judge P., who had been appointed to replace Judges M. and L.L., drafted a report in which he noted the following chain of events. In response to the applicant’s request concerning the video ‑ recording made in Djibouti in March 2000 and cited by Judges M. and L.L. in their decision of 17 March 2000, Judge P. replied that it was not in the judicial investigation file and was not registered as an exhibit; on the same day, Judge P. asked Judge M. whether she still had the video-cassette; Judge M. promptly gave him a closed and undated envelope with her name on, showing no sign of having been placed under seal, bearing the address of Judge M. as addressee and that of the public prosecutor of Djibouti as sender; the envelope contained a video-cassette and a handwritten card with the letter head of the public prosecutor of Djibouti, these items then being taken by Judge P. and placed under seal. The public prosecutor’s card addressed to Judge M. read as follows (translated from French).", "“Hi Marie-Paule,", "As agreed, I am sending you the video-cassette of the Goubet site visit. I hope the picture will be clear enough.", "I watched the show Sans aucun doute [Without any doubt] on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation.", "I’ll call you soon.", "Say hello to Roger if he’s back, and also to J.C. [D.].", "Speak to you soon.", "Best wishes,", "DJAMA.”", "33. On 6 September 2000 the applicant and another lawyer, Mr L. de Caunes, wrote a letter to the Minister of Justice to complain of the facts recorded in the report of the investigating judge P. dated 1 August 2000, on account of the “conduct of Judges [M.] and [L.L.], [which was] completely at odds with the principles of impartiality and fairness”. They asked for an “investigation to be carried out by the General Inspectorate of Judicial Services into the numerous shortcomings which [had] been brought to light in the course of the judicial investigation”. They stated that the form and substance of the card addressed by the public prosecutor of Djibouti to Judge M. revealed a complicit intimacy that was surprising and regrettable, as the public prosecutor was directly subordinate to the executive, of which the head was “suspected very openly and very seriously of being the instigator of Bernard Borrel’s murder”.", "34. Furthermore, extracts from that letter were included, together with statements made by the applicant to the journalist, in an article in the newspaper Le Monde published on 7 September and dated Friday 8 September 2000. The article read as follows.", "“THE LAWYERS acting for the widow of Judge Bernard Borrel, who was found dead in Djibouti in 1995 in mysterious circumstances, vigorously criticised Judge [M.], from whom the case was withdrawn last spring, in a letter to the Minister of Justice on Wednesday 6 September. The judge is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.", "The two lawyers, who had not been authorised to go to Djibouti in March for a second site visit, asked on 1 August to consult the video-recording made on that occasion. Judge [P.], who has been handling the case since its withdrawal from [Judges M. and L.L.] on 21 June, told them that the cassette was not in the case file and was not ‘registered in the file as an exhibit’. The judge immediately called his colleague, who gave him the cassette later that day. ‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.", "To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note from Djama [S.], the public prosecutor of Djibouti. ‘Hi Marie-Paule, as agreed I am sending you the video-cassette of the Goubet site visit’ the note reads. ‘I hope the picture will be clear enough. I watched the show Sans aucun doute (Without any doubt) on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger [L.L.] if he’s back, and also to J.-C. [D.] [deputy public prosecutor in Paris]. Speak to you soon. Best wishes, Djama.’", "Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’. They have asked Elisabeth Guigou for an investigation by the General Inspectorate of Judicial Services. The Minister of Justice had not received their letter on Thursday 7 September. Judge [M.] already has disciplinary proceedings pending against her before the National Legal Service Commission (CSM), in particular for the disappearance of documents from the investigation file in the Scientology case (see Le Monde of 3 July).”", "35. Judges M. and L.L. filed a criminal complaint as civil parties against a person or persons unknown for false accusations. On 26 September 2000 the Paris public prosecutor’s office opened a judicial investigation for false accusations. On 5 November 2000 the Court of Cassation appointed an investigating judge in Lille, who, on 15 May 2006, made a discontinuance order, which was upheld by the Investigation Division of the Douai Court of Appeal on 19 June 2007.", "36. In addition, on 12 and 15 October 2000 Judges M. and L.L. filed a criminal complaint as civil parties against the publication director of Le Monde, the journalist who had written the article and the applicant, accusing them of public defamation of a civil servant.", "37. In an order of 2 October 2001, an investigating judge at the Nanterre tribunal de grande instance committed the applicant and the two other defendants to stand trial before the Criminal Court on account of the following passages from the impugned article.", "“The judge [M.] is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.”", "“‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.”", "“To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note.”", "“Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’.”", "38. In a judgment of 4 June 2002, the Nanterre Criminal Court dismissed the pleas of nullity which had been raised by the defendants, in particular on the basis of the immunity provided for by section 41 of the Freedom of the Press Act of 29 July 1881 on judicial proceedings and pleadings filed in court, on account of the fact that the article had merely reiterated the content of the letter to the Minister of Justice. The court took the view, on that point, that the letter in question was not an act of referral to the CSM and that its content had to be regarded as purely informative, with the result that it was not covered by immunity.", "39. The court then observed that the defamatory nature of the comments had not been “meaningfully disputed” and that the applicant stood by the content of his allegations, which he considered to be well founded. Turning then to each of the impugned comments, to ascertain whether the charge of defamation was made out, and to assess the significance and seriousness thereof, the court first noted that “the accusation of impartiality [ sic ] and unfairness proffered against a judge clearly constitute[d] a particularly defamatory allegation, because it [was] tantamount to calling into question her qualities, her moral and professional rigour, and ultimately her capacity to discharge her duties as a judge”. It further took the view that the comments on the failure to forward the video-cassette were also defamatory as they suggested that there had at least been some negligence or a form of obstruction. As to the term “connivance”, the court found that the use of that word clearly and directly suggested that the judges had been collaborating with an official of a foreign country to act in a biased and unfair manner, this being exacerbated by the implication in the article that there was serious evidence of such conduct, because the Minister of Justice had been requested to initiate an investigation.", "40. As to the applicant’s guilt, the court found that it was, in any event, established that the journalist had become privy to the letter sent to the Minister of Justice through his own sources and that he had sought confirmation and comments from the applicant, with whom he had had a telephone conversation. As the applicant had been aware that his statements to the journalist would be made public, the court took the view that he was therefore guilty of complicity in public defamation, unless the court were to accept his offer to prove the veracity of the allegations or his defence of good faith. However, the court dismissed the applicant’s various offers to bring evidence, pointing out that in order to be accepted “the evidence to be adduced must be flawless and complete and relate directly to all the allegations found to be defamatory”. As to the applicant’s good faith, it found that “the highly virulent attacks on the professional and moral integrity of the investigating judges ... clearly overstepped the right of legitimately permissible free criticism” and that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their remarks.", "41. As regards the sanction, the court expressly took into account the applicant’s status as a lawyer and the fact that he could therefore not have been “unaware of the significance and seriousness of totally imprudent comments”, finding it appropriate that “the sanction for such criminal misconduct had to be a fine of a sufficiently high amount”. It sentenced him to a fine of 4,000 euros (EUR), and ordered him to pay, jointly with the other defendants, EUR 7,500 in damages to each of the two judges in question, together with EUR 3,000 in costs. It also ordered the insertion of a notice in the newspaper Le Monde, of which the cost was to be shared between the defendants. An appeal was lodged against the judgment by the applicant, his co-defendants, the two judges with civil-party status and the public prosecutor.", "42. In a judgment of 28 May 2003, the Versailles Court of Appeal found that the summonses issued on the basis of L.L.’s complaint were null and void and that his action was time-barred, and it acquitted the three defendants under that head. It further upheld the convictions of the three defendants in respect of Judge M.’s complaint, together with the amount of the fine imposed on the applicant and the damages awarded to the judge, to whom it also awarded EUR 5,000 in court costs, in addition to the order to publish a notice in the daily newspaper Le Monde. Both the applicant and Judge L.L. appealed on points of law.", "43. On 12 October 2004 the Court of Cassation quashed the judgment in its entirety and remitted the case to the Rouen Court of Appeal.", "44. On 25 April 2005 the Rouen Court of Appeal took note of the fact that the three defendants waived any claim of nullity in respect of the summonses issued on the basis of Judge L.L.’s complaint and it adjourned the proceedings on the merits.", "45. On 8 June 2005 the President of the Criminal Division of the Court of Cassation dismissed applications from the three defendants and the civil parties for the immediate examination of their appeals on points of law.", "46. In a judgment of 16 July 2008, after a number of adjournments and the holding of a hearing on 30 April 2008, the Rouen Court of Appeal upheld the dismissal by the Nanterre tribunal de grande instance of the immunity objection, and also upheld the defendants’ convictions for complicity in the public defamation of civil servants in the applicant’s case. It ordered the applicant to pay a fine of EUR 4,000 and upheld the award of EUR 7,500 in damages to each of the judges, to be paid by the defendants jointly, together with the order to publish a notice in the daily newspaper Le Monde. As regards costs, it ordered the three defendants to pay EUR 4,000 to Judge L.L. and the applicant alone to pay EUR 1,000 to Judge M.", "47. In its reasoning, the Court of Appeal firstly took the view that to say that in handling a case an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness”, or in other words conduct incompatible with professional ethics and her judicial oath, was a particularly defamatory accusation as it was tantamount to accusing her of lacking integrity and of deliberately failing in her duties as a judge, thus questioning her capacity to discharge those duties. It further found that the applicant’s comments concerning the delay in forwarding the video-cassette amounted to accusing the judges of negligence in the handling of the case, thereby discrediting the professional competence of the judges and implying that the latter had deliberately kept hold of the cassette after the case was withdrawn from them, with the intention, at least, of causing obstruction. Allegedly, it was only because the lawyers had raised the matter with Judge P., followed by that judge’s request to Judge M., that the item of evidence had finally been obtained on 1 August 2000. The Court of Appeal added that such assertions, attributing to those judges a deliberate failure to perform the duties inherent in their office and a lack of integrity in the fulfilment of their obligations, constituted factual accusations which impugned their honour and reputation. It found this to be all the more true as the applicant, referring to the handwritten card from the public prosecutor of Djibouti to Judge M., had emphasised this atmosphere of suspicion and the negligent conduct of the judges by stating that this document proved the extent of the “connivance” between them. The court noted, on that point, that the word “connivance” represented in itself a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti. It merely served to confirm the defamatory nature of the previous comments, especially as the article added that the applicant had asked the Minister of Justice for an inspection by the General Inspectorate of Judicial Services.", "48. The Court of Appeal thus concluded that the comments were defamatory and that the veracity of the defamatory allegations had not been established. It took the view, on that point, that there was no evidence that Judge L.L. had been in possession of the video-cassette or that he had even been informed of its arrival, so he was not concerned by the delay in forwarding it; that the judgment of the Indictments Division of 21 June 2000, withdrawing the case from the two judges, merely expressed disapproval of the judges’ refusal to hold a reconstruction in the presence of the civil parties; that it had not been established that the video-cassette had reached Judge M. before the case was withdrawn from her or that it had been in her possession when the investigation was transferred to Judge P.; that there was nothing to suggest that Judge M. had acted with obstructive intent or that she had been unfair in her handling of the cassette; that the handwritten card addressed to Judge M. from the public prosecutor of Djibouti did not prove that there was any connivance between them, as friendly greetings and the use of the familiar form “ tu ” in contacts between legal officials did not necessarily reflect a complicit intimacy, and the possibility that they shared the same opinion did not prove any complicity or connivance on the part of the French judges such as to undermine the judicial investigation procedure, regardless of the conduct of the Djibouti public prosecutor in this case; that the letter from the lawyer representing witness A. addressed to the Crown Prosecutor in Belgium, complaining that Judge M. had put pressure on his client, was not sufficiently conclusive in itself to show that Judge M. had accepted the theory of suicide or that she was hindering the establishment of the truth, even though Judge M. had acknowledged that she had told the Belgian police that A. was an unreliable witness; and, lastly, that the numerous press articles carried no evidential weight as regards the conduct and attitude of the judges in their handling of the case.", "49. As regards the applicant’s defence of good faith, the Court of Appeal to which the case had been remitted noted that he had referred to the duties that were inherent in his profession and the results obtained in the case since the withdrawal of the case from Judges M. and L.L., as shown by the public prosecutor’s press statement of 19 June 2007; he had further relied on the judgment of the Douai Court of Appeal, also of 19 June 2007, upholding the decision to discontinue the proceedings started by the judges’ complaint alleging false accusation and on the conviction of the Djibouti public prosecutor by the Criminal Court of Versailles on 27 March 2008 for procuring a person to give false evidence.", "50. It observed that at the time the offence in question was committed, on 7 September 2000, the applicant had secured the withdrawal of the case from Judges M. and L.L. and that Judge P. had been in possession of the video-cassette since 1 August 2000. It took the view that the applicant had engaged in highly virulent attacks on the professional and moral integrity of the two judges, in comments that seriously questioned their impartiality and intellectual honesty, clearly overstepping the right to free criticism and no longer being of any procedural relevance. The Court of Appeal further found: that the decision in the applicant’s favour to discontinue the proceedings for false accusation initiated against him as a result of the judges’ complaint was not incompatible with his bad faith; that the excessive nature of the comments made by the applicant revealed the intensity of the conflict between him and the two judges, in particular Judge M., and were tantamount to an ex post facto settling of scores, as shown by the publication of the article on 7 September 2000, after the Indictments Division of the Paris Court of Appeal had received, on 5 September, the file in the “Scientology” case, in which Judge M. was suspected of being responsible for the disappearance of evidence; and that this showed, on the part of the applicant, personal animosity and an intention to discredit those judges, in particular Judge M., with whom he had been in conflict in various cases, thus ruling out any good faith on his part.", "51. The applicant, his two co-defendants and Judge M. all lodged an appeal on points of law against that judgment. In his pleadings, the applicant relied, as his first ground of appeal, on Article 10 of the Convention and the immunity provided for in section 41 of the Freedom of the Press Act, arguing that this provision sought to safeguard defence rights and protected lawyers in respect of any oral or written comments made in the context of any type of judicial proceedings, in particular of a disciplinary nature. As his second ground of appeal, he relied on Article 10 of the Convention, asserting that: the impugned comments concerned a case that had been receiving media coverage for some time, involving the suspicious circumstances in which a French judge seconded to Djibouti had been found dead “from suicide” and the questionable manner in which the judicial investigation had been conducted, with a clear bias against the civil party’s theory of premeditated murder; having regard to the importance of the subject of general interest in the context of which the comments had been made, the Court of Appeal was not entitled to find that he had overstepped the bounds of his freedom of expression; the Court of Appeal had not examined his good faith in the light of the comments that had been published in Le Monde, but in relation to the content of the letter to the Minister of Justice and it was not entitled to make any assessment concerning the judges’ conduct criticised therein; unless all lawyers were to be banned from speaking about pending cases, no personal animosity could be inferred from the mere fact that he had had a disagreement with one of the judges in the context of another set of proceedings; good faith was not subject to the current situation or to the fact that the issue had been “made good” by the withdrawal of the case from the judges, the lack of necessity of the comments not being incompatible with good faith; lastly, opinions expressed regarding the functioning of a fundamental institution of the State, as was the case regarding the handling of a criminal investigation, were not subject to a duty of prudence or limited to theoretical and abstract criticism, but could be personal where they had a sufficient factual basis.", "52. The appeals were initially supposed to be heard by a reduced bench of Section I of the Criminal Division of the Court of Cassation, as shown by the reporting judge’s report of 21 July 2009, the Court of Cassation’s online workflow for the case, and the three notices to parties issued on 15 September, and 14 and 27 October 2009, respectively, the last two of those documents having been sent after the date of the hearing. Consequently, Mr J.M. (see paragraph 27 above), who had become a judge at the Court of Cassation, assigned to the Criminal Division, and who was neither the Division President, nor the senior judge ( doyen ), nor the reporting judge, was not supposed to sit in that case.", "53. In a judgment of 10 November 2009, the Court of Cassation, in a formation eventually consisting of ten judges, including Mr J.M., dismissed the appeals on points of law. As regards the grounds raised by the applicant, it found that the objection of jurisdictional immunity had been validly rejected, as the fact of making public the letter to the Minister of Justice did not constitute an act of referral to the CSM and was not part of any proceedings involving the exercise of defence rights before a court of law. As to the various arguments expounded under the applicant’s second ground of appeal, it took the view that the Court of Appeal had justified its decision, finding as follows:", "“[W]hile everyone has the right to freedom of expression and while the public has a legitimate interest in receiving information on criminal proceedings and on the functioning of the courts, the exercise of those freedoms carries with it duties and responsibilities and may be subject, as in the present case where the admissible limits of freedom of expression in criticising the action of judges have been overstepped, to such restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation and rights of others.”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. Applicable domestic law on defamation", "54. The relevant provisions of the Freedom of the Press Act of 29 July 1881 read as follows.", "Section 23", "“Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited the perpetrator or perpetrators to commit a serious crime or major offence [ crime ou délit ], and if the incitement has been acted upon, shall be punished as an accessory to the said offence.", "This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime [ crime ] under Article 2 of the Criminal Code.”", "Section 29", "“The making of any factual allegation or imputation that damages the honour or reputation of the person or body to whom the fact in question is attributed shall constitute defamation [ diffamation ]. The direct publication or reproduction of such an allegation or imputation shall be punishable, even where it is expressed in sceptical terms or made about a person or body that is not expressly named but is identifiable by the terms of the offending speeches, shouts, threats, written or printed matter, placards or posters.", "The use of abusive or contemptuous language or invective not containing an allegation of any fact shall constitute an insult [ injure ].”", "Section 31", "“Where defamation is committed by the same means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, ..., the offence shall be punishable by the same penalty. ...”", "Section 41", "“... No proceedings for defamation, insult or abuse shall arise from any faithful record of judicial proceedings drawn up in good faith, or from any statements made or pleadings filed in a court of law.", "Courts examining the merits of the case may nevertheless order the exclusion of the insulting, contemptuous or defamatory statements, and award damages against the person concerned.", "Defamatory allegations that are unrelated to the case may, however, give rise to criminal prosecution or civil actions by the parties, where such actions have been left open to them by the courts, and, in any event, to civil action by third parties.”", "Section 55", "“Where the defendant wishes to be allowed to prove the veracity of the defamatory allegations, in accordance with section 35 hereof, he shall, within ten days from the service of the summons, notify the public prosecutor or the complainant, at the address for service designated thereby, depending on whether the proceedings have been initiated by the former or the latter, of:", "(1) The allegations as given and described in the summons of which he seeks to prove the veracity;", "(2) Copies of the documents;", "(3) The names, occupations and addresses of the witnesses he intends to call for the said purpose.", "The said notice shall contain the choice of the address for service in the proceedings before the criminal court, and all requirements shall be met on pain of forfeiting the right to bring evidence.”", "B. Code of Criminal Procedure", "55. Article 11 of the Code of Criminal Procedure provides as follows:", "Article 11", "“Except where the law provides otherwise and without prejudice to the rights of the defence, proceedings in the course of the preliminary and judicial investigations shall be conducted in secret.", "Any person contributing to such proceedings shall be bound by a duty of professional secrecy under the conditions and subject to the penalties set out in Articles 226-13 and 226-14 of the Criminal Code.", "However, in order to prevent the dissemination of incomplete or inaccurate information, or to put an end to a breach of the peace, the public prosecutor may, of his own motion or at the request of the judicial authority responsible for pre-trial investigation or the parties, make public any objective elements from the proceedings that do not convey any judgment as to the merits of the charges brought against the individuals concerned.”", "C. Exercise of the legal profession", "56. Recommendation Rec(2000)21 of the Council of Europe’s Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) states as follows.", "“ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the rule of law, in which lawyers take part, in particular in the role of defending individual freedoms;", "Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter or for any reason;", "...", "Principle I – General Principles on the freedom of exercise of the profession of lawyer", "1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...”", "57. The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990) state, in particular:", "“16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.", "...", "22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”", "58. The Council of Bars and Law Societies of Europe (CCBE) has adopted two founding texts: the Code of Conduct for European Lawyers, which dates back to 28 October 1988 and has undergone a number of amendments, and the Charter of Core Principles of the European Legal Profession, which was adopted on 24 November 2006. The Charter, which is not conceived as a code of conduct, contains a list of ten core principles common to the national and international rules regulating the legal profession.", "“(a) the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case;", "(b) the right and duty of the lawyer to keep clients’ matters confidential and to respect professional secrecy;", "(c) avoidance of conflicts of interest, whether between different clients or between the client and the lawyer;", "(d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer;", "(e) loyalty to the client;", "(f) fair treatment of clients in relation to fees;", "(g) the lawyer’s professional competence;", "(h) respect towards professional colleagues;", "(i) respect for the rule of law and the fair administration of justice; and", "(j) the self-regulation of the legal profession.”", "59. Lastly, there is a practical guide to the international principles concerning the independence and responsibility of judges, lawyers and prosecutors, produced by the International Commission of Jurists (initially in 2004, the most recent version being issued on 22 July 2009), which contains many significant and relevant international documents.", "D. Relations between judges and lawyers", "60. The relevant passages of Opinion no. (2013) 16 on the relations between judges and lawyers, adopted by the Consultative Council of European Judges (CCJE) on 13-15 November 2013, read as follows.", "“6. Within the framework of their professional obligation to defend the rights and interests of their clients, lawyers must also play an essential role in the fair administration of justice. Paragraph 6 of the Commentary on the Charter of Core Principles of the European Legal Profession of the CCBE defines the lawyer’s role as follows: ‘The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves his or her own client’s interests and protects the client’s rights, also fulfils the functions of the lawyer in Society – which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognised principles of civil, public or criminal law and with due account of rights and interests, to further the development of the law, and to defend liberty, justice and the rule of law’. As it is stated in paragraph 1.1 of the Code of Conduct for European Lawyers of the CCBE, respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. The UN Basic Principles on the Role of Lawyers state that adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession. Principle 12 stipulates that lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.", "7. Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice.", "The CCJE refers to Recommendation CM/Rec (2010)12, paragraph 7, which states that the independence of judges should be guaranteed at the highest possible legal level. The independence of lawyers should be guaranteed in the same way.", "...", "9. Two areas of relations between judges and lawyers may be distinguished:", "– on the one hand, the relations between judges and lawyers which stem from the procedural principles and rules of each state and which will have a direct impact on the efficiency and quality of judicial proceedings. In the conclusions and recommendations set out in its Opinion No. 11 (2008) on the quality of judicial decisions, the CCJE pointed out that the standard of quality of judicial decisions will clearly be the result of interactions between the numerous actors in the judicial system;", "– on the other hand, the relations which result from the professional conduct of judges and lawyers and which require mutual respect for the roles played by each side and a constructive dialogue between judges and lawyers.", "...", "19. Judges and lawyers each have their own set of ethical principles. However, several ethical principles are common to both judges and lawyers, e.g. compliance with the law, professional secrecy, integrity and dignity, respect for litigants, competence, fairness and mutual respect.", "20. The ethical principles of judges and lawyers should also concern themselves with the relations between the two professions.", "...", "With regard to lawyers, paragraphs 4.1, 4.2, 4.3 and 4.4 of the CCBE Code of Conduct for European Lawyers express the following principles: a lawyer who appears, or takes part in a case, before a court or tribunal must comply with the rules of conduct applied before that court or tribunal. A lawyer must always have due regard for the fair conduct of the proceedings. A lawyer shall, while maintaining due respect and courtesy towards the court, defend the interests of the client honourably and fearlessly without regard to the lawyer’s own interests or to any consequences to him- or herself or to any other person. A lawyer shall never knowingly give false or misleading information to the court.", "21. The CCJE considers that the relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-à-vis each other.", "The CCJE accordingly considers it necessary to develop dialogues and exchanges between judges and lawyers at a national and European institutional level on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account. In this regard, the CCJE encourages the identification of common ethical principles, such as the duty of independence, the duty to sustain the rule of law at all times, co-operation to ensure a fair and swift conduct of the proceedings and permanent professional training. Professional associations and independent governing bodies of both judges and lawyers should be responsible for this process.", "...", "24. Relations between judges and lawyers should always preserve the court’s impartiality and image of impartiality. Judges and lawyers should be fully conscious of this, and adequate procedural and ethical rules should safeguard this impartiality.", "25. Both judges and lawyers enjoy freedom of expression under Article 10 of the Convention.", "Judges are, however, required to preserve the confidentiality of the court’s deliberations and their impartiality, which implies, inter alia, that they must refrain from commenting on proceedings and on the work of lawyers.", "The freedom of expression of lawyers also has its limits, in order to maintain, as is provided for in Article 10, paragraph 2 of the Convention, the authority and impartiality of the judiciary. Respect towards professional colleagues, respect for the rule of law and the fair administration of justice – the principles (h) and (i) of the Charter of Core Principles of the European Legal Profession of the CCBE – require abstention from abusive criticism of colleagues, of individual judges and of court procedures and decisions.”", "E. The decriminalisation of defamation", "61. Recommendation 1814 (2007) of the Parliamentary Assembly of the Council of Europe, “Towards decriminalisation of defamation”, states, inter alia, as follows.", "“1. The Parliamentary Assembly, referring to its Resolution 1577 (2007) entitled ‘Towards decriminalisation of defamation’, calls on the Committee of Ministers to urge all member states to review their defamation laws and, where necessary, make amendments in order to bring them into line with the case law of the European Court of Human Rights, with a view to removing any risk of abuse or unjustified prosecutions;", "2. The Assembly urges the Committee of Ministers to instruct the competent intergovernmental committee, the Steering Committee on the Media and New Communication Services (CDMC) to prepare, following its considerable amount of work on this question and in the light of the Court’s case law, a draft recommendation to member states laying down detailed rules on defamation with a view to eradicating abusive recourse to criminal proceedings.", "...”", "62. The response of the Committee of Ministers, adopted at the 1,029th meeting of the Ministers’ Deputies (11 June 2008), reads as follows.", "“1. The Committee of Ministers has studied Parliamentary Assembly Recommendation 1814 (2007) entitled ‘Towards decriminalisation of defamation’ with great attention. It has communicated the recommendation to the governments of member states as well as to the Steering Committee on the Media and New Communication Services (CDMC), the European Committee on Crime Problems (CDPC), the Steering Committee for Human Rights (CDDH) and the Council of Europe Commissioner for Human Rights, for information and possible comments. The comments received are contained in the appendix.", "2. By decision of 24 November 2004, the Committee of Ministers instructed the Steering Committee on Mass Media (CDMM), which subsequently became the Steering Committee on the Media and New Communication Services (CDMC), inter alia, to look into ‘the alignment of laws on defamation with the relevant case law of the European Court of Human Rights, including the issue of decriminalisation of defamation’. It took note of the reply received in September 2006 and of the fact that the CDMC considered it desirable that member states should take a proactive approach in respect of defamation by examining, even in the absence of judgments of the European Court of Human Rights concerning them directly, domestic legislation against the standards developed by the Court and, where appropriate, aligning criminal, administrative and civil legislation with those standards. In the above-mentioned document, the CDMC also considered that steps should be taken to ensure that the application in practice of laws on defamation fully complies with those standards.", "3. The Committee of Ministers endorses this view, as well as the Parliamentary Assembly’s call on member states to take such measures, with a view to removing all risk of abuse or unjustified prosecutions.", "4. Bearing in mind the role of the European Court of Human Rights in developing general principles on defamation through its case law and its power to adjudicate claims of violations of Article 10 in specific cases, the Committee of Ministers does not consider it advisable at this point in time to develop separate detailed rules on defamation for member states.", "5. Finally, the Committee of Ministers considers that there is no need at present to revise its Recommendation No. R (97) 20 on hate speech or to prepare guidelines on this subject. More efforts could instead be made by member states to give the recommendation more visibility and to make better use of it.”", "F. Judgment of the International Court of Justice (ICJ) of 4 June 2008 in the case of Djibouti v. France", "63. In its judgment of 4 June 2008 in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the ICJ noted that it was not its task to determine the facts and establish responsibilities in the Borrel case and, in particular, the circumstances in which Bernard Borrel had met his death, but added that the dispute between the two States had originated in that case, as a result of the opening of a number of judicial proceedings, in France and in Djibouti, and the resort to bilateral treaty mechanisms for mutual assistance between the parties. The ICJ observed in particular that, although the subject of the dispute was described in Djibouti’s application as the transmission by the French authorities of the Borrel case file to Djibouti, taken as a whole the application had a wider scope, which included the summonses sent to the Djiboutian President and those sent to two other Djiboutian officials, together with the arrest warrants subsequently issued against the latter.", "64. The ICJ found, in particular, that the decision by the French investigating judge to refuse the request for mutual assistance had been justified by the fact that the transmission of the Borrel case file was considered to be “contrary to the essential interests of France”, in that the file contained declassified “defence secret” documents, together with information and witness statements in respect of another case in progress. It took the view that those reasons fell within the scope of Article 2 (c) of the Convention on Mutual Assistance in Criminal Matters, which allowed a requested State to refuse to execute letters rogatory if it considered that such assistance would be likely to prejudice the sovereignty, the security, the ordre public or other essential interests of the nation. The ICJ further decided not to order the transmission of the Borrel file with certain pages removed, as Djibouti had requested in the alternative. It held, however, that France had failed in its obligation to give reasons for its refusal to execute the letter rogatory, while rejecting Djibouti’s other submissions concerning the summonses addressed to the President and the two other senior Djiboutian officials.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "65. The applicant claimed that, before the Court of Cassation, his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of a judge who had previously and publicly expressed his support for one of the civil parties, Judge M. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. The Chamber judgment", "66. After noting that the applicant had not been in a position to request the judge’s withdrawal, as he had not been informed before the hearing of the change in the composition of the bench that was to examine his appeal on points of law and that the procedure was mainly written, the Chamber examined the complaint in terms of objective impartiality. It noted that Judge J.M., one of the judges who had sat on the bench of the Criminal Division of the Court of Cassation ruling on an appeal from Judge M. and from the applicant stemming from a dispute between them, had, nine years earlier, publicly expressed his support for and trust in Judge M. in connection with another case in which she had been the investigating judge and the applicant had been acting for a civil party. Having regard to the facts, there was clear opposition between the applicant and Judge M., both in the case for which she had received the support of Judge J.M. and in the case in which J.M. was sitting as a judge of the Court of Cassation. Moreover, J.M.’s support had been expressed in an official and quite general context, at the general meeting of the judges of the Paris tribunal de grande instance. The Chamber found that there had been a violation of Article 6 § 1, as serious doubts could be raised as to the impartiality of the Court of Cassation and the applicant’s fears in that connection could be regarded as objectively justified.", "B. The parties’ submissions before the Grand Chamber", "1. The applicant", "67. The applicant recognised that it was not established that Judge J.M. had displayed any personal bias against him, but argued that regardless of his personal conduct, his very presence on the bench created a situation which rendered his fears objectively justified and legitimate. In his submission, the fact that J.M. had sat on the bench of the Criminal Division of the Court of Cassation sufficed in itself to show that there had been a violation of Article 6 § 1 of the Convention. Judge J.M. had in the past expressed his support for Judge M., when the latter was conducting the judicial investigation in the “Scientology” case, in response to criticisms of her professional conduct from the civil parties, whose representatives included the applicant, and by the public prosecutor. The applicant pointed out that Judge M. had ultimately been taken off the case at his request and that on 5 January 2000 the French State had been found liable for failings in the public justice system.", "68. He argued that he had not been in a position to seek the withdrawal of Judge J.M., as he had not known, and could not reasonably have known, that this judge was going to sit in his case: the report of the reporting judge, the online workflow for the case and the notices to the lawyers had all given the same information, namely that the Criminal Division was to sit as a reduced bench. The reduced bench comprised the President of the Division, the senior judge ( doyen ) and the reporting judge, and as Judge J.M. occupied none of those positions he could not have been expected to sit.", "69. On the merits, the applicant did not claim that Judge J.M. had displayed any personal bias against him and was not calling into question that judge’s right to freedom of expression. He complained merely of Judge J.M.’s presence on the bench, which in his view rendered his fears of a lack of impartiality objectively justified and legitimate. In view of the support expressed by J.M. in favour of Judge M. in the context of another high-profile case with the same protagonists, there was serious doubt as to the impartiality of the Criminal Division and his fears in that connection could be regarded as objectively justified.", "2. The Government", "70. The Government observed that there was no question of any lack of subjective impartiality on the part of Judge J.M. and that it was therefore necessary to determine whether the circumstances of the case were such as to raise serious doubts regarding the Court of Cassation’s objective impartiality. Referring to the effect of the statement made in July 2000 by Judge J.M., who at the time had been serving on the Paris tribunal de grande instance, they pointed out that the statement, made many years before the hearing of the Criminal Division, concerned a different case from the present one and that the terms used reflected a personal position which related only to the conditions in which disciplinary proceedings against a fellow judge had become known. The Government concluded that those remarks, which were limited in scope and had been made a long time before, were not sufficient to establish that, in his capacity as judge of the Court of Cassation, J.M. lacked objective impartiality.", "71. The Government further stated that appeals on points of law were extraordinary remedies and that the Court of Cassation’s oversight was restricted to compliance with the law. Moreover, it was an enlarged bench of the Criminal Division, comprising ten judges, that had considered the case.", "72. The Government accordingly argued that Article 6 § 1 of the Convention had not been breached.", "C. The Court’s assessment", "1. General principles", "73. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009).", "74. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, § 119, and Micallef, § 94, both cited above). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86).", "75. In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, § 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III).", "76. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, § 96).", "77. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (ibid., § 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, § 38).", "78. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII, and Micallef, cited above, § 98).", "2. Application of those principles in the present case", "79. In the present case, the fear of a lack of impartiality lay in the fact that Judge J.M., who sat on the Court of Cassation bench which adopted the judgment of 10 December 2009, had expressed his support for Judge M. nine years earlier, in the context of disciplinary proceedings that had been brought against her on account of her conduct in the “Scientology” case. Speaking as a judge and a colleague in the same court, in the course of a general meeting of judges of the Paris tribunal de grande instance on 4 July 2000, at which he had subsequently voted in favour of the motion of support for Judge M., J.M. had stated: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust” (see paragraphs 27-28 above).", "80. The Grand Chamber notes at the outset that the applicant acknowledged in his observations that it was not established that Judge J.M. had displayed any personal bias against him. He argued merely that regardless of his personal conduct, the very presence of J.M. on the bench created a situation which rendered his fears objectively justified and legitimate (see paragraph 67 above).", "81. In the Court’s view, the case must therefore be examined from the perspective of the objective impartiality test, and more specifically it must address the question whether the applicant’s doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case.", "82. Accordingly, the Court firstly takes the view that the language used by Judge J.M. in support of a fellow judge, Judge M., who was precisely responsible for the bringing of criminal proceedings against the applicant in the case now in issue, was capable of raising doubts in the defendant’s mind as to the impartiality of the “tribunal” hearing his case.", "83. Admittedly, the Government argued in their observations, among other things, that the remarks by J.M. were not sufficient to establish a lack of objective impartiality on his part, as they had been made a long time before and the words used reflected a personal position which concerned only the conditions in which the information regarding the bringing of disciplinary proceedings against a colleague of the same court had been forthcoming.", "84. The Court takes the view, however, that the very singular context of the case cannot be overlooked. It would firstly point out that the case concerned a lawyer and a judge, who had been serving in that capacity in connection with two judicial investigations in particularly high-profile cases: the Borrel case, in the context of which the applicant’s impugned remarks had been made, and the “Scientology” case, which had given rise to the remarks by J.M. It further notes, like the Chamber, that Judge M. was already conducting the investigation in the Borrel case, with its significant media coverage and political repercussions, when J.M. publicly expressed his support for her in the context of the “Scientology” case (see also paragraph 29 above). As emphasised by the Chamber, J.M. had then expressed his view in an official setting, at the general meeting of judges of the Paris tribunal de grande instance.", "85. The Court further observes that the applicant, who in both cases was the lawyer acting for civil parties who criticised the work of Judge M., was subsequently convicted on the basis of a complaint by the latter: accordingly, the professional conflict took on the appearance of a personal conflict, as Judge M. had applied to the domestic courts seeking redress for damage stemming from an offence that she accused the applicant of having committed.", "86. The Court would further emphasise, on that point, that the judgment of the Court of Appeal to which the case had been remitted itself expressly established a connection between the applicant’s remarks in the proceedings in question and the “Scientology” case, concluding that this suggested, on the part of the applicant, an “ ex post facto settling of scores” and personal animosity towards Judge M., “with whom he had been in conflict in various cases” (see paragraph 50 above).", "87. It was precisely that judgment of the Court of Appeal which the applicant appealed against on points of law and which was examined by the bench of the Criminal Division of the Court of Cassation on which Judge J.M. sat. The Court does not agree with the Government’s argument to the effect that this situation does not raise any difficulty, since an appeal on points of law is an extraordinary remedy and the review by the Court of Cassation is limited solely to the observance of the law.", "88. In its case-law the Court has emphasised the crucial role of cassation proceedings, which form a special stage of the criminal proceedings with potentially decisive consequences for the accused, as in the present case, because if the case had been quashed it could have been remitted to a different court of appeal for a fresh examination of both the facts and the law. As the Court has stated on many occasions, Article 6 § 1 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, but a State which does institute such courts is required to ensure that persons having access to the law enjoy before such courts the fundamental guarantees in Article 6 (see, among other authorities, Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11; Omar v. France, 29 July 1998, § 41, Reports 1998-V; Guérin v. France, 29 July 1998, § 44, Reports 1998-V; and Louis v. France, no. 44301/02, § 27, 14 November 2006), and this unquestionably includes the requirement that the court must be impartial.", "89. Lastly, the Court takes the view that the Government’s argument to the effect that J.M. was sitting on an enlarged bench comprising ten judges is not decisive for the objective-impartiality issue under Article 6 § 1 of the Convention. In view of the secrecy of the deliberations, it is impossible to ascertain J.M.’s actual influence on that occasion. Therefore, in the context thus described (see paragraphs 84-86 above), the impartiality of that court could have been open to genuine doubt.", "90. Furthermore, the applicant had not been informed that Judge J.M. would be sitting on the bench and had no reason to believe that he would do so. The Court notes that the applicant had, by contrast, been notified that the case would be examined by a reduced bench of the Criminal Division of the Court of Cassation, as is confirmed by the reporting judge’s report, the Court of Cassation’s online workflow for the case and three notices to parties, including two that were served after the date of the hearing (see paragraph 52 above). The applicant thus had no opportunity to challenge J.M.’s presence or to make any submissions on the issue of impartiality in that connection.", "91. Having regard to the foregoing, the Court finds that in the present case the applicant’s fears could have been considered objectively justified.", "92. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "93. The applicant alleged that his criminal conviction had entailed a violation of his right to freedom of expression as provided for by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "94. The Chamber found that there had been no violation of Article 10 of the Convention. It noted that the applicant had not confined himself to factual statements concerning the ongoing proceedings, but had accompanied them with value judgments which cast doubt on the impartiality and fairness of a judge.", "95. The Chamber, after noting that the investigating judge in question was no longer handling the case, took the view, firstly, that the applicant should have waited for the outcome of his request addressed the previous day to the Minister of Justice seeking an investigation by the General Inspectorate of Judicial Services into the alleged numerous shortcomings in the judicial investigation and, secondly, that the applicant had already successfully used a legal remedy to seek to cure any defects in the proceedings and the judge concerned by his remarks had been taken off the case. In view of the foregoing and the use of terms that the Chamber found particularly harsh, it took the view that the applicant had overstepped the limits that lawyers had to observe in publicly criticising the justice system. It added that its conclusion was reinforced by the seriousness of the accusations made in the article, and that, also having regard to the chronology of the events, it could be inferred that the applicant’s remarks were driven by a degree of personal animosity towards the judge. As to the “proportionality” of the sanction, the Chamber found that a fine of EUR 4,000, together with an award of EUR 7,500 in damages to each of the judges, did not appear excessive.", "B. The parties’ submissions before the Grand Chamber", "1. The applicant", "96. The applicant argued that the Court’s case-law guaranteed strong protection to the freedom of expression of lawyers, who played a key role in the administration of justice and the upholding of the rule of law, with any restriction having to remain exceptional. Such protection could be explained by two reasons: firstly, no special circumstances could justify affording a wide margin of appreciation to States, bearing in mind that European and international texts, on the contrary, protected lawyers in the activity of defending their clients; secondly, their freedom of expression was linked to their clients’ right to a fair trial under Article 6 of the Convention. He further observed that the right of lawyers to make press statements as part of their clients’ defence was expressly acknowledged and that, in principle, there was, at European level, significant tolerance of lawyers’ criticism of judges, even when made in a public and media setting. He submitted, however, that the Chamber judgment highlighted some major uncertainties and vagaries in the case-law that affected the exercise of such freedom, especially outside the courtroom. He hoped that his case would enable the Grand Chamber to clarify the interpretation of the Convention on that point and to secure the protection of lawyers’ speech.", "97. He proposed in this connection a formal approach to lawyers’ freedom of expression, based on the defence and interests of their clients, to ensure special protection in this context for the purposes of Article 10 of the Convention. Such an approach would also have the effect of dispelling the ambiguity surrounding the status of lawyers, who participated in the smooth running of the justice system but, on the other hand, did not have to adopt a conciliatory posture vis-à-vis that system and its members, as their primary role was to defend their clients. Being a key witness to the proceedings, lawyers should be afforded a functional protection that was not limited to the courtroom and was as broad as possible, in order to contribute effectively to defending their clients and informing the public. Such a functional approach would also make it possible to take effective action in response to any excesses and abuses committed by lawyers in breach of professional ethics and to preserve the necessary protection of judges from frivolous accusations. Any abuse of the primary purpose of the strengthened protection of the lawyer’s freedom of expression, namely to uphold the rights of the defence, could thus entail sanctions.", "98. In the present case, the applicant observed that his conviction could be regarded as an interference with the exercise of his right to freedom of expression. He did not dispute the fact that it was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881.", "99. Whilst he did not deny, either, that it pursued the legitimate aim of the protection of the reputation or rights of others, in his view the idea that the criminal proceedings against him sought to “maintain the authority and impartiality of the judiciary” should be seriously called into question, as the impugned remarks were, on the contrary, intended to strengthen, rather than undermine, such authority. The applicant further submitted that the Chamber had wrongly placed on the same footing, on the one hand, the freedom of expression of lawyers and the public’s right to be informed about matters of general interest, and on the other, the dignity of the legal profession and the good reputation of judges; while the former were rights guaranteed by Article 10 of the Convention, the latter were merely interests that might warrant a restriction, which had to remain exceptional.", "100. As to the interference and whether it was necessary in a democratic society, the applicant took the view that it did not correspond to any pressing social need and that it was not proportionate to the aims pursued.", "101. The argument that there was no pressing social need was mainly supported by the context in which the remarks were made, because the case had received significant media coverage, as the Court had previously noted in its judgment in July and SARL Libération v. France (no. 20893/03, ECHR 2008) and as confirmed by the Chamber in paragraph 76 of its judgment. In addition, the status of the victim, the place and circumstances of his death, the diplomatic ramifications of the case, and the suspicions that the current President of the Republic of Djibouti might have been involved as the instigator, all showed that the case concerned a matter of general interest requiring strong protection of freedom of expression. Moreover, on 19 June 2007 the Paris public prosecutor had issued a press release stating that the theory of suicide had now been discounted in favour of a criminal explanation. That statement had been made at the request of the investigating judge under Article 11, paragraph 3, of the Code of Criminal Procedure (permitting the public disclosure of details of the case to avoid the dissemination of incomplete or inaccurate information, or to put an end to a breach of public order). The case was so sensitive that the investigation was now being handled by three investigating judges.", "102. The applicant argued that the remarks regarding the shortcomings in the justice system, in the context of the lawyer’s duty to defend a client, could be deemed to merit even stronger protection. He denied going beyond the limits of permissible criticism: his comments concerned only the professional conduct of Judges M. and L.L., which was so crucial for the civil parties; the remarks had a sufficient factual basis which lay in two proven facts, firstly, the fact that the video-cassette in issue had not been transmitted to the new investigating judge with the rest of the case file and, secondly, the existence of the handwritten card from the prosecutor of Djibouti to Judge M.; moreover, the proceedings brought against the applicant and his colleague Mr L. de Caunes by Judges M. and L.L. for false accusation, following the letter sent by the lawyers to the Minister of Justice, had resulted in a discontinuance order, which had been upheld on appeal.", "103. As to the accusation that he had shown personal animosity, the applicant rejected this, pointing out that only the content and subject of the impugned remarks should be taken into account, not any intentions that might be wrongly attributed to him. The applicant added that he was not responsible for the reference to the disciplinary proceedings pending against Judge M. and he noted that, in any event, Judge L.L. had also lodged a criminal complaint, without there being any suggestion of personal animosity towards that judge as well. The applicant also denied that any insults or abuse could be detected in the remarks published in Le Monde. Lastly, he submitted that he was merely defending his client’s position in public, keeping her interests in mind without going beyond the scope of his duty of defence. He was of the view, in that connection, that this could not have influenced the ministerial or judicial authorities and he moreover challenged the idea that legal action by a lawyer on behalf of his client should preclude any comments in the press where the case aroused public interest. He asserted that, on the contrary, a lawyer was entitled to decide freely on his defence strategy for the benefit of his client.", "104. Lastly, the applicant submitted that the sanction imposed had been particularly disproportionate. The criminal sanction had consisted of a fine of EUR 4,000, which was higher than the fine imposed on the journalist and director of Le Monde (respectively EUR 3,000 and EUR 1,500). In the civil part of the judgment, in addition to the sums awarded to cover the costs of Judges M. and L.L., he had been ordered to pay, jointly with his co-defendants, EUR 7,500 in damages to each of the two judges. Lastly, the publication of a notice in Le Monde, with a fine of EUR 500 per day in the event of delay, had been ordered. He submitted that such sanctions were unjustified and disproportionate and that they would inevitably have a significant and regrettable chilling effect on all lawyers.", "2. The Government", "105. The Government did not deny that the applicant’s conviction constituted an interference with the exercise of his right to freedom of expression. They took the view, however, that this interference was prescribed by law, since its legal basis lay in section 23 and sections 29 et seq. of the Act of 29 July 1881, and that it pursued a legitimate aim. On that latter point they argued that it sought to maintain the authority and impartiality of the judiciary, and to ensure the protection of the reputation or rights of others, since the statements had been directed at judges in the exercise of their duties and also undermined the confidence of citizens in the judiciary.", "106. As to whether the interference was necessary in a democratic society, the Government were of the view that there was a fundamental difference between lawyers and journalists because of the former’s position as officers of the court ( auxiliaires de justice ). They occupied a central position as intermediaries between the public and the courts and their activities helped to ensure that justice was administered effectively and dispassionately. A balance had to be struck between the legitimate aim of informing the public about matters of general interest, including issues relating to the functioning of the justice system, and the requirements stemming from the proper administration of justice, on the one hand, and the dignity of the legal profession and the reputation of the judiciary, on the other.", "107. The Government noted two different situations in the Court’s case-law on freedom of expression: the participation of lawyers in debates on matters of general interest unrelated to any pending proceedings, where freedom of expression was particularly broad; and statements made by lawyers in their role of defending clients, where they had a wide freedom of expression in the courtroom. That freedom of expression in defending a client in pending proceedings did have certain limits, however, in order to preserve judicial authority, such as, for example, where the lawyer made statements critical of the justice system before even using the legal remedies available to him to rectify the shortcomings in question. The Government submitted that lawyers, as officers of the court, were thus obliged to use legal proceedings to correct any alleged errors; by contrast, harsh criticism in the press, where legal means could be used instead, was not justified by the requirements of the effective defence of the lawyer’s client and cast doubt on the probity of the justice system.", "108. In the present case the Government took the view that there had been numerous possible judicial remedies open to the applicant for the effective defence of his client and that he had in fact made use of them. His statements in the media could therefore only have been for the purpose of informing the public about a subject of general interest, but, as they concerned an ongoing case, he should have spoken with moderation.", "109. In examining the impugned remarks, the Government referred to the margin of appreciation afforded to States in such matters. The article in question concerned a particularly sensitive case which, from the outset, had received significant media coverage. In their view, it could be seen from the article in Le Monde that the offending remarks were aimed, unequivocally, at the two judges and were phrased in terms that impugned their honour. The applicant had not confined himself to a general criticism of the institutions but had expressed biased views, without the slightest prudence. In the Government’s submission, he had not made factual statements regarding the functioning of the judicial system, but rather value judgments that cast serious doubt on the investigating judges’ integrity. The Government stated that the domestic courts had carefully examined each of the statements in question to establish whether they went beyond the limits of acceptable criticism. They further submitted that the evidence produced by the applicant was devoid of probative value.", "110. Concerning the applicant’s unsuccessful defence of good faith, based on the duties inherent in his responsibility to defend his client’s interests, the Government observed that the French courts had assessed good faith in the light of Article 10 of the Convention and the four criteria that had to be fulfilled concurrently: the legitimacy of the aim pursued, the absence of personal animosity, the seriousness of the investigation carried out or of the evidence obtained by the author of the comments and, lastly, the prudence shown in expressing them. The domestic courts had taken the view that those conditions had not been fulfilled in the present case and had regarded the applicant’s remarks as a settling of scores with a judge. The applicant was at fault not for expressing himself outside the courtroom, but for using excessive comments, whereas he could have expressed himself without impugning the honour of State officials.", "111. The Government submitted that such attacks on judges did not contribute either to a clear public understanding of the issues, since the judicial authority had no right of reply, or to the proper conduct of the judicial proceedings in a context in which the investigating judge who was the subject of the harsh criticism had already been removed from the case. In their view, neither was it a matter of zealous defence by a lawyer of his client, because there were judicial remedies that he could have used to submit his complaint. The Government referred to the Court’s inadmissibility decision in Floquet and Esménard v. France ((dec.), nos. 29064/08 and 29979/08, 10 January 2012), which concerned comments made by journalists in the Borrel case, particularly as, in the present case, it was not a journalist but a lawyer who was the author of the impugned statements, and moreover in a case that was pending in the domestic courts.", "112. As to the sanction imposed on the applicant, the Government were of the view that it could not be regarded as excessive or such as to have a chilling effect on the exercise of freedom of expression. They thus submitted that there had been no violation of Article 10 of the Convention.", "C. Observations of the third-party interveners before the Grand Chamber", "1. Observations of the Council of Bars and Law Societies of Europe (CCBE)", "113. The CCBE observed that the Court’s judgment in the present case would most certainly have a considerable impact on the conditions of interpretation and application of the standards of conduct imposed on European lawyers and more particularly with regard to their freedom of speech and expression in the context of the exercise of defence rights. Lawyers held a key position in the administration of justice and it was necessary to protect their specific status. Being the cornerstone of a democratic society, freedom of expression had a particular characteristic as regards lawyers, who had to be able to carry on their profession without hindrance; if the use of their speech were to be censored or restricted, the real and effective defence of the citizen would not be guaranteed.", "114. The CCBE referred to the Court’s case-law to the effect that a restriction of freedom of expression would entail a violation of Article 10 unless it fell within the exceptions mentioned in paragraph 2 of that Article. The examination criteria related to the existence of an interference, its legal foreseeability, whether it was necessary in a democratic society to meet a “pressing social need” and the specific circumstances of the case. In the CCBE’s view, these criteria were all the more valid where a lawyer defending Convention rights was concerned.", "115. The limits to freedom of expression had firstly to be reasonably foreseeable, with a more restrictive and precise definition of the criteria relating to the restrictions that could be placed on lawyers’ freedom of expression. The CCBE noted discrepancies in the assessment by the various Sections of the Court: in a related case (see July and SARL Libération, cited above) the Court had found a violation of Article 10, whereas the Chamber in the present case had found no violation. In the CCBE’s view such discrepancies in assessment appeared to be the result of different approaches to the remarks of a lawyer: a degree of immunity applied to any views, however harsh, on the justice system or a court, whilst criticism of a judge did not enjoy such immunity. Such a distinction was extremely difficult to apply and gave rise to almost insurmountable problems, on account of the interdependence between the general and the personal in the conduct of proceedings, together with the fact that, in an inquisitorial system, judicial office could not be separated from the institution itself.", "116. As the present case concerned freedom of expression outside the courtroom, the limits also had to take account of the fact that in sensitive and high-profile cases, and especially in those where reasons of State were at stake, lawyers often had no choice but to speak publicly to voice concerns regarding a hindrance to the proper conduct of the proceedings. In such cases, lawyers should have the same freedom of speech and expression as journalists. To restrict their freedom of expression, particularly when the proceedings were part of an inquisitorial system as in France, would prevent them from contributing to the proper administration of justice and ensuring public confidence therein.", "117. The CCBE observed that as soon as a case attracted media attention, and, more particularly, where reasons of State were at stake, the rights of the defence, in certain cases, could only be meaningfully safeguarded by means of a public statement, even one that was somewhat vocal. Referring to the Court’s findings in Mor v. France (no. 28198/09, § 42, 15 December 2011), it took the view that the fact that neither the competent judicial authority nor the professional disciplinary body had initiated proceedings would provide a foreseeable test in relation to the uncertainties surrounding any inappropriate action by a judge, whose office could not be distinguished from the judicial authority itself.", "2. Joint observations of the Paris Bar Association, the National Bar Council and the Conference of Chairmen of French Bars", "118. These third-party interveners pointed out, firstly, that until recently the issue of a lawyer’s freedom of speech had arisen only inside the courtroom, and that in the context of defending a client at a hearing, the lawyer was protected by immunity from legal proceedings, an immunity which covered pleadings and oral argument before a court, under section 41 of the Act of 29 July 1881. This immunity authorised remarks which could be considered offensive, defamatory or injurious.", "119. In their view, the point of principle in the present case was the lawyer’s freedom of expression to defend his client when he was addressing the press, where the case had attracted a certain level of public interest. The resulting issue was how to determine when comments became excessive, however strong they might be, if they affected an opponent, a judge or a fellow lawyer.", "120. Every lawyer, however well known, was the custodian of the client’s word. When a case came to public attention, it was the lawyer’s responsibility to continue to defend that client, whether by taking any necessary ad hoc proceedings or by adding his own voice to the media storm, as had become the norm. This was no longer a lawyer’s right but a duty attached to his position, whether the story of the case broke some time before any public hearing, as was often the case, or later.", "121. Lawyers were entitled to criticise the court’s ruling and to relay any criticism their clients might wish to make. The lawyer’s comments were then necessarily interpreted and received by the public as partial and subjective. The parallel between the judge’s duty of discretion and the lawyer’s freedom of speech was not convincing. Whilst the word of the judge would be received as objective, the words of the lawyer were taken as the expression of a protest by a party. It was not unusual, therefore, for a judge to be obliged to remain silent, whilst comments by a lawyer, for a party to the proceedings, would in no way disrupt the independence and authority of the justice system.", "122. The third-party interveners observed that, while the French courts had always strictly applied the immunity referred to in section 41 of the 1881 Act to judicial comments alone, they were not unaware that lawyers had to contend with certain developments when their cases attracted media attention. They cited a recent example from a high-profile case where a lawyer had been prosecuted for defaming a lawyer for the opposing party. The Paris tribunal de grande instance had accepted his plea of good faith, even though his comments had been particularly excessive and based only on his personal belief, as “they came from a passionate lawyer who dedicated all of his energy to defending his client and who could not restrict his freedom of expression on the sole ground that he was referring to his case in front of journalists rather than addressing judges” (final judgment of the Seventeenth Division of the Paris tribunal de grande instance of 20 October 2010). The distinction between judicial and extrajudicial expression had therefore become outdated. The word of a lawyer was in fact based on a duty to inform; like journalists, lawyers were also “watchdogs of democracy”.", "123. The third-party interveners submitted, lastly, that there was an obligation of proportionality in such matters both for lawyers and for the State. Lawyers had a very difficult role and this duty of proportionality reflected their duties of sensitivity and moderation, from which they could depart only where this was justified by the defence of their client and by the attacks or pressure they were under. As regards the State, the third-party interveners were of the view that lawyers should normally be granted immunity where their comments, however excessive, were linked to the defence of their client’s interests. Any restriction on their right to express their views should be exceptional, the test being whether or not the comments were detachable from the defence of the client. The margin of freedom of expression for lawyers, which had to remain as broad as that of journalists, should take account of the constraints faced by them and the increased media attention, with a press that was increasingly curious and probing.", "D. The Court’s assessment", "1. General principles", "(a) Freedom of expression", "124. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court since its judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC] no. 69698/01, § 101, ECHR 2007 ‑ V) and restated more recently in Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013), as follows.", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "125. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending in respect of the other defendants (see Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010, and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France, no. 54968/00, § 42, 22 December 2005).", "126. Furthermore, in its judgments in Lingens v. Austria (8 July 1986, § 46, Series A no. 103) and Oberschlick v. Austria (no. 1) (23 May 1991, § 63, Series A no. 204), the Court drew a distinction between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports 1997-I). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky-Laurens and July, cited above, § 55). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks (see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel, cited above, § 37).", "127. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of the interference. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom. The relatively moderate nature of the fines does not suffice to negate the risk of a chilling effect on the exercise of freedom of expression, this being all the more unacceptable in the case of a lawyer who is required to ensure the effective defence of his clients (see Mor, cited above, § 61). Generally speaking, while it is legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999-VI; and Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011).", "(b) Maintaining the authority of the judiciary", "128. Questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In this connection, regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a State governed by the rule of law, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313; Karpetas v. Greece, no. 6086/10, § 68, 30 October 2012; and Di Giovanni v. Italy, no. 51160/06, § 71, 9 July 2013).", "129. The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the resolution of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V, and Prager and Oberschlick, cited above).", "130. What is at stake is the confidence which the courts in a democratic society must inspire not only in the accused, as far as criminal proceedings are concerned (see Kyprianou, cited above, § 172), but also in the public at large (see Kudeshkina v. Russia, no. 29492/05, § 86, 26 February 2009, and Di Giovanni, cited above).", "131. Nevertheless – save in the case of gravely damaging attacks that are essentially unfounded – bearing in mind that judges form part of a fundamental institution of the State, they may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner (see July and SARL Libération, cited above, § 74). When acting in their official capacity they may thus be subject to wider limits of acceptable criticism than ordinary citizens (ibid.).", "(c) The status and freedom of expression of lawyers", "132. The specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. They therefore play a key role in ensuring that the courts, whose mission is fundamental in a State based on the rule of law, enjoy public confidence (see Schöpfer v. Switzerland, 20 May 1998, §§ 29-30, Reports 1998-III; Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II; Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Kyprianou, cited above, § 173; André and Another v. France, no. 18603/03, § 42, 24 July 2008; and Mor, cited above, § 42). However, for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation (see Kyprianou, cited above, § 175).", "133. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct (see Van der Mussele v. Belgium, 23 November 1983, Series A no. 70; Casado Coca v. Spain, 24 February 1994, § 46, Series A no. 285-A; Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI; Veraart v. the Netherlands, no. 10807/04, § 51, 30 November 2006; and Coutant v. France (dec.), no. 17155/03, 24 January 2008). Whilst they are subject to restrictions on their professional conduct, which must be discreet, honest and dignified, they also enjoy exclusive rights and privileges that may vary from one jurisdiction to another – among them, usually, a certain latitude regarding arguments used in court (see Steur, cited above).", "134. Consequently, freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Foglia v. Switzerland, no. 35865/04, § 85, 13 December 2007). Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds (see Amihalachioaie, cited above, §§ 27-28; Foglia, cited above, § 86; and Mor, cited above, § 43). Those bounds lie in the usual restrictions on the conduct of members of the Bar (see Kyprianou, cited above, § 173), as reflected in the ten basic principles enumerated by the CCBE for European lawyers, with their particular reference to “dignity”, “honour” and “integrity” and to “respect for ... the fair administration of justice” (see paragraph 58 above). Such rules contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling the particular case.", "135. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice (see Siałkowska v. Poland, no. 8932/05, § 111, 22 March 2007). It is only in exceptional cases that restriction – even by way of a lenient criminal penalty – of defence counsel’s freedom of expression can be accepted as necessary in a democratic society (see Nikula, cited above, § 55; Kyprianou, cited above, § 174; and Mor, cited above, § 44).", "136. A distinction should, however, be drawn depending on whether the lawyer expresses himself in the courtroom or elsewhere.", "137. As regards, firstly, the issue of “conduct in the courtroom”, since the lawyer’s freedom of expression may raise a question as to his client’s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties (see Nikula, cited above, § 49, and Steur, cited above, § 37). Lawyers have the duty to “defend their clients’ interests zealously” (see Nikula, cited above, § 54), which means that they sometimes have to decide whether or not they should object to or complain of the conduct of the court (see Kyprianou, cited above, § 175). In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a “party” to the proceedings, has to “tolerate very considerable criticism by ... defence counsel”, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities (see Nikula, cited above, §§ 51-52; Foglia, cited above, § 95; and Roland Dumas, cited above, § 48).", "138. Turning now to remarks made outside the courtroom, the Court reiterates that the defence of a client may be pursued by means of an appearance on the television news or a statement in the press, and through such channels the lawyer may inform the public of shortcomings that are likely to undermine pre-trial proceedings (see Mor, cited above, § 59). The Court takes the view, in this connection, that a lawyer cannot be held responsible for everything published in the form of an “interview”, in particular where the press has edited the statements and he or she has denied making certain remarks (see Amihalachioaie, cited above, § 37). In the above-cited Foglia case, it also found that lawyers could not justifiably be held responsible for the actions of the press (see Foglia, cited above, § 97). Similarly, where a case is widely covered in the media on account of the seriousness of the facts and the individuals likely to be implicated, a lawyer cannot be penalised for breaching the secrecy of the judicial investigation where he or she has merely made personal comments on information which is already known to the journalists and which they intend to report, with or without those comments. Nevertheless, when making public statements, a lawyer is not exempted from his duty of prudence in relation to the secrecy of a pending judicial investigation (see Mor, cited above, §§ 55-56).", "139. Lawyers cannot, moreover, make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis (see Karpetas, cited above, § 78; see also A. v. Finland (dec.), no. 44998/98, 8 January 2004), nor can they proffer insults (see Coutant, cited above). In the circumstances in Gouveia Gomes Fernandes and Freitas e Costa (cited above, § 48), the use of a tone that was not insulting but caustic, or even sarcastic, in remarks about judges was regarded as compatible with Article 10. The Court assesses remarks in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack (see Ormanni v. Italy, no. 30278/04, § 73, 17 July 2007, and Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 51) and to ensure that the expressions used have a sufficiently close connection with the facts of the case (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII, and Gouveia Gomes Fernandes and Freitas e Costa, cited above).", "2. Application of those principles in the present case", "140. Turning to the present case, the Court observes that the applicant received a criminal conviction, with an order to pay damages and costs, on account of his remarks concerning the proceedings in the Borrel case, as reproduced in an article in the daily newspaper Le Monde, which contained the text of a letter sent by the applicant and his colleague to the Minister of Justice seeking an administrative investigation, together with statements that he had made to the journalist who wrote the impugned article.", "141. The Court notes at the outset that it is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 of the Convention. That is also the Court’s opinion.", "142. It further observes that the interference was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881, as the applicant acknowledged.", "143. The parties also agreed that the aim of the interference was the protection of the reputation or rights of others. The Court does not see any reason to adopt a different view. While the applicant wished to qualify the point that the proceedings against him also sought to “maintain the authority and impartiality of the judiciary” (see paragraph 99 above), this question relates to the “necessity” of the interference and cannot affect the fact that it pursued at least one of the “legitimate aims” covered by paragraph 2 of Article 10.", "144. It remains therefore to be examined whether the interference was “necessary in a democratic society” and this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient.", "145. The Court notes that, in convicting the applicant, the Court of Appeal took the view that to say that an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness” was in itself a particularly defamatory accusation (see paragraph 47 above). That court added that the applicant’s comments concerning the delay in forwarding the video-cassette and his reference to the handwritten card from the public prosecutor of Djibouti to Judge M., in respect of which the applicant had used the term “connivance”, merely confirmed the defamatory nature of the accusation (ibid.), the “veracity” of the allegations not having been established (see paragraph 48 above) and the applicant’s defence of good faith being rejected (see paragraph 49 above).", "(a) The applicant’s status as a lawyer", "146. The Court observes, firstly, that the remarks in question stemmed both from statements made at the request of the journalist who wrote the article and from the letter to the Minister of Justice. The remarks were made by the applicant in his capacity as a lawyer acting for the civil party and concerned matters relating to the proceedings in the Borrel case.", "147. In this connection the Court notes at the outset that the applicant has invited it to clarify its case-law concerning the exercise of freedom of expression by a lawyer, particularly outside the courtroom, and to afford the greatest possible protection to comments by lawyers (see paragraphs 96, 97 and 102 above). The Government, for their part, while taking the view that their status as officers of the court fundamentally distinguished lawyers from journalists (see paragraph 106 above), identified various situations in which freedom of expression would be “particularly broad”, “wide”, or, on the contrary, subject to “certain limits” (see paragraph 107 above).", "148. The Court would refer the parties to the principles set out in its case-law, particularly with regard to the status and freedom of expression of lawyers (see paragraphs 132-39 above), with emphasis on the need to distinguish between remarks made by lawyers inside and outside the courtroom. Moreover, in view of the specific status of lawyers and their position in the administration of justice (see paragraph 132 above), the Court takes the view, contrary to the argument of the CCBE (see paragraph 116 above), that lawyers cannot be equated with journalists. Their respective positions and roles in judicial proceedings are intrinsically different. Journalists have the task of imparting, in conformity with their duties and responsibilities, information and ideas on all matters of public interest, including those relating to the administration of justice. Lawyers, for their part, are protagonists in the justice system, directly involved in its functioning and in the defence of a party. They cannot therefore be equated with an external witness whose task it is to inform the public.", "149. The applicant argued that his statements, as published in the newspaper Le Monde, served precisely to fulfil his task of defending his client – a task that was for him to determine. However, while it is not in dispute that the impugned remarks fell within the context of the proceedings, they were aimed at investigating judges who had been removed from the proceedings with final effect at the time they were made. The Court therefore fails to see how his statements could have directly contributed to his task of defending his client, since the judicial investigation had by that time been entrusted to another judge who was not the subject of the criticism.", "(b) Contribution to a debate on a matter of public interest", "150. The applicant further relied on his right to inform the public of shortcomings in the handling of ongoing proceedings and to contribute to a debate on a matter of public interest.", "151. On that point, the Court notes, firstly, that the applicant’s remarks were made in the context of the judicial investigation opened following the death of a French judge, Bernard Borrel, who had been seconded to the Djibouti Ministry of Justice as a technical adviser. The Court has already had occasion to note the significant media interest shown in this case from the outset (see July and SARL Libération, cited above, § 67), thus reflecting its prominence in public opinion. Like the applicant, the Court notes, moreover, that the justice system also contributed to informing the public of this case, as the investigating judge handling the case in 2007 asked the public prosecutor to issue a press release, under Article 11, paragraph 3, of the Code of Criminal Procedure, to announce that the suicide theory had been dismissed in favour of one of premeditated murder (see paragraphs 24 and 55 above).", "152. In addition, as the Court has previously found, the public have a legitimate interest in the provision and availability of information regarding criminal proceedings (see July and SARL Libération, cited above, § 66) and remarks concerning the functioning of the judiciary relate to a matter of public interest (see paragraph 125 above). The Court has in fact already been called upon on two occasions, in Floquet and Esménard and July and SARL Libération (both cited above), to examine complaints relating to the Borrel case and to the right to freedom of expression in respect of comments on the handling of the judicial investigation, finding in each of those cases that there was a debate on a matter of public interest.", "153. Accordingly, the Court takes the view that the applicant’s impugned remarks, which also concerned, as in the said judgments in Floquet and Esménard and July and SARL Libération, the functioning of the judiciary and the handling of the Borrel case, fell within the context of a debate on a matter of public interest, thus calling for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities.", "(c) The nature of the impugned remarks", "154. The Court notes that after the applicant’s remarks had been found “particularly defamatory” he had been unable to establish their veracity on the basis of evidence that, according to the Criminal Court, had to “be flawless and complete and relate directly to all the allegations found to be defamatory” (see paragraph 40 above). His defence of good faith was also rejected. On that point, the Criminal Court and the Court of Appeal took the view, in particular, that the attacks on the professional and moral integrity of Judges M. and L.L. clearly overstepped the right of permissible criticism (see paragraphs 40 and 50 above). In addition, while the Criminal Court took the view that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their expression, the Court of Appeal concluded that the decision in the applicant’s favour to discontinue the proceedings brought against him by the two judges did not rule out bad faith on his part. It held that the applicant’s personal animosity and the wish to discredit the judges, in particular Judge M., stemmed from the excessive nature of his comments and from the fact that the article on the Borrel case had been published at the same time as the bringing of proceedings against Judge M. before the Indictment Division in connection with the “Scientology” case (ibid.).", "155. As the Court has already observed, it is necessary to distinguish between statements of fact and value judgments (see paragraph 126 above). The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof; a requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (ibid.). In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Andrushko v. Russia, no. 4260/04, § 53, 14 October 2010; Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 141, 4 March 2014; and Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014). No such chance was afforded in the present case.", "156. The Court takes the view that, in the circumstances of the case, the impugned statements were more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they were made, as they reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation.", "157. It thus remains to be examined whether the “factual basis” for those value judgments was sufficient.", "158. The Court is of the opinion that this condition was fulfilled in the present case. After the case had been withdrawn from Judges M. and L.L. by the Indictments Division of the Paris Court of Appeal (see paragraph 23 above), it became apparent that an important item of evidence in the file, namely a video-cassette recorded during a visit by the judges, accompanied by experts, to the scene of the death, even though it had been referred to in the last decision given by those judges, had not been forwarded with the investigation file to the judge appointed to replace them. That fact was not only established but it was also sufficiently serious to justify the drafting by Judge P. of a report in which he recorded the following: firstly, the video-cassette did not appear in the investigation file and was not registered as an exhibit; and secondly, it had been given to him in an envelope, which showed no sign of having been placed under seal, bearing the name of Judge M. as addressee and also containing a handwritten card with the letter head of the public prosecutor of Djibouti, written by him and addressed to Judge M. (see paragraph 32 above).", "159. Moreover, in addition to the fact that the card showed a certain friendliness on the part of the public prosecutor of Djibouti towards Judge M. (see paragraph 32 above), it accused the civil parties’ lawyers of “orchestrating their manipulation”. The Court would emphasise in this connection that, not only have the Djibouti authorities supported the theory of suicide from the outset, but also a number of representatives of that State have been personally implicated in the context of the judicial investigation conducted in France, as can be seen in particular from the judgment of the International Court of Justice (see paragraphs 63-64 above) and from the proceedings brought on a charge of procuring of false evidence (see paragraph 18 above).", "160. Lastly, it has been established that the applicant acted in his capacity as a lawyer in two high-profile cases in which Judge M. was an investigating judge. In both of them the applicant succeeded in obtaining findings by the appellate courts that there had been shortcomings in the proceedings, leading to the withdrawal of the cases from Judge M. (see paragraphs 22-23 and 26 above). In the context of the first case, known as the “Scientology” case, the applicant additionally secured a ruling that the French State was liable for the malfunctioning of the justice system (see paragraph 30 above).", "161. It further considers that the expressions used by the applicant had a sufficiently close connection with the facts of the case, in addition to the fact that his remarks could not be regarded as misleading or as a gratuitous attack (see paragraph 139 above). It reiterates in this connection that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Similarly, the use of a “caustic tone” in comments aimed at a judge is not incompatible with the provisions of Article 10 of the Convention (see, for example, Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 48).", "(d) The specific circumstances of the case", "(i) The need to take account of the overall background", "162. The Court reiterates that, in the context of Article 10 of the Convention, it must take account of the circumstances and overall background against which the statements in question were made (see, among many other authorities, Lingens, cited above, § 40, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III). In the present case, the background can be explained not only by the conduct of the investigating judges and by the applicant’s relations with one of them, but also by the very specific history of the case, its inter-State dimension and its substantial media coverage. The Court would observe, however, that the Court of Appeal attributed an extensive scope to the impugned remark of the applicant criticising an investigating judge for “conduct which [was] completely at odds with the principles of impartiality and fairness”, finding that this was in itself a particularly defamatory accusation, tantamount to saying that there had been a breach of professional ethics and of the judicial oath on the part of that judge (see paragraph 47 above). That quotation should, however, have been assessed in the light of the specific circumstances of the case, especially as it was in reality not a statement made to the author of the article, but an extract from the letter sent by the applicant and his colleague, Mr L. de Caunes, to the Minister of Justice on 6 September 2000. In addition, at the time when the applicant answered his questions the journalist had already been informed of the letter to the Minister of Justice, not by the applicant himself, but by his own sources, as the Criminal Court acknowledged (see paragraph 40 above). The applicant further argued, without this being in dispute, that the article’s author was solely responsible for the reference to the disciplinary proceedings against Judge M. in the context of the “Scientology” case. In that connection, the Court reiterates that lawyers cannot be held responsible for everything appearing in an “interview” published by the press or for actions by the press.", "163. The Court of Appeal was thus required to examine the impugned remarks with full consideration of both the background to the case and the content of the letter, taken as a whole.", "164. For the same reasons, since the impugned remarks could not be assessed out of context, the Court cannot share the view of the Paris Court of Appeal that the use of the term “connivance” constituted “in itself” a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti (see paragraph 47 above).", "165. As to the question of personal animosity on the part of the applicant towards Judge M., on account of conflicts in the context of the Borrel and “Scientology” cases, the Court takes the view that this aspect was insufficiently relevant and serious to warrant the applicant’s conviction. In any event, since the courts acknowledged the existence of conflicts between the two protagonists, and in view of the particular circumstances of the present case, such a reproach of personal animosity could have been made as much to Judge M. as to the applicant (see, mutatis mutandis, Paturel, cited above, § 45), especially as before filing a complaint against the applicant for complicity in defamation Judge M. had already unsuccessfully filed a complaint against him for false accusation (see paragraph 35 above). The Court of Appeal’s reliance on the applicant’s personal animosity is also at least undermined, if not contradicted, by other factors. Firstly, the remark concerning “conduct which [was] completely at odds with the principles of impartiality and fairness” was directed not only at Judge M., but also at Judge L.L., in respect of whom the applicant was not accused of showing any personal animosity. Furthermore, while the proceedings against the applicant concerned the above-cited extract from the letter to the Minister of Justice, that letter had in reality been signed and sent by two lawyers, the applicant and his colleague, Mr L. de Caunes. In the case of the latter, however, not only has he not been prosecuted for remarks that were attributable as much to him as to the applicant, he has not been accused of showing any animosity towards Judge M. or Judge L.L.", "166. In conclusion, the Court considers that the applicant’s statements could not be reduced to the mere expression of personal animosity, that is to say an antagonistic relationship between two individuals, the applicant and Judge M. The impugned remarks fell, in reality, within a broader context, also involving another lawyer and another judge. In the Court’s opinion, that fact is capable of supporting the idea that the remarks were not part of any personal action on the part of the applicant, out of a desire for vengeance, but rather formed part of a joint professional initiative by two lawyers, on account of facts that were new, established and capable of revealing serious shortcomings in the justice system, involving the two judges who had formerly been conducting the investigation in a case in which the two lawyers’ clients were civil parties.", "167. In addition, while the applicant’s remarks certainly had a negative connotation, it should be pointed out that, notwithstanding their somewhat hostile nature (see E.K. v. Turkey, cited above, §§ 79-80) and seriousness (see Thoma, cited above), the key question in the statements concerned the functioning of a judicial investigation, which was a matter of public interest, thus leaving little room for restrictions on freedom of expression. In addition, a lawyer should be able to draw the public’s attention to potential shortcomings in the justice system; the judiciary may benefit from constructive criticism.", "(ii) Maintaining the authority of the judiciary", "168. The Government relied on the fact that the judicial authorities had no right of reply. It is true that the particular task of the judiciary in society requires judges to observe a duty of discretion (see paragraph 128 above). However, that duty pursues a specific aim, as noted by the third-party interveners: the speech of judges, unlike that of lawyers, is received as the expression of an objective assessment which commits not only the person expressing himself, but also, through him, the entire justice system. Lawyers, for their part, merely speak in their own name and on behalf of their clients, thus also distinguishing them from journalists, whose role in the judicial debate and purpose are intrinsically different. Nevertheless, while it may prove necessary to protect the judiciary against gravely damaging attacks that are essentially unfounded, bearing in mind that judges are prevented from reacting by their duty of discretion (see paragraph 128 above), this cannot have the effect of prohibiting individuals from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system, or of banning any criticism of the latter. In the present case, Judges M. and L.L. were members of the judiciary and were thus both part of a fundamental institution of the State: they were therefore subject to wider limits of acceptable criticism than ordinary citizens and the impugned comments could therefore be directed against them in that capacity (see paragraphs 128 and 131 above).", "169. The Court further finds, contrary to what has been argued by the Government, that the applicant’s remarks were not capable of undermining the proper conduct of the judicial proceedings, in view of the fact that the higher court had withdrawn the case from the two investigating judges concerned by the criticisms. Neither the new investigating judge nor the higher courts were targeted in any way by the impugned remarks.", "170. Nor can it be considered, for the same reasons and taking account of the foregoing, that the applicant’s conviction could serve to maintain the authority of the judiciary. The Court would nevertheless emphasise the importance, in a State governed by the rule of law and in a democratic society, of maintaining the authority of the judiciary. In any event, the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers.", "(iii) The use of available remedies", "171. With regard to the Government’s argument as to the possibility of using available remedies, the Court finds it pertinent but not sufficient in the present case to justify the applicant’s conviction. It first notes that the use of available remedies, on the one hand, and the right to freedom of expression, on the other, do not pursue the same aim and are not interchangeable. That being said, the Court takes the view that the defence of a client by his lawyer must be conducted not in the media, save in very specific circumstances (see paragraph 138 above), but in the courts of competent jurisdiction, and this involves using any available remedies. It notes that in the present case the referral to the Indictments Division of the Paris Court of Appeal patently showed that the initial intention of the applicant and his colleague was to resolve the matter using the available remedies. It was, in reality, only after that remedy had been used that the problem complained of occurred, as recorded by the investigating judge P. in his official report of 1 August 2000 (see paragraph 32 above). At that stage the Indictments Division was no longer in a position to examine such complaints, precisely because it had withdrawn the case from Judges M. and L.L. The Court further notes that, in any event, four and a half years had already elapsed since the opening of the judicial investigation, which has still not been closed to date. It also observes that the civil parties and their lawyers took an active part in the proceedings and, in particular, that they succeeded, according to the judgment of the Versailles Court of Appeal of 28 May 2009, in having a material witness examined in Belgium in spite of a lack of interest in him on the part of the investigating judges M. and L.L. (see paragraph 16 above).", "172. Moreover, the request for an investigation made to the Minister of Justice complaining of these new facts was not a judicial remedy – such as to justify possibly refraining from intervention in the press – but a mere request for an administrative investigation subject to the discretionary decision of the Minister of Justice. The Court notes in this connection that the domestic judges themselves, both at first instance and on appeal, took the view that the letter could not enjoy the immunity afforded to judicial acts, the Criminal Court having found that its content was purely informative (see paragraphs 38 and 46 above). The Court observes that it has not been argued that this request was acted upon and, in addition, it notes that Judges M. and L.L. clearly did not see it as the normal use of a remedy available under domestic law, but as an act justifying the filing of a complaint for false accusation (see paragraph 35 above).", "173. Lastly, the Court finds that neither the Principal Public Prosecutor nor the relevant Bar Council or chairman of the Bar found it necessary to bring disciplinary proceedings against the applicant on account of his statements in the press, although such a possibility was open to them (see Mor, cited above, § 60).", "(iv) Conclusion as to the circumstances of the present case", "174. The Court is of the view that the impugned remarks by the applicant did not constitute gravely damaging and essentially unfounded attacks on the action of the courts, but criticisms levelled at Judges M. and L.L. as part of a debate on a matter of public interest concerning the functioning of the justice system, and in the context of a case which had received wide media coverage from the outset. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient “factual basis”.", "(e) The sanctions imposed", "175. As to the sentences imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Sürek, cited above, § 64; Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004-VI; and Mor, cited above, § 61). In the present case, the Court of Appeal sentenced the applicant to pay a fine of EUR 4,000. This amount corresponds precisely to that fixed by the first-instance court, where the judges had expressly taken into account the applicant’s status as a lawyer to justify their severity and to impose on him “a fine of a sufficiently high amount” (see paragraph 41 above). In addition to ordering the insertion of a notice in the newspaper Le Monde, the court ordered him to pay, jointly with the journalist and the publication director, EUR 7,500 in damages to each of the two judges, together with EUR 4,000 to Judge L.L. in costs. The Court notes, moreover, that the applicant alone was ordered to pay a sum to Judge M. in respect of costs, amounting to EUR 1,000.", "176. The Court reiterates that even when the sanction is the lightest possible, such as a guilty verdict with a discharge in respect of the criminal sentence and an award of only a “token euro” in damages (see Mor, cited above, § 61), it nevertheless constitutes a criminal sanction and, in any event, that fact cannot suffice, in itself, to justify the interference with the applicant’s freedom of expression (see Brasilier, cited above, § 43). The Court has emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom (see, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 114, ECHR 2004 ‑ XI, and Mor, cited above) – a risk that the relatively moderate nature of a fine would not suffice to negate (see Dupuis and Others v. France, no. 1914/02, § 48, 7 June 2007). It should also be noted that imposing a sanction on a lawyer may have repercussions that are direct (disciplinary proceedings) or indirect (in terms, for example, of their image or the confidence placed in them by the public and their clients). The Court would, moreover, reiterate that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings (see paragraph 127 above). The Court observes, however, that in the present case the applicant’s punishment was not confined to a criminal conviction: the sanction imposed on him was not the “lightest possible”, but was, on the contrary, of some significance, and his status as a lawyer was even relied upon to justify greater severity.", "3. Conclusion", "177. In view of the foregoing, the Court finds that the judgment against the applicant for complicity in defamation can be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore “necessary in a democratic society” within the meaning of Article 10 of the Convention.", "178. Accordingly, there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "179. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "180. The applicant claimed 4,270 euros (EUR) in respect of pecuniary damage, corresponding to the amounts he was ordered to pay on account of the judgment against him, and EUR 20,000 in respect of non-pecuniary damage on account of the violation of Articles 6 and 10 of the Convention.", "181. The Government did not comment on those claims before the Grand Chamber.", "182. The Court observes that the applicant was ordered to pay a fine of EUR 4,000, together with the sum of EUR 1,000 in respect of Judge M.’s costs and expenses, in addition to an award of EUR 7,500 in damages to each of the judges to be paid jointly with the other two co-defendants, and EUR 4,000 in respect of Judge L.L.’s costs (see paragraph 46 above). It thus takes the view that there is a sufficient causal link between the alleged pecuniary damage and the violation found under Article 6 and, especially, under Article 10 of the Convention. It is thus appropriate to order, under the head of pecuniary damage, the reimbursement of the sums that the applicant was required to pay, within the limit indicated in his claim, namely EUR 4,270, which corresponds to the amount of the fine, plus taxes and court courts, that was paid to the Treasury.", "183. The Court further finds that the applicant clearly sustained non-pecuniary damage on account of his criminal conviction and, ruling on an equitable basis, it awards him EUR 15,000 on that basis.", "B. Costs and expenses", "184. The applicant claimed EUR 26,718.80 in respect of costs and expenses for the proceedings before the Court.", "185. The Government made no comment on this claim before the Grand Chamber.", "186. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, among many other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, ECHR 2014).", "187. In the present case, taking account of the documents in its possession and the above-mentioned criteria, the Grand Chamber finds it reasonable to award EUR 14,400 on that basis to the applicant.", "C. Default interest", "188. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant, who was born in 1960 and lives in Paris, is a lawyer ( avocat ) and member of the Paris Bar.", "A. Death of Judge Borrel and subsequent proceedings", "10. On 19 October 1995 Mr Bernard Borrel, a judge who had been seconded by France for the year before as a technical adviser to the Djiboutian Minister of Justice, in the context of cooperation agreements between the two States, was found dead 80 kilometres from the city of Djibouti. His half-naked and partially burnt body was lying some 20 metres below a remote road. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide by self-immolation.", "11. On 7 December 1995 a judicial investigation was opened at the Toulouse tribunal de grande instance to determine the cause of death. Bernard Borrel’s body, which was repatriated and interred in Toulouse, underwent an autopsy on 15 February 1996. The report concluded that the death was not suspicious, although the body’s state of decomposition did not permit a precise cause to be established.", "12. On 3 March 1997 Mrs Elisabeth Borrel, the widow of Bernard Borrel and also a judge, disputing the finding of suicide, filed a complaint as a civil party, in her own name and on behalf of her two minor children, against a person or persons unknown for premeditated murder. She appointed the applicant, Mr Morice, to represent her in the proceedings.", "13. On 8 and 23 April 1997 two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown.", "14. In a decision of 30 April 1997, the judicial investigation into the cause of death and the two investigations in respect of premeditated murder were joined.", "15. On 29 October 1997 the Court of Cassation accepted a request by the applicant to withdraw the case from the Toulouse court and it was transferred to the tribunal de grande instance of Paris, where it was assigned on 12 October 1997 to Ms M., assisted from 7 January 1998 by Mr L.L., both investigating judges, who were to conduct the judicial investigation jointly.", "16. On 19 November 1999 a lawyer at the Brussels Bar informed the police that A., a former senior officer and member of the Djiboutian Presidential Guard, who had found asylum in Belgium, had certain revelations to make concerning Judge Borrel. The information thus disclosed was transmitted to the French authorities via Interpol. A judgment of the Versailles Court of Appeal of 28 May 2009 (see paragraph 18 below) records the following sequence of events: Judges M. and L.L. did not reply, owing to the fact that the witness wished to remain anonymous, and the information was not followed up; the witness’s Belgian lawyer thus contacted the applicant, who arranged for the witness to be interviewed by journalists from the daily newspaper Le Figaro and the French TV channel TF1, at the end of December 1999; lastly, it was as a result of the publication and broadcasting of that interview in early January 2000 that Judges M. and L.L. decided to go to Belgium to assist the Belgian investigator in taking evidence from the witness.", "17. On 31 January 2000 Judges M. and L.L. interviewed the witness in Brussels. It was subsequently alleged by A. that he had been pressurised and intimidated by Judge M. to withdraw his testimony, those complaints being expressly made in a letter of 2 February 2000 from his lawyer to the Crown Prosecutor. In addition, the witness accused the public prosecutor of Djibouti of having threatened him to make him recant his statement, and alleged that the head of the Djibouti secret services had ordered the head of the Presidential Guard, Captain I., to draft a statement discrediting him. Captain I. confirmed A’s accusations concerning him.", "18. Proceedings were brought in France against the public prosecutor of Djibouti and the head of the country’s secret services for the procuring of false evidence, and Judge Borrel’s widow and son, the witness A., Captain I., and a French lawyer, A.M., who was implicated, intervened as civil parties. Evidence was taken from Judge M. in her capacity as witness. The public prosecutor and the head of the secret services of Djibouti were sentenced, respectively, to eighteen and twelve months’ imprisonment, and ordered to pay damages to the civil parties, in a judgment of the Versailles Criminal Court of 27 March 2008, before being acquitted by the Versailles Court of Appeal on 28 May 2009.", "19. On 2 February 2000, in the context of the judicial investigation in respect of premeditated murder, three professional unions of judges and prosecutors, namely the Syndicat de la magistrature, the Association professionnelle des magistrats and the Union syndicale des magistrats, applied to be joined to the proceedings as civil parties.", "20. On 16 March 2000 the applicant, acting on behalf of Mrs Borrel, requested, firstly, that evidence be taken from the witness, A., in Belgium, and, secondly, that a visit to the scene of the crime in Djibouti, in the presence of the civil parties, be organised.", "21. In a decision of 17 March 2000, the investigating judges M. and L.L. accepted the request concerning A., finding that a new interview was absolutely necessary. They refused, however, to agree to a site visit, as such a visit had already been made twice, once in 1999 and again one week before the decision in question, as they did not see “how a visit to the site in the presence of the civil party would, at th[at] stage of the proceedings, be helpful for the discovery of the truth”. They added that during their visit to Djibouti a few days before, they had been accompanied by two experts, including the director of the Paris Institute of Forensic Medicine, adding that the scene had been filmed and photographed on that occasion.", "22. The applicant and another lawyer appealed against that decision. They filed their pleadings with the Indictments Division, as did the lawyer acting for the Syndicat de la magistrature, arguing that the last site visit in the presence of an expert could be regarded as a reconstruction from which the civil parties had been excluded, and that the sole aim of the investigation was to demonstrate that the victim had committed suicide. They also requested that the Indictments Division take over the case from the investigating judges and continue the investigation itself.", "23. In a judgment of 21 June 2000, the Indictments Division of the Paris Court of Appeal found that after two site visits in the absence of the civil parties, one of which closely resembled a reconstruction, the need to organise an on-site reconstruction in the presence of the civil parties so that they could exercise their rights was indispensable for the discovery of the truth. Accordingly, it set aside the decision of Judges M. and L.L. on that point. In addition, it withdrew the case from them and appointed a new investigating judge, Judge P., to continue the investigation.", "24. On 19 June 2007 the Paris public prosecutor, further to the request of the investigating judge then handling the case, on the basis of Article 11, paragraph 3, of the Code of Criminal Procedure, issued a statement to clarify publicly that “whilst suicide had once been the preferred theory, the evidence gathered, especially since 2002, now point[ed] to a criminal act”, adding that the experts’ reports had determined that “Bernard Borrel was lying on the ground when liquids were poured over him in a random manner”.", "25. The proceedings are currently still pending.", "B. Facts related to the “Scientology” case", "26. The Minister of Justice, by acts of 29 June and 16 October 2000, referred to the National Legal Service Commission ( Conseil supérieur de la magistrature – “the CSM”), in its capacity as a disciplinary board for judges, certain shortcomings attributable to Judge M. in the judicial investigation into the “Scientology” case for which she was responsible and in which the applicant also represented the civil parties. Judge M. was criticised for not devoting the necessary care and attention to the case file, leaving it practically untouched for five years; for having recourse to a friendly-settlement procedure which went beyond the jurisdiction of an investigating judge; and for not making copies of all the documents in the case file, thus making it impossible to reconstruct the file after its partial disappearance from her chambers. Judge M. requested that the referral to the CSM be declared null and void, particularly on account of the fact that it had been made public by the director of the Minister’s private office at a press conference, even before she had been personally notified of the decision. In parallel, on 18 October 2000, the Indictments Division of the Paris Court of Appeal upheld a request by the applicant for the withdrawal of the “Scientology” case from Judge M.", "27. On 4 July 2000, at a general meeting of judges of the Paris tribunal de grande instance, the issue of the disciplinary proceedings against Judge M. was raised, in particular because they had been announced in the press whereas the judge concerned had not been officially informed and the president of that court had not yet been notified. During that meeting a judge, J.M., stated as follows:", "“We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust.”", "28. The general meeting drafted the following motion, which was adopted unanimously:", "“The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.”", "29. In the context of a magazine interview published in July-August 2000, the chair of the Syndicat de la magistrature, a civil party in the Borrel case, criticised the “lack of impartiality on the part of Judge M. in the Borrel and [L.] cases”, adding that the judges who had signed the motion “could not have been unaware that in two sensitive cases, the Borrel case and the [L.] case, her impartiality was seriously called into question”.", "30. In a judgment of 5 January 2000, the Paris tribunal de grande instance, in a case brought by the applicant as counsel acting for two civil parties, found the State liable for gross negligence on the part of the courts service on account of the disappearance of the so-called “Scientology” file from the office of Judge M. It awarded damages to the complainants.", "31. On 13 December 2001 the CSM dismissed a plea of nullity from Judge M. and, on the merits, while reproaching her for a certain lack of rigour or a failure to keep track of the case sufficiently, did not impose any disciplinary penalty on her.", "C. Criminal proceedings against the applicant", "32. On 1 August 2000 Judge P., who had been appointed to replace Judges M. and L.L., drafted a report in which he noted the following chain of events. In response to the applicant’s request concerning the video ‑ recording made in Djibouti in March 2000 and cited by Judges M. and L.L. in their decision of 17 March 2000, Judge P. replied that it was not in the judicial investigation file and was not registered as an exhibit; on the same day, Judge P. asked Judge M. whether she still had the video-cassette; Judge M. promptly gave him a closed and undated envelope with her name on, showing no sign of having been placed under seal, bearing the address of Judge M. as addressee and that of the public prosecutor of Djibouti as sender; the envelope contained a video-cassette and a handwritten card with the letter head of the public prosecutor of Djibouti, these items then being taken by Judge P. and placed under seal. The public prosecutor’s card addressed to Judge M. read as follows (translated from French).", "“Hi Marie-Paule,", "As agreed, I am sending you the video-cassette of the Goubet site visit. I hope the picture will be clear enough.", "I watched the show Sans aucun doute [Without any doubt] on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation.", "I’ll call you soon.", "Say hello to Roger if he’s back, and also to J.C. [D.].", "Speak to you soon.", "Best wishes,", "DJAMA.”", "33. On 6 September 2000 the applicant and another lawyer, Mr L. de Caunes, wrote a letter to the Minister of Justice to complain of the facts recorded in the report of the investigating judge P. dated 1 August 2000, on account of the “conduct of Judges [M.] and [L.L.], [which was] completely at odds with the principles of impartiality and fairness”. They asked for an “investigation to be carried out by the General Inspectorate of Judicial Services into the numerous shortcomings which [had] been brought to light in the course of the judicial investigation”. They stated that the form and substance of the card addressed by the public prosecutor of Djibouti to Judge M. revealed a complicit intimacy that was surprising and regrettable, as the public prosecutor was directly subordinate to the executive, of which the head was “suspected very openly and very seriously of being the instigator of Bernard Borrel’s murder”.", "34. Furthermore, extracts from that letter were included, together with statements made by the applicant to the journalist, in an article in the newspaper Le Monde published on 7 September and dated Friday 8 September 2000. The article read as follows.", "“THE LAWYERS acting for the widow of Judge Bernard Borrel, who was found dead in Djibouti in 1995 in mysterious circumstances, vigorously criticised Judge [M.], from whom the case was withdrawn last spring, in a letter to the Minister of Justice on Wednesday 6 September. The judge is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.", "The two lawyers, who had not been authorised to go to Djibouti in March for a second site visit, asked on 1 August to consult the video-recording made on that occasion. Judge [P.], who has been handling the case since its withdrawal from [Judges M. and L.L.] on 21 June, told them that the cassette was not in the case file and was not ‘registered in the file as an exhibit’. The judge immediately called his colleague, who gave him the cassette later that day. ‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.", "To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note from Djama [S.], the public prosecutor of Djibouti. ‘Hi Marie-Paule, as agreed I am sending you the video-cassette of the Goubet site visit’ the note reads. ‘I hope the picture will be clear enough. I watched the show Sans aucun doute (Without any doubt) on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger [L.L.] if he’s back, and also to J.-C. [D.] [deputy public prosecutor in Paris]. Speak to you soon. Best wishes, Djama.’", "Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’. They have asked Elisabeth Guigou for an investigation by the General Inspectorate of Judicial Services. The Minister of Justice had not received their letter on Thursday 7 September. Judge [M.] already has disciplinary proceedings pending against her before the National Legal Service Commission (CSM), in particular for the disappearance of documents from the investigation file in the Scientology case (see Le Monde of 3 July).”", "35. Judges M. and L.L. filed a criminal complaint as civil parties against a person or persons unknown for false accusations. On 26 September 2000 the Paris public prosecutor’s office opened a judicial investigation for false accusations. On 5 November 2000 the Court of Cassation appointed an investigating judge in Lille, who, on 15 May 2006, made a discontinuance order, which was upheld by the Investigation Division of the Douai Court of Appeal on 19 June 2007.", "36. In addition, on 12 and 15 October 2000 Judges M. and L.L. filed a criminal complaint as civil parties against the publication director of Le Monde, the journalist who had written the article and the applicant, accusing them of public defamation of a civil servant.", "37. In an order of 2 October 2001, an investigating judge at the Nanterre tribunal de grande instance committed the applicant and the two other defendants to stand trial before the Criminal Court on account of the following passages from the impugned article.", "“The judge [M.] is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.”", "“‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.”", "“To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note.”", "“Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’.”", "38. In a judgment of 4 June 2002, the Nanterre Criminal Court dismissed the pleas of nullity which had been raised by the defendants, in particular on the basis of the immunity provided for by section 41 of the Freedom of the Press Act of 29 July 1881 on judicial proceedings and pleadings filed in court, on account of the fact that the article had merely reiterated the content of the letter to the Minister of Justice. The court took the view, on that point, that the letter in question was not an act of referral to the CSM and that its content had to be regarded as purely informative, with the result that it was not covered by immunity.", "39. The court then observed that the defamatory nature of the comments had not been “meaningfully disputed” and that the applicant stood by the content of his allegations, which he considered to be well founded. Turning then to each of the impugned comments, to ascertain whether the charge of defamation was made out, and to assess the significance and seriousness thereof, the court first noted that “the accusation of impartiality [ sic ] and unfairness proffered against a judge clearly constitute[d] a particularly defamatory allegation, because it [was] tantamount to calling into question her qualities, her moral and professional rigour, and ultimately her capacity to discharge her duties as a judge”. It further took the view that the comments on the failure to forward the video-cassette were also defamatory as they suggested that there had at least been some negligence or a form of obstruction. As to the term “connivance”, the court found that the use of that word clearly and directly suggested that the judges had been collaborating with an official of a foreign country to act in a biased and unfair manner, this being exacerbated by the implication in the article that there was serious evidence of such conduct, because the Minister of Justice had been requested to initiate an investigation.", "40. As to the applicant’s guilt, the court found that it was, in any event, established that the journalist had become privy to the letter sent to the Minister of Justice through his own sources and that he had sought confirmation and comments from the applicant, with whom he had had a telephone conversation. As the applicant had been aware that his statements to the journalist would be made public, the court took the view that he was therefore guilty of complicity in public defamation, unless the court were to accept his offer to prove the veracity of the allegations or his defence of good faith. However, the court dismissed the applicant’s various offers to bring evidence, pointing out that in order to be accepted “the evidence to be adduced must be flawless and complete and relate directly to all the allegations found to be defamatory”. As to the applicant’s good faith, it found that “the highly virulent attacks on the professional and moral integrity of the investigating judges ... clearly overstepped the right of legitimately permissible free criticism” and that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their remarks.", "41. As regards the sanction, the court expressly took into account the applicant’s status as a lawyer and the fact that he could therefore not have been “unaware of the significance and seriousness of totally imprudent comments”, finding it appropriate that “the sanction for such criminal misconduct had to be a fine of a sufficiently high amount”. It sentenced him to a fine of 4,000 euros (EUR), and ordered him to pay, jointly with the other defendants, EUR 7,500 in damages to each of the two judges in question, together with EUR 3,000 in costs. It also ordered the insertion of a notice in the newspaper Le Monde, of which the cost was to be shared between the defendants. An appeal was lodged against the judgment by the applicant, his co-defendants, the two judges with civil-party status and the public prosecutor.", "42. In a judgment of 28 May 2003, the Versailles Court of Appeal found that the summonses issued on the basis of L.L.’s complaint were null and void and that his action was time-barred, and it acquitted the three defendants under that head. It further upheld the convictions of the three defendants in respect of Judge M.’s complaint, together with the amount of the fine imposed on the applicant and the damages awarded to the judge, to whom it also awarded EUR 5,000 in court costs, in addition to the order to publish a notice in the daily newspaper Le Monde. Both the applicant and Judge L.L. appealed on points of law.", "43. On 12 October 2004 the Court of Cassation quashed the judgment in its entirety and remitted the case to the Rouen Court of Appeal.", "44. On 25 April 2005 the Rouen Court of Appeal took note of the fact that the three defendants waived any claim of nullity in respect of the summonses issued on the basis of Judge L.L.’s complaint and it adjourned the proceedings on the merits.", "45. On 8 June 2005 the President of the Criminal Division of the Court of Cassation dismissed applications from the three defendants and the civil parties for the immediate examination of their appeals on points of law.", "46. In a judgment of 16 July 2008, after a number of adjournments and the holding of a hearing on 30 April 2008, the Rouen Court of Appeal upheld the dismissal by the Nanterre tribunal de grande instance of the immunity objection, and also upheld the defendants’ convictions for complicity in the public defamation of civil servants in the applicant’s case. It ordered the applicant to pay a fine of EUR 4,000 and upheld the award of EUR 7,500 in damages to each of the judges, to be paid by the defendants jointly, together with the order to publish a notice in the daily newspaper Le Monde. As regards costs, it ordered the three defendants to pay EUR 4,000 to Judge L.L. and the applicant alone to pay EUR 1,000 to Judge M.", "47. In its reasoning, the Court of Appeal firstly took the view that to say that in handling a case an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness”, or in other words conduct incompatible with professional ethics and her judicial oath, was a particularly defamatory accusation as it was tantamount to accusing her of lacking integrity and of deliberately failing in her duties as a judge, thus questioning her capacity to discharge those duties. It further found that the applicant’s comments concerning the delay in forwarding the video-cassette amounted to accusing the judges of negligence in the handling of the case, thereby discrediting the professional competence of the judges and implying that the latter had deliberately kept hold of the cassette after the case was withdrawn from them, with the intention, at least, of causing obstruction. Allegedly, it was only because the lawyers had raised the matter with Judge P., followed by that judge’s request to Judge M., that the item of evidence had finally been obtained on 1 August 2000. The Court of Appeal added that such assertions, attributing to those judges a deliberate failure to perform the duties inherent in their office and a lack of integrity in the fulfilment of their obligations, constituted factual accusations which impugned their honour and reputation. It found this to be all the more true as the applicant, referring to the handwritten card from the public prosecutor of Djibouti to Judge M., had emphasised this atmosphere of suspicion and the negligent conduct of the judges by stating that this document proved the extent of the “connivance” between them. The court noted, on that point, that the word “connivance” represented in itself a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti. It merely served to confirm the defamatory nature of the previous comments, especially as the article added that the applicant had asked the Minister of Justice for an inspection by the General Inspectorate of Judicial Services.", "48. The Court of Appeal thus concluded that the comments were defamatory and that the veracity of the defamatory allegations had not been established. It took the view, on that point, that there was no evidence that Judge L.L. had been in possession of the video-cassette or that he had even been informed of its arrival, so he was not concerned by the delay in forwarding it; that the judgment of the Indictments Division of 21 June 2000, withdrawing the case from the two judges, merely expressed disapproval of the judges’ refusal to hold a reconstruction in the presence of the civil parties; that it had not been established that the video-cassette had reached Judge M. before the case was withdrawn from her or that it had been in her possession when the investigation was transferred to Judge P.; that there was nothing to suggest that Judge M. had acted with obstructive intent or that she had been unfair in her handling of the cassette; that the handwritten card addressed to Judge M. from the public prosecutor of Djibouti did not prove that there was any connivance between them, as friendly greetings and the use of the familiar form “ tu ” in contacts between legal officials did not necessarily reflect a complicit intimacy, and the possibility that they shared the same opinion did not prove any complicity or connivance on the part of the French judges such as to undermine the judicial investigation procedure, regardless of the conduct of the Djibouti public prosecutor in this case; that the letter from the lawyer representing witness A. addressed to the Crown Prosecutor in Belgium, complaining that Judge M. had put pressure on his client, was not sufficiently conclusive in itself to show that Judge M. had accepted the theory of suicide or that she was hindering the establishment of the truth, even though Judge M. had acknowledged that she had told the Belgian police that A. was an unreliable witness; and, lastly, that the numerous press articles carried no evidential weight as regards the conduct and attitude of the judges in their handling of the case.", "49. As regards the applicant’s defence of good faith, the Court of Appeal to which the case had been remitted noted that he had referred to the duties that were inherent in his profession and the results obtained in the case since the withdrawal of the case from Judges M. and L.L., as shown by the public prosecutor’s press statement of 19 June 2007; he had further relied on the judgment of the Douai Court of Appeal, also of 19 June 2007, upholding the decision to discontinue the proceedings started by the judges’ complaint alleging false accusation and on the conviction of the Djibouti public prosecutor by the Criminal Court of Versailles on 27 March 2008 for procuring a person to give false evidence.", "50. It observed that at the time the offence in question was committed, on 7 September 2000, the applicant had secured the withdrawal of the case from Judges M. and L.L. and that Judge P. had been in possession of the video-cassette since 1 August 2000. It took the view that the applicant had engaged in highly virulent attacks on the professional and moral integrity of the two judges, in comments that seriously questioned their impartiality and intellectual honesty, clearly overstepping the right to free criticism and no longer being of any procedural relevance. The Court of Appeal further found: that the decision in the applicant’s favour to discontinue the proceedings for false accusation initiated against him as a result of the judges’ complaint was not incompatible with his bad faith; that the excessive nature of the comments made by the applicant revealed the intensity of the conflict between him and the two judges, in particular Judge M., and were tantamount to an ex post facto settling of scores, as shown by the publication of the article on 7 September 2000, after the Indictments Division of the Paris Court of Appeal had received, on 5 September, the file in the “Scientology” case, in which Judge M. was suspected of being responsible for the disappearance of evidence; and that this showed, on the part of the applicant, personal animosity and an intention to discredit those judges, in particular Judge M., with whom he had been in conflict in various cases, thus ruling out any good faith on his part.", "51. The applicant, his two co-defendants and Judge M. all lodged an appeal on points of law against that judgment. In his pleadings, the applicant relied, as his first ground of appeal, on Article 10 of the Convention and the immunity provided for in section 41 of the Freedom of the Press Act, arguing that this provision sought to safeguard defence rights and protected lawyers in respect of any oral or written comments made in the context of any type of judicial proceedings, in particular of a disciplinary nature. As his second ground of appeal, he relied on Article 10 of the Convention, asserting that: the impugned comments concerned a case that had been receiving media coverage for some time, involving the suspicious circumstances in which a French judge seconded to Djibouti had been found dead “from suicide” and the questionable manner in which the judicial investigation had been conducted, with a clear bias against the civil party’s theory of premeditated murder; having regard to the importance of the subject of general interest in the context of which the comments had been made, the Court of Appeal was not entitled to find that he had overstepped the bounds of his freedom of expression; the Court of Appeal had not examined his good faith in the light of the comments that had been published in Le Monde, but in relation to the content of the letter to the Minister of Justice and it was not entitled to make any assessment concerning the judges’ conduct criticised therein; unless all lawyers were to be banned from speaking about pending cases, no personal animosity could be inferred from the mere fact that he had had a disagreement with one of the judges in the context of another set of proceedings; good faith was not subject to the current situation or to the fact that the issue had been “made good” by the withdrawal of the case from the judges, the lack of necessity of the comments not being incompatible with good faith; lastly, opinions expressed regarding the functioning of a fundamental institution of the State, as was the case regarding the handling of a criminal investigation, were not subject to a duty of prudence or limited to theoretical and abstract criticism, but could be personal where they had a sufficient factual basis.", "52. The appeals were initially supposed to be heard by a reduced bench of Section I of the Criminal Division of the Court of Cassation, as shown by the reporting judge’s report of 21 July 2009, the Court of Cassation’s online workflow for the case, and the three notices to parties issued on 15 September, and 14 and 27 October 2009, respectively, the last two of those documents having been sent after the date of the hearing. Consequently, Mr J.M. (see paragraph 27 above), who had become a judge at the Court of Cassation, assigned to the Criminal Division, and who was neither the Division President, nor the senior judge ( doyen ), nor the reporting judge, was not supposed to sit in that case.", "53. In a judgment of 10 November 2009, the Court of Cassation, in a formation eventually consisting of ten judges, including Mr J.M., dismissed the appeals on points of law. As regards the grounds raised by the applicant, it found that the objection of jurisdictional immunity had been validly rejected, as the fact of making public the letter to the Minister of Justice did not constitute an act of referral to the CSM and was not part of any proceedings involving the exercise of defence rights before a court of law. As to the various arguments expounded under the applicant’s second ground of appeal, it took the view that the Court of Appeal had justified its decision, finding as follows:", "“[W]hile everyone has the right to freedom of expression and while the public has a legitimate interest in receiving information on criminal proceedings and on the functioning of the courts, the exercise of those freedoms carries with it duties and responsibilities and may be subject, as in the present case where the admissible limits of freedom of expression in criticising the action of judges have been overstepped, to such restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation and rights of others.”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. Applicable domestic law on defamation", "54. The relevant provisions of the Freedom of the Press Act of 29 July 1881 read as follows.", "Section 23", "“Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, has directly and successfully incited the perpetrator or perpetrators to commit a serious crime or major offence [ crime ou délit ], and if the incitement has been acted upon, shall be punished as an accessory to the said offence.", "This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime [ crime ] under Article 2 of the Criminal Code.”", "Section 29", "“The making of any factual allegation or imputation that damages the honour or reputation of the person or body to whom the fact in question is attributed shall constitute defamation [ diffamation ]. The direct publication or reproduction of such an allegation or imputation shall be punishable, even where it is expressed in sceptical terms or made about a person or body that is not expressly named but is identifiable by the terms of the offending speeches, shouts, threats, written or printed matter, placards or posters.", "The use of abusive or contemptuous language or invective not containing an allegation of any fact shall constitute an insult [ injure ].”", "Section 31", "“Where defamation is committed by the same means by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, ..., the offence shall be punishable by the same penalty. ...”", "Section 41", "“... No proceedings for defamation, insult or abuse shall arise from any faithful record of judicial proceedings drawn up in good faith, or from any statements made or pleadings filed in a court of law.", "Courts examining the merits of the case may nevertheless order the exclusion of the insulting, contemptuous or defamatory statements, and award damages against the person concerned.", "Defamatory allegations that are unrelated to the case may, however, give rise to criminal prosecution or civil actions by the parties, where such actions have been left open to them by the courts, and, in any event, to civil action by third parties.”", "Section 55", "“Where the defendant wishes to be allowed to prove the veracity of the defamatory allegations, in accordance with section 35 hereof, he shall, within ten days from the service of the summons, notify the public prosecutor or the complainant, at the address for service designated thereby, depending on whether the proceedings have been initiated by the former or the latter, of:", "(1) The allegations as given and described in the summons of which he seeks to prove the veracity;", "(2) Copies of the documents;", "(3) The names, occupations and addresses of the witnesses he intends to call for the said purpose.", "The said notice shall contain the choice of the address for service in the proceedings before the criminal court, and all requirements shall be met on pain of forfeiting the right to bring evidence.”", "B. Code of Criminal Procedure", "55. Article 11 of the Code of Criminal Procedure provides as follows:", "Article 11", "“Except where the law provides otherwise and without prejudice to the rights of the defence, proceedings in the course of the preliminary and judicial investigations shall be conducted in secret.", "Any person contributing to such proceedings shall be bound by a duty of professional secrecy under the conditions and subject to the penalties set out in Articles 226-13 and 226-14 of the Criminal Code.", "However, in order to prevent the dissemination of incomplete or inaccurate information, or to put an end to a breach of the peace, the public prosecutor may, of his own motion or at the request of the judicial authority responsible for pre-trial investigation or the parties, make public any objective elements from the proceedings that do not convey any judgment as to the merits of the charges brought against the individuals concerned.”", "C. Exercise of the legal profession", "56. Recommendation Rec(2000)21 of the Council of Europe’s Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) states as follows.", "“ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the rule of law, in which lawyers take part, in particular in the role of defending individual freedoms;", "Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter or for any reason;", "...", "Principle I – General Principles on the freedom of exercise of the profession of lawyer", "1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ...”", "57. The Basic Principles on the Role of Lawyers (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana, Cuba, from 27 August to 7 September 1990) state, in particular:", "“16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.", "...", "22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.”", "58. The Council of Bars and Law Societies of Europe (CCBE) has adopted two founding texts: the Code of Conduct for European Lawyers, which dates back to 28 October 1988 and has undergone a number of amendments, and the Charter of Core Principles of the European Legal Profession, which was adopted on 24 November 2006. The Charter, which is not conceived as a code of conduct, contains a list of ten core principles common to the national and international rules regulating the legal profession.", "“(a) the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case;", "(b) the right and duty of the lawyer to keep clients’ matters confidential and to respect professional secrecy;", "(c) avoidance of conflicts of interest, whether between different clients or between the client and the lawyer;", "(d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer;", "(e) loyalty to the client;", "(f) fair treatment of clients in relation to fees;", "(g) the lawyer’s professional competence;", "(h) respect towards professional colleagues;", "(i) respect for the rule of law and the fair administration of justice; and", "(j) the self-regulation of the legal profession.”", "59. Lastly, there is a practical guide to the international principles concerning the independence and responsibility of judges, lawyers and prosecutors, produced by the International Commission of Jurists (initially in 2004, the most recent version being issued on 22 July 2009), which contains many significant and relevant international documents.", "D. Relations between judges and lawyers", "60. The relevant passages of Opinion no. (2013) 16 on the relations between judges and lawyers, adopted by the Consultative Council of European Judges (CCJE) on 13-15 November 2013, read as follows.", "“6. Within the framework of their professional obligation to defend the rights and interests of their clients, lawyers must also play an essential role in the fair administration of justice. Paragraph 6 of the Commentary on the Charter of Core Principles of the European Legal Profession of the CCBE defines the lawyer’s role as follows: ‘The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves his or her own client’s interests and protects the client’s rights, also fulfils the functions of the lawyer in Society – which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognised principles of civil, public or criminal law and with due account of rights and interests, to further the development of the law, and to defend liberty, justice and the rule of law’. As it is stated in paragraph 1.1 of the Code of Conduct for European Lawyers of the CCBE, respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. The UN Basic Principles on the Role of Lawyers state that adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession. Principle 12 stipulates that lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.", "7. Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice.", "The CCJE refers to Recommendation CM/Rec (2010)12, paragraph 7, which states that the independence of judges should be guaranteed at the highest possible legal level. The independence of lawyers should be guaranteed in the same way.", "...", "9. Two areas of relations between judges and lawyers may be distinguished:", "– on the one hand, the relations between judges and lawyers which stem from the procedural principles and rules of each state and which will have a direct impact on the efficiency and quality of judicial proceedings. In the conclusions and recommendations set out in its Opinion No. 11 (2008) on the quality of judicial decisions, the CCJE pointed out that the standard of quality of judicial decisions will clearly be the result of interactions between the numerous actors in the judicial system;", "– on the other hand, the relations which result from the professional conduct of judges and lawyers and which require mutual respect for the roles played by each side and a constructive dialogue between judges and lawyers.", "...", "19. Judges and lawyers each have their own set of ethical principles. However, several ethical principles are common to both judges and lawyers, e.g. compliance with the law, professional secrecy, integrity and dignity, respect for litigants, competence, fairness and mutual respect.", "20. The ethical principles of judges and lawyers should also concern themselves with the relations between the two professions.", "...", "With regard to lawyers, paragraphs 4.1, 4.2, 4.3 and 4.4 of the CCBE Code of Conduct for European Lawyers express the following principles: a lawyer who appears, or takes part in a case, before a court or tribunal must comply with the rules of conduct applied before that court or tribunal. A lawyer must always have due regard for the fair conduct of the proceedings. A lawyer shall, while maintaining due respect and courtesy towards the court, defend the interests of the client honourably and fearlessly without regard to the lawyer’s own interests or to any consequences to him- or herself or to any other person. A lawyer shall never knowingly give false or misleading information to the court.", "21. The CCJE considers that the relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-à-vis each other.", "The CCJE accordingly considers it necessary to develop dialogues and exchanges between judges and lawyers at a national and European institutional level on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account. In this regard, the CCJE encourages the identification of common ethical principles, such as the duty of independence, the duty to sustain the rule of law at all times, co-operation to ensure a fair and swift conduct of the proceedings and permanent professional training. Professional associations and independent governing bodies of both judges and lawyers should be responsible for this process.", "...", "24. Relations between judges and lawyers should always preserve the court’s impartiality and image of impartiality. Judges and lawyers should be fully conscious of this, and adequate procedural and ethical rules should safeguard this impartiality.", "25. Both judges and lawyers enjoy freedom of expression under Article 10 of the Convention.", "Judges are, however, required to preserve the confidentiality of the court’s deliberations and their impartiality, which implies, inter alia, that they must refrain from commenting on proceedings and on the work of lawyers.", "The freedom of expression of lawyers also has its limits, in order to maintain, as is provided for in Article 10, paragraph 2 of the Convention, the authority and impartiality of the judiciary. Respect towards professional colleagues, respect for the rule of law and the fair administration of justice – the principles (h) and (i) of the Charter of Core Principles of the European Legal Profession of the CCBE – require abstention from abusive criticism of colleagues, of individual judges and of court procedures and decisions.”", "E. The decriminalisation of defamation", "61. Recommendation 1814 (2007) of the Parliamentary Assembly of the Council of Europe, “Towards decriminalisation of defamation”, states, inter alia, as follows.", "“1. The Parliamentary Assembly, referring to its Resolution 1577 (2007) entitled ‘Towards decriminalisation of defamation’, calls on the Committee of Ministers to urge all member states to review their defamation laws and, where necessary, make amendments in order to bring them into line with the case law of the European Court of Human Rights, with a view to removing any risk of abuse or unjustified prosecutions;", "2. The Assembly urges the Committee of Ministers to instruct the competent intergovernmental committee, the Steering Committee on the Media and New Communication Services (CDMC) to prepare, following its considerable amount of work on this question and in the light of the Court’s case law, a draft recommendation to member states laying down detailed rules on defamation with a view to eradicating abusive recourse to criminal proceedings.", "...”", "62. The response of the Committee of Ministers, adopted at the 1,029th meeting of the Ministers’ Deputies (11 June 2008), reads as follows.", "“1. The Committee of Ministers has studied Parliamentary Assembly Recommendation 1814 (2007) entitled ‘Towards decriminalisation of defamation’ with great attention. It has communicated the recommendation to the governments of member states as well as to the Steering Committee on the Media and New Communication Services (CDMC), the European Committee on Crime Problems (CDPC), the Steering Committee for Human Rights (CDDH) and the Council of Europe Commissioner for Human Rights, for information and possible comments. The comments received are contained in the appendix.", "2. By decision of 24 November 2004, the Committee of Ministers instructed the Steering Committee on Mass Media (CDMM), which subsequently became the Steering Committee on the Media and New Communication Services (CDMC), inter alia, to look into ‘the alignment of laws on defamation with the relevant case law of the European Court of Human Rights, including the issue of decriminalisation of defamation’. It took note of the reply received in September 2006 and of the fact that the CDMC considered it desirable that member states should take a proactive approach in respect of defamation by examining, even in the absence of judgments of the European Court of Human Rights concerning them directly, domestic legislation against the standards developed by the Court and, where appropriate, aligning criminal, administrative and civil legislation with those standards. In the above-mentioned document, the CDMC also considered that steps should be taken to ensure that the application in practice of laws on defamation fully complies with those standards.", "3. The Committee of Ministers endorses this view, as well as the Parliamentary Assembly’s call on member states to take such measures, with a view to removing all risk of abuse or unjustified prosecutions.", "4. Bearing in mind the role of the European Court of Human Rights in developing general principles on defamation through its case law and its power to adjudicate claims of violations of Article 10 in specific cases, the Committee of Ministers does not consider it advisable at this point in time to develop separate detailed rules on defamation for member states.", "5. Finally, the Committee of Ministers considers that there is no need at present to revise its Recommendation No. R (97) 20 on hate speech or to prepare guidelines on this subject. More efforts could instead be made by member states to give the recommendation more visibility and to make better use of it.”", "F. Judgment of the International Court of Justice (ICJ) of 4 June 2008 in the case of Djibouti v. France", "63. In its judgment of 4 June 2008 in the case concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), the ICJ noted that it was not its task to determine the facts and establish responsibilities in the Borrel case and, in particular, the circumstances in which Bernard Borrel had met his death, but added that the dispute between the two States had originated in that case, as a result of the opening of a number of judicial proceedings, in France and in Djibouti, and the resort to bilateral treaty mechanisms for mutual assistance between the parties. The ICJ observed in particular that, although the subject of the dispute was described in Djibouti’s application as the transmission by the French authorities of the Borrel case file to Djibouti, taken as a whole the application had a wider scope, which included the summonses sent to the Djiboutian President and those sent to two other Djiboutian officials, together with the arrest warrants subsequently issued against the latter.", "64. The ICJ found, in particular, that the decision by the French investigating judge to refuse the request for mutual assistance had been justified by the fact that the transmission of the Borrel case file was considered to be “contrary to the essential interests of France”, in that the file contained declassified “defence secret” documents, together with information and witness statements in respect of another case in progress. It took the view that those reasons fell within the scope of Article 2 (c) of the Convention on Mutual Assistance in Criminal Matters, which allowed a requested State to refuse to execute letters rogatory if it considered that such assistance would be likely to prejudice the sovereignty, the security, the ordre public or other essential interests of the nation. The ICJ further decided not to order the transmission of the Borrel file with certain pages removed, as Djibouti had requested in the alternative. It held, however, that France had failed in its obligation to give reasons for its refusal to execute the letter rogatory, while rejecting Djibouti’s other submissions concerning the summonses addressed to the President and the two other senior Djiboutian officials.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "65. The applicant claimed that, before the Court of Cassation, his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of a judge who had previously and publicly expressed his support for one of the civil parties, Judge M. He relied on Article 6 § 1 of the Convention, of which the relevant part reads as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "A. The Chamber judgment", "66. After noting that the applicant had not been in a position to request the judge’s withdrawal, as he had not been informed before the hearing of the change in the composition of the bench that was to examine his appeal on points of law and that the procedure was mainly written, the Chamber examined the complaint in terms of objective impartiality. It noted that Judge J.M., one of the judges who had sat on the bench of the Criminal Division of the Court of Cassation ruling on an appeal from Judge M. and from the applicant stemming from a dispute between them, had, nine years earlier, publicly expressed his support for and trust in Judge M. in connection with another case in which she had been the investigating judge and the applicant had been acting for a civil party. Having regard to the facts, there was clear opposition between the applicant and Judge M., both in the case for which she had received the support of Judge J.M. and in the case in which J.M. was sitting as a judge of the Court of Cassation. Moreover, J.M.’s support had been expressed in an official and quite general context, at the general meeting of the judges of the Paris tribunal de grande instance. The Chamber found that there had been a violation of Article 6 § 1, as serious doubts could be raised as to the impartiality of the Court of Cassation and the applicant’s fears in that connection could be regarded as objectively justified.", "B. The parties’ submissions before the Grand Chamber", "1. The applicant", "67. The applicant recognised that it was not established that Judge J.M. had displayed any personal bias against him, but argued that regardless of his personal conduct, his very presence on the bench created a situation which rendered his fears objectively justified and legitimate. In his submission, the fact that J.M. had sat on the bench of the Criminal Division of the Court of Cassation sufficed in itself to show that there had been a violation of Article 6 § 1 of the Convention. Judge J.M. had in the past expressed his support for Judge M., when the latter was conducting the judicial investigation in the “Scientology” case, in response to criticisms of her professional conduct from the civil parties, whose representatives included the applicant, and by the public prosecutor. The applicant pointed out that Judge M. had ultimately been taken off the case at his request and that on 5 January 2000 the French State had been found liable for failings in the public justice system.", "68. He argued that he had not been in a position to seek the withdrawal of Judge J.M., as he had not known, and could not reasonably have known, that this judge was going to sit in his case: the report of the reporting judge, the online workflow for the case and the notices to the lawyers had all given the same information, namely that the Criminal Division was to sit as a reduced bench. The reduced bench comprised the President of the Division, the senior judge ( doyen ) and the reporting judge, and as Judge J.M. occupied none of those positions he could not have been expected to sit.", "69. On the merits, the applicant did not claim that Judge J.M. had displayed any personal bias against him and was not calling into question that judge’s right to freedom of expression. He complained merely of Judge J.M.’s presence on the bench, which in his view rendered his fears of a lack of impartiality objectively justified and legitimate. In view of the support expressed by J.M. in favour of Judge M. in the context of another high-profile case with the same protagonists, there was serious doubt as to the impartiality of the Criminal Division and his fears in that connection could be regarded as objectively justified.", "2. The Government", "70. The Government observed that there was no question of any lack of subjective impartiality on the part of Judge J.M. and that it was therefore necessary to determine whether the circumstances of the case were such as to raise serious doubts regarding the Court of Cassation’s objective impartiality. Referring to the effect of the statement made in July 2000 by Judge J.M., who at the time had been serving on the Paris tribunal de grande instance, they pointed out that the statement, made many years before the hearing of the Criminal Division, concerned a different case from the present one and that the terms used reflected a personal position which related only to the conditions in which disciplinary proceedings against a fellow judge had become known. The Government concluded that those remarks, which were limited in scope and had been made a long time before, were not sufficient to establish that, in his capacity as judge of the Court of Cassation, J.M. lacked objective impartiality.", "71. The Government further stated that appeals on points of law were extraordinary remedies and that the Court of Cassation’s oversight was restricted to compliance with the law. Moreover, it was an enlarged bench of the Criminal Division, comprising ten judges, that had considered the case.", "72. The Government accordingly argued that Article 6 § 1 of the Convention had not been breached.", "C. The Court’s assessment", "1. General principles", "73. The Court reiterates that impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-XIII, and Micallef v. Malta [GC], no. 17056/06, § 93, ECHR 2009).", "74. As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see Kyprianou, § 119, and Micallef, § 94, both cited above). The personal impartiality of a judge must be presumed until there is proof to the contrary (see Hauschildt v. Denmark, 24 May 1989, § 47, Series A no. 154). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86).", "75. In the vast majority of cases raising impartiality issues the Court has focused on the objective test (see Micallef, cited above, § 95). However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal conviction (subjective test) (see Kyprianou, cited above, § 119). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports of Judgments and Decisions 1996-III).", "76. As to the objective test, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Micallef, cited above, § 96).", "77. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings (ibid., § 97). It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (see Pullar, cited above, § 38).", "78. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII, and Micallef, cited above, § 98).", "2. Application of those principles in the present case", "79. In the present case, the fear of a lack of impartiality lay in the fact that Judge J.M., who sat on the Court of Cassation bench which adopted the judgment of 10 December 2009, had expressed his support for Judge M. nine years earlier, in the context of disciplinary proceedings that had been brought against her on account of her conduct in the “Scientology” case. Speaking as a judge and a colleague in the same court, in the course of a general meeting of judges of the Paris tribunal de grande instance on 4 July 2000, at which he had subsequently voted in favour of the motion of support for Judge M., J.M. had stated: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust” (see paragraphs 27-28 above).", "80. The Grand Chamber notes at the outset that the applicant acknowledged in his observations that it was not established that Judge J.M. had displayed any personal bias against him. He argued merely that regardless of his personal conduct, the very presence of J.M. on the bench created a situation which rendered his fears objectively justified and legitimate (see paragraph 67 above).", "81. In the Court’s view, the case must therefore be examined from the perspective of the objective impartiality test, and more specifically it must address the question whether the applicant’s doubts, stemming from the specific situation, may be regarded as objectively justified in the circumstances of the case.", "82. Accordingly, the Court firstly takes the view that the language used by Judge J.M. in support of a fellow judge, Judge M., who was precisely responsible for the bringing of criminal proceedings against the applicant in the case now in issue, was capable of raising doubts in the defendant’s mind as to the impartiality of the “tribunal” hearing his case.", "83. Admittedly, the Government argued in their observations, among other things, that the remarks by J.M. were not sufficient to establish a lack of objective impartiality on his part, as they had been made a long time before and the words used reflected a personal position which concerned only the conditions in which the information regarding the bringing of disciplinary proceedings against a colleague of the same court had been forthcoming.", "84. The Court takes the view, however, that the very singular context of the case cannot be overlooked. It would firstly point out that the case concerned a lawyer and a judge, who had been serving in that capacity in connection with two judicial investigations in particularly high-profile cases: the Borrel case, in the context of which the applicant’s impugned remarks had been made, and the “Scientology” case, which had given rise to the remarks by J.M. It further notes, like the Chamber, that Judge M. was already conducting the investigation in the Borrel case, with its significant media coverage and political repercussions, when J.M. publicly expressed his support for her in the context of the “Scientology” case (see also paragraph 29 above). As emphasised by the Chamber, J.M. had then expressed his view in an official setting, at the general meeting of judges of the Paris tribunal de grande instance.", "85. The Court further observes that the applicant, who in both cases was the lawyer acting for civil parties who criticised the work of Judge M., was subsequently convicted on the basis of a complaint by the latter: accordingly, the professional conflict took on the appearance of a personal conflict, as Judge M. had applied to the domestic courts seeking redress for damage stemming from an offence that she accused the applicant of having committed.", "86. The Court would further emphasise, on that point, that the judgment of the Court of Appeal to which the case had been remitted itself expressly established a connection between the applicant’s remarks in the proceedings in question and the “Scientology” case, concluding that this suggested, on the part of the applicant, an “ ex post facto settling of scores” and personal animosity towards Judge M., “with whom he had been in conflict in various cases” (see paragraph 50 above).", "87. It was precisely that judgment of the Court of Appeal which the applicant appealed against on points of law and which was examined by the bench of the Criminal Division of the Court of Cassation on which Judge J.M. sat. The Court does not agree with the Government’s argument to the effect that this situation does not raise any difficulty, since an appeal on points of law is an extraordinary remedy and the review by the Court of Cassation is limited solely to the observance of the law.", "88. In its case-law the Court has emphasised the crucial role of cassation proceedings, which form a special stage of the criminal proceedings with potentially decisive consequences for the accused, as in the present case, because if the case had been quashed it could have been remitted to a different court of appeal for a fresh examination of both the facts and the law. As the Court has stated on many occasions, Article 6 § 1 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, but a State which does institute such courts is required to ensure that persons having access to the law enjoy before such courts the fundamental guarantees in Article 6 (see, among other authorities, Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11; Omar v. France, 29 July 1998, § 41, Reports 1998-V; Guérin v. France, 29 July 1998, § 44, Reports 1998-V; and Louis v. France, no. 44301/02, § 27, 14 November 2006), and this unquestionably includes the requirement that the court must be impartial.", "89. Lastly, the Court takes the view that the Government’s argument to the effect that J.M. was sitting on an enlarged bench comprising ten judges is not decisive for the objective-impartiality issue under Article 6 § 1 of the Convention. In view of the secrecy of the deliberations, it is impossible to ascertain J.M.’s actual influence on that occasion. Therefore, in the context thus described (see paragraphs 84-86 above), the impartiality of that court could have been open to genuine doubt.", "90. Furthermore, the applicant had not been informed that Judge J.M. would be sitting on the bench and had no reason to believe that he would do so. The Court notes that the applicant had, by contrast, been notified that the case would be examined by a reduced bench of the Criminal Division of the Court of Cassation, as is confirmed by the reporting judge’s report, the Court of Cassation’s online workflow for the case and three notices to parties, including two that were served after the date of the hearing (see paragraph 52 above). The applicant thus had no opportunity to challenge J.M.’s presence or to make any submissions on the issue of impartiality in that connection.", "91. Having regard to the foregoing, the Court finds that in the present case the applicant’s fears could have been considered objectively justified.", "92. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "93. The applicant alleged that his criminal conviction had entailed a violation of his right to freedom of expression as provided for by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. The Chamber judgment", "94. The Chamber found that there had been no violation of Article 10 of the Convention. It noted that the applicant had not confined himself to factual statements concerning the ongoing proceedings, but had accompanied them with value judgments which cast doubt on the impartiality and fairness of a judge.", "95. The Chamber, after noting that the investigating judge in question was no longer handling the case, took the view, firstly, that the applicant should have waited for the outcome of his request addressed the previous day to the Minister of Justice seeking an investigation by the General Inspectorate of Judicial Services into the alleged numerous shortcomings in the judicial investigation and, secondly, that the applicant had already successfully used a legal remedy to seek to cure any defects in the proceedings and the judge concerned by his remarks had been taken off the case. In view of the foregoing and the use of terms that the Chamber found particularly harsh, it took the view that the applicant had overstepped the limits that lawyers had to observe in publicly criticising the justice system. It added that its conclusion was reinforced by the seriousness of the accusations made in the article, and that, also having regard to the chronology of the events, it could be inferred that the applicant’s remarks were driven by a degree of personal animosity towards the judge. As to the “proportionality” of the sanction, the Chamber found that a fine of EUR 4,000, together with an award of EUR 7,500 in damages to each of the judges, did not appear excessive.", "B. The parties’ submissions before the Grand Chamber", "1. The applicant", "96. The applicant argued that the Court’s case-law guaranteed strong protection to the freedom of expression of lawyers, who played a key role in the administration of justice and the upholding of the rule of law, with any restriction having to remain exceptional. Such protection could be explained by two reasons: firstly, no special circumstances could justify affording a wide margin of appreciation to States, bearing in mind that European and international texts, on the contrary, protected lawyers in the activity of defending their clients; secondly, their freedom of expression was linked to their clients’ right to a fair trial under Article 6 of the Convention. He further observed that the right of lawyers to make press statements as part of their clients’ defence was expressly acknowledged and that, in principle, there was, at European level, significant tolerance of lawyers’ criticism of judges, even when made in a public and media setting. He submitted, however, that the Chamber judgment highlighted some major uncertainties and vagaries in the case-law that affected the exercise of such freedom, especially outside the courtroom. He hoped that his case would enable the Grand Chamber to clarify the interpretation of the Convention on that point and to secure the protection of lawyers’ speech.", "97. He proposed in this connection a formal approach to lawyers’ freedom of expression, based on the defence and interests of their clients, to ensure special protection in this context for the purposes of Article 10 of the Convention. Such an approach would also have the effect of dispelling the ambiguity surrounding the status of lawyers, who participated in the smooth running of the justice system but, on the other hand, did not have to adopt a conciliatory posture vis-à-vis that system and its members, as their primary role was to defend their clients. Being a key witness to the proceedings, lawyers should be afforded a functional protection that was not limited to the courtroom and was as broad as possible, in order to contribute effectively to defending their clients and informing the public. Such a functional approach would also make it possible to take effective action in response to any excesses and abuses committed by lawyers in breach of professional ethics and to preserve the necessary protection of judges from frivolous accusations. Any abuse of the primary purpose of the strengthened protection of the lawyer’s freedom of expression, namely to uphold the rights of the defence, could thus entail sanctions.", "98. In the present case, the applicant observed that his conviction could be regarded as an interference with the exercise of his right to freedom of expression. He did not dispute the fact that it was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881.", "99. Whilst he did not deny, either, that it pursued the legitimate aim of the protection of the reputation or rights of others, in his view the idea that the criminal proceedings against him sought to “maintain the authority and impartiality of the judiciary” should be seriously called into question, as the impugned remarks were, on the contrary, intended to strengthen, rather than undermine, such authority. The applicant further submitted that the Chamber had wrongly placed on the same footing, on the one hand, the freedom of expression of lawyers and the public’s right to be informed about matters of general interest, and on the other, the dignity of the legal profession and the good reputation of judges; while the former were rights guaranteed by Article 10 of the Convention, the latter were merely interests that might warrant a restriction, which had to remain exceptional.", "100. As to the interference and whether it was necessary in a democratic society, the applicant took the view that it did not correspond to any pressing social need and that it was not proportionate to the aims pursued.", "101. The argument that there was no pressing social need was mainly supported by the context in which the remarks were made, because the case had received significant media coverage, as the Court had previously noted in its judgment in July and SARL Libération v. France (no. 20893/03, ECHR 2008) and as confirmed by the Chamber in paragraph 76 of its judgment. In addition, the status of the victim, the place and circumstances of his death, the diplomatic ramifications of the case, and the suspicions that the current President of the Republic of Djibouti might have been involved as the instigator, all showed that the case concerned a matter of general interest requiring strong protection of freedom of expression. Moreover, on 19 June 2007 the Paris public prosecutor had issued a press release stating that the theory of suicide had now been discounted in favour of a criminal explanation. That statement had been made at the request of the investigating judge under Article 11, paragraph 3, of the Code of Criminal Procedure (permitting the public disclosure of details of the case to avoid the dissemination of incomplete or inaccurate information, or to put an end to a breach of public order). The case was so sensitive that the investigation was now being handled by three investigating judges.", "102. The applicant argued that the remarks regarding the shortcomings in the justice system, in the context of the lawyer’s duty to defend a client, could be deemed to merit even stronger protection. He denied going beyond the limits of permissible criticism: his comments concerned only the professional conduct of Judges M. and L.L., which was so crucial for the civil parties; the remarks had a sufficient factual basis which lay in two proven facts, firstly, the fact that the video-cassette in issue had not been transmitted to the new investigating judge with the rest of the case file and, secondly, the existence of the handwritten card from the prosecutor of Djibouti to Judge M.; moreover, the proceedings brought against the applicant and his colleague Mr L. de Caunes by Judges M. and L.L. for false accusation, following the letter sent by the lawyers to the Minister of Justice, had resulted in a discontinuance order, which had been upheld on appeal.", "103. As to the accusation that he had shown personal animosity, the applicant rejected this, pointing out that only the content and subject of the impugned remarks should be taken into account, not any intentions that might be wrongly attributed to him. The applicant added that he was not responsible for the reference to the disciplinary proceedings pending against Judge M. and he noted that, in any event, Judge L.L. had also lodged a criminal complaint, without there being any suggestion of personal animosity towards that judge as well. The applicant also denied that any insults or abuse could be detected in the remarks published in Le Monde. Lastly, he submitted that he was merely defending his client’s position in public, keeping her interests in mind without going beyond the scope of his duty of defence. He was of the view, in that connection, that this could not have influenced the ministerial or judicial authorities and he moreover challenged the idea that legal action by a lawyer on behalf of his client should preclude any comments in the press where the case aroused public interest. He asserted that, on the contrary, a lawyer was entitled to decide freely on his defence strategy for the benefit of his client.", "104. Lastly, the applicant submitted that the sanction imposed had been particularly disproportionate. The criminal sanction had consisted of a fine of EUR 4,000, which was higher than the fine imposed on the journalist and director of Le Monde (respectively EUR 3,000 and EUR 1,500). In the civil part of the judgment, in addition to the sums awarded to cover the costs of Judges M. and L.L., he had been ordered to pay, jointly with his co-defendants, EUR 7,500 in damages to each of the two judges. Lastly, the publication of a notice in Le Monde, with a fine of EUR 500 per day in the event of delay, had been ordered. He submitted that such sanctions were unjustified and disproportionate and that they would inevitably have a significant and regrettable chilling effect on all lawyers.", "2. The Government", "105. The Government did not deny that the applicant’s conviction constituted an interference with the exercise of his right to freedom of expression. They took the view, however, that this interference was prescribed by law, since its legal basis lay in section 23 and sections 29 et seq. of the Act of 29 July 1881, and that it pursued a legitimate aim. On that latter point they argued that it sought to maintain the authority and impartiality of the judiciary, and to ensure the protection of the reputation or rights of others, since the statements had been directed at judges in the exercise of their duties and also undermined the confidence of citizens in the judiciary.", "106. As to whether the interference was necessary in a democratic society, the Government were of the view that there was a fundamental difference between lawyers and journalists because of the former’s position as officers of the court ( auxiliaires de justice ). They occupied a central position as intermediaries between the public and the courts and their activities helped to ensure that justice was administered effectively and dispassionately. A balance had to be struck between the legitimate aim of informing the public about matters of general interest, including issues relating to the functioning of the justice system, and the requirements stemming from the proper administration of justice, on the one hand, and the dignity of the legal profession and the reputation of the judiciary, on the other.", "107. The Government noted two different situations in the Court’s case-law on freedom of expression: the participation of lawyers in debates on matters of general interest unrelated to any pending proceedings, where freedom of expression was particularly broad; and statements made by lawyers in their role of defending clients, where they had a wide freedom of expression in the courtroom. That freedom of expression in defending a client in pending proceedings did have certain limits, however, in order to preserve judicial authority, such as, for example, where the lawyer made statements critical of the justice system before even using the legal remedies available to him to rectify the shortcomings in question. The Government submitted that lawyers, as officers of the court, were thus obliged to use legal proceedings to correct any alleged errors; by contrast, harsh criticism in the press, where legal means could be used instead, was not justified by the requirements of the effective defence of the lawyer’s client and cast doubt on the probity of the justice system.", "108. In the present case the Government took the view that there had been numerous possible judicial remedies open to the applicant for the effective defence of his client and that he had in fact made use of them. His statements in the media could therefore only have been for the purpose of informing the public about a subject of general interest, but, as they concerned an ongoing case, he should have spoken with moderation.", "109. In examining the impugned remarks, the Government referred to the margin of appreciation afforded to States in such matters. The article in question concerned a particularly sensitive case which, from the outset, had received significant media coverage. In their view, it could be seen from the article in Le Monde that the offending remarks were aimed, unequivocally, at the two judges and were phrased in terms that impugned their honour. The applicant had not confined himself to a general criticism of the institutions but had expressed biased views, without the slightest prudence. In the Government’s submission, he had not made factual statements regarding the functioning of the judicial system, but rather value judgments that cast serious doubt on the investigating judges’ integrity. The Government stated that the domestic courts had carefully examined each of the statements in question to establish whether they went beyond the limits of acceptable criticism. They further submitted that the evidence produced by the applicant was devoid of probative value.", "110. Concerning the applicant’s unsuccessful defence of good faith, based on the duties inherent in his responsibility to defend his client’s interests, the Government observed that the French courts had assessed good faith in the light of Article 10 of the Convention and the four criteria that had to be fulfilled concurrently: the legitimacy of the aim pursued, the absence of personal animosity, the seriousness of the investigation carried out or of the evidence obtained by the author of the comments and, lastly, the prudence shown in expressing them. The domestic courts had taken the view that those conditions had not been fulfilled in the present case and had regarded the applicant’s remarks as a settling of scores with a judge. The applicant was at fault not for expressing himself outside the courtroom, but for using excessive comments, whereas he could have expressed himself without impugning the honour of State officials.", "111. The Government submitted that such attacks on judges did not contribute either to a clear public understanding of the issues, since the judicial authority had no right of reply, or to the proper conduct of the judicial proceedings in a context in which the investigating judge who was the subject of the harsh criticism had already been removed from the case. In their view, neither was it a matter of zealous defence by a lawyer of his client, because there were judicial remedies that he could have used to submit his complaint. The Government referred to the Court’s inadmissibility decision in Floquet and Esménard v. France ((dec.), nos. 29064/08 and 29979/08, 10 January 2012), which concerned comments made by journalists in the Borrel case, particularly as, in the present case, it was not a journalist but a lawyer who was the author of the impugned statements, and moreover in a case that was pending in the domestic courts.", "112. As to the sanction imposed on the applicant, the Government were of the view that it could not be regarded as excessive or such as to have a chilling effect on the exercise of freedom of expression. They thus submitted that there had been no violation of Article 10 of the Convention.", "C. Observations of the third-party interveners before the Grand Chamber", "1. Observations of the Council of Bars and Law Societies of Europe (CCBE)", "113. The CCBE observed that the Court’s judgment in the present case would most certainly have a considerable impact on the conditions of interpretation and application of the standards of conduct imposed on European lawyers and more particularly with regard to their freedom of speech and expression in the context of the exercise of defence rights. Lawyers held a key position in the administration of justice and it was necessary to protect their specific status. Being the cornerstone of a democratic society, freedom of expression had a particular characteristic as regards lawyers, who had to be able to carry on their profession without hindrance; if the use of their speech were to be censored or restricted, the real and effective defence of the citizen would not be guaranteed.", "114. The CCBE referred to the Court’s case-law to the effect that a restriction of freedom of expression would entail a violation of Article 10 unless it fell within the exceptions mentioned in paragraph 2 of that Article. The examination criteria related to the existence of an interference, its legal foreseeability, whether it was necessary in a democratic society to meet a “pressing social need” and the specific circumstances of the case. In the CCBE’s view, these criteria were all the more valid where a lawyer defending Convention rights was concerned.", "115. The limits to freedom of expression had firstly to be reasonably foreseeable, with a more restrictive and precise definition of the criteria relating to the restrictions that could be placed on lawyers’ freedom of expression. The CCBE noted discrepancies in the assessment by the various Sections of the Court: in a related case (see July and SARL Libération, cited above) the Court had found a violation of Article 10, whereas the Chamber in the present case had found no violation. In the CCBE’s view such discrepancies in assessment appeared to be the result of different approaches to the remarks of a lawyer: a degree of immunity applied to any views, however harsh, on the justice system or a court, whilst criticism of a judge did not enjoy such immunity. Such a distinction was extremely difficult to apply and gave rise to almost insurmountable problems, on account of the interdependence between the general and the personal in the conduct of proceedings, together with the fact that, in an inquisitorial system, judicial office could not be separated from the institution itself.", "116. As the present case concerned freedom of expression outside the courtroom, the limits also had to take account of the fact that in sensitive and high-profile cases, and especially in those where reasons of State were at stake, lawyers often had no choice but to speak publicly to voice concerns regarding a hindrance to the proper conduct of the proceedings. In such cases, lawyers should have the same freedom of speech and expression as journalists. To restrict their freedom of expression, particularly when the proceedings were part of an inquisitorial system as in France, would prevent them from contributing to the proper administration of justice and ensuring public confidence therein.", "117. The CCBE observed that as soon as a case attracted media attention, and, more particularly, where reasons of State were at stake, the rights of the defence, in certain cases, could only be meaningfully safeguarded by means of a public statement, even one that was somewhat vocal. Referring to the Court’s findings in Mor v. France (no. 28198/09, § 42, 15 December 2011), it took the view that the fact that neither the competent judicial authority nor the professional disciplinary body had initiated proceedings would provide a foreseeable test in relation to the uncertainties surrounding any inappropriate action by a judge, whose office could not be distinguished from the judicial authority itself.", "2. Joint observations of the Paris Bar Association, the National Bar Council and the Conference of Chairmen of French Bars", "118. These third-party interveners pointed out, firstly, that until recently the issue of a lawyer’s freedom of speech had arisen only inside the courtroom, and that in the context of defending a client at a hearing, the lawyer was protected by immunity from legal proceedings, an immunity which covered pleadings and oral argument before a court, under section 41 of the Act of 29 July 1881. This immunity authorised remarks which could be considered offensive, defamatory or injurious.", "119. In their view, the point of principle in the present case was the lawyer’s freedom of expression to defend his client when he was addressing the press, where the case had attracted a certain level of public interest. The resulting issue was how to determine when comments became excessive, however strong they might be, if they affected an opponent, a judge or a fellow lawyer.", "120. Every lawyer, however well known, was the custodian of the client’s word. When a case came to public attention, it was the lawyer’s responsibility to continue to defend that client, whether by taking any necessary ad hoc proceedings or by adding his own voice to the media storm, as had become the norm. This was no longer a lawyer’s right but a duty attached to his position, whether the story of the case broke some time before any public hearing, as was often the case, or later.", "121. Lawyers were entitled to criticise the court’s ruling and to relay any criticism their clients might wish to make. The lawyer’s comments were then necessarily interpreted and received by the public as partial and subjective. The parallel between the judge’s duty of discretion and the lawyer’s freedom of speech was not convincing. Whilst the word of the judge would be received as objective, the words of the lawyer were taken as the expression of a protest by a party. It was not unusual, therefore, for a judge to be obliged to remain silent, whilst comments by a lawyer, for a party to the proceedings, would in no way disrupt the independence and authority of the justice system.", "122. The third-party interveners observed that, while the French courts had always strictly applied the immunity referred to in section 41 of the 1881 Act to judicial comments alone, they were not unaware that lawyers had to contend with certain developments when their cases attracted media attention. They cited a recent example from a high-profile case where a lawyer had been prosecuted for defaming a lawyer for the opposing party. The Paris tribunal de grande instance had accepted his plea of good faith, even though his comments had been particularly excessive and based only on his personal belief, as “they came from a passionate lawyer who dedicated all of his energy to defending his client and who could not restrict his freedom of expression on the sole ground that he was referring to his case in front of journalists rather than addressing judges” (final judgment of the Seventeenth Division of the Paris tribunal de grande instance of 20 October 2010). The distinction between judicial and extrajudicial expression had therefore become outdated. The word of a lawyer was in fact based on a duty to inform; like journalists, lawyers were also “watchdogs of democracy”.", "123. The third-party interveners submitted, lastly, that there was an obligation of proportionality in such matters both for lawyers and for the State. Lawyers had a very difficult role and this duty of proportionality reflected their duties of sensitivity and moderation, from which they could depart only where this was justified by the defence of their client and by the attacks or pressure they were under. As regards the State, the third-party interveners were of the view that lawyers should normally be granted immunity where their comments, however excessive, were linked to the defence of their client’s interests. Any restriction on their right to express their views should be exceptional, the test being whether or not the comments were detachable from the defence of the client. The margin of freedom of expression for lawyers, which had to remain as broad as that of journalists, should take account of the constraints faced by them and the increased media attention, with a press that was increasingly curious and probing.", "D. The Court’s assessment", "1. General principles", "(a) Freedom of expression", "124. The general principles concerning the necessity of an interference with freedom of expression, reiterated many times by the Court since its judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC] no. 69698/01, § 101, ECHR 2007 ‑ V) and restated more recently in Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013), as follows.", "“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "125. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending in respect of the other defendants (see Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010, and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France, no. 54968/00, § 42, 22 December 2005).", "126. Furthermore, in its judgments in Lingens v. Austria (8 July 1986, § 46, Series A no. 103) and Oberschlick v. Austria (no. 1) (23 May 1991, § 63, Series A no. 204), the Court drew a distinction between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports 1997-I). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky-Laurens and July, cited above, § 55). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks (see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact (see Paturel, cited above, § 37).", "127. Lastly, the nature and severity of the sanctions imposed are also factors to be taken into account when assessing the proportionality of the interference. As the Court has previously pointed out, interference with freedom of expression may have a chilling effect on the exercise of that freedom. The relatively moderate nature of the fines does not suffice to negate the risk of a chilling effect on the exercise of freedom of expression, this being all the more unacceptable in the case of a lawyer who is required to ensure the effective defence of his clients (see Mor, cited above, § 61). Generally speaking, while it is legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999-VI; and Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011).", "(b) Maintaining the authority of the judiciary", "128. Questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In this connection, regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a State governed by the rule of law, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313; Karpetas v. Greece, no. 6086/10, § 68, 30 October 2012; and Di Giovanni v. Italy, no. 51160/06, § 71, 9 July 2013).", "129. The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the resolution of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the courts’ capacity to fulfil that function (see Worm v. Austria, 29 August 1997, § 40, Reports 1997-V, and Prager and Oberschlick, cited above).", "130. What is at stake is the confidence which the courts in a democratic society must inspire not only in the accused, as far as criminal proceedings are concerned (see Kyprianou, cited above, § 172), but also in the public at large (see Kudeshkina v. Russia, no. 29492/05, § 86, 26 February 2009, and Di Giovanni, cited above).", "131. Nevertheless – save in the case of gravely damaging attacks that are essentially unfounded – bearing in mind that judges form part of a fundamental institution of the State, they may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner (see July and SARL Libération, cited above, § 74). When acting in their official capacity they may thus be subject to wider limits of acceptable criticism than ordinary citizens (ibid.).", "(c) The status and freedom of expression of lawyers", "132. The specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. They therefore play a key role in ensuring that the courts, whose mission is fundamental in a State based on the rule of law, enjoy public confidence (see Schöpfer v. Switzerland, 20 May 1998, §§ 29-30, Reports 1998-III; Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II; Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Kyprianou, cited above, § 173; André and Another v. France, no. 18603/03, § 42, 24 July 2008; and Mor, cited above, § 42). However, for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation (see Kyprianou, cited above, § 175).", "133. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct (see Van der Mussele v. Belgium, 23 November 1983, Series A no. 70; Casado Coca v. Spain, 24 February 1994, § 46, Series A no. 285-A; Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI; Veraart v. the Netherlands, no. 10807/04, § 51, 30 November 2006; and Coutant v. France (dec.), no. 17155/03, 24 January 2008). Whilst they are subject to restrictions on their professional conduct, which must be discreet, honest and dignified, they also enjoy exclusive rights and privileges that may vary from one jurisdiction to another – among them, usually, a certain latitude regarding arguments used in court (see Steur, cited above).", "134. Consequently, freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed (see Foglia v. Switzerland, no. 35865/04, § 85, 13 December 2007). Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds (see Amihalachioaie, cited above, §§ 27-28; Foglia, cited above, § 86; and Mor, cited above, § 43). Those bounds lie in the usual restrictions on the conduct of members of the Bar (see Kyprianou, cited above, § 173), as reflected in the ten basic principles enumerated by the CCBE for European lawyers, with their particular reference to “dignity”, “honour” and “integrity” and to “respect for ... the fair administration of justice” (see paragraph 58 above). Such rules contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling the particular case.", "135. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice (see Siałkowska v. Poland, no. 8932/05, § 111, 22 March 2007). It is only in exceptional cases that restriction – even by way of a lenient criminal penalty – of defence counsel’s freedom of expression can be accepted as necessary in a democratic society (see Nikula, cited above, § 55; Kyprianou, cited above, § 174; and Mor, cited above, § 44).", "136. A distinction should, however, be drawn depending on whether the lawyer expresses himself in the courtroom or elsewhere.", "137. As regards, firstly, the issue of “conduct in the courtroom”, since the lawyer’s freedom of expression may raise a question as to his client’s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties (see Nikula, cited above, § 49, and Steur, cited above, § 37). Lawyers have the duty to “defend their clients’ interests zealously” (see Nikula, cited above, § 54), which means that they sometimes have to decide whether or not they should object to or complain of the conduct of the court (see Kyprianou, cited above, § 175). In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a “party” to the proceedings, has to “tolerate very considerable criticism by ... defence counsel”, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities (see Nikula, cited above, §§ 51-52; Foglia, cited above, § 95; and Roland Dumas, cited above, § 48).", "138. Turning now to remarks made outside the courtroom, the Court reiterates that the defence of a client may be pursued by means of an appearance on the television news or a statement in the press, and through such channels the lawyer may inform the public of shortcomings that are likely to undermine pre-trial proceedings (see Mor, cited above, § 59). The Court takes the view, in this connection, that a lawyer cannot be held responsible for everything published in the form of an “interview”, in particular where the press has edited the statements and he or she has denied making certain remarks (see Amihalachioaie, cited above, § 37). In the above-cited Foglia case, it also found that lawyers could not justifiably be held responsible for the actions of the press (see Foglia, cited above, § 97). Similarly, where a case is widely covered in the media on account of the seriousness of the facts and the individuals likely to be implicated, a lawyer cannot be penalised for breaching the secrecy of the judicial investigation where he or she has merely made personal comments on information which is already known to the journalists and which they intend to report, with or without those comments. Nevertheless, when making public statements, a lawyer is not exempted from his duty of prudence in relation to the secrecy of a pending judicial investigation (see Mor, cited above, §§ 55-56).", "139. Lawyers cannot, moreover, make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis (see Karpetas, cited above, § 78; see also A. v. Finland (dec.), no. 44998/98, 8 January 2004), nor can they proffer insults (see Coutant, cited above). In the circumstances in Gouveia Gomes Fernandes and Freitas e Costa (cited above, § 48), the use of a tone that was not insulting but caustic, or even sarcastic, in remarks about judges was regarded as compatible with Article 10. The Court assesses remarks in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack (see Ormanni v. Italy, no. 30278/04, § 73, 17 July 2007, and Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 51) and to ensure that the expressions used have a sufficiently close connection with the facts of the case (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII, and Gouveia Gomes Fernandes and Freitas e Costa, cited above).", "2. Application of those principles in the present case", "140. Turning to the present case, the Court observes that the applicant received a criminal conviction, with an order to pay damages and costs, on account of his remarks concerning the proceedings in the Borrel case, as reproduced in an article in the daily newspaper Le Monde, which contained the text of a letter sent by the applicant and his colleague to the Minister of Justice seeking an administrative investigation, together with statements that he had made to the journalist who wrote the impugned article.", "141. The Court notes at the outset that it is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 of the Convention. That is also the Court’s opinion.", "142. It further observes that the interference was prescribed by law, namely by sections 23, 29 and 31 of the Act of 29 July 1881, as the applicant acknowledged.", "143. The parties also agreed that the aim of the interference was the protection of the reputation or rights of others. The Court does not see any reason to adopt a different view. While the applicant wished to qualify the point that the proceedings against him also sought to “maintain the authority and impartiality of the judiciary” (see paragraph 99 above), this question relates to the “necessity” of the interference and cannot affect the fact that it pursued at least one of the “legitimate aims” covered by paragraph 2 of Article 10.", "144. It remains therefore to be examined whether the interference was “necessary in a democratic society” and this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient.", "145. The Court notes that, in convicting the applicant, the Court of Appeal took the view that to say that an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness” was in itself a particularly defamatory accusation (see paragraph 47 above). That court added that the applicant’s comments concerning the delay in forwarding the video-cassette and his reference to the handwritten card from the public prosecutor of Djibouti to Judge M., in respect of which the applicant had used the term “connivance”, merely confirmed the defamatory nature of the accusation (ibid.), the “veracity” of the allegations not having been established (see paragraph 48 above) and the applicant’s defence of good faith being rejected (see paragraph 49 above).", "(a) The applicant’s status as a lawyer", "146. The Court observes, firstly, that the remarks in question stemmed both from statements made at the request of the journalist who wrote the article and from the letter to the Minister of Justice. The remarks were made by the applicant in his capacity as a lawyer acting for the civil party and concerned matters relating to the proceedings in the Borrel case.", "147. In this connection the Court notes at the outset that the applicant has invited it to clarify its case-law concerning the exercise of freedom of expression by a lawyer, particularly outside the courtroom, and to afford the greatest possible protection to comments by lawyers (see paragraphs 96, 97 and 102 above). The Government, for their part, while taking the view that their status as officers of the court fundamentally distinguished lawyers from journalists (see paragraph 106 above), identified various situations in which freedom of expression would be “particularly broad”, “wide”, or, on the contrary, subject to “certain limits” (see paragraph 107 above).", "148. The Court would refer the parties to the principles set out in its case-law, particularly with regard to the status and freedom of expression of lawyers (see paragraphs 132-39 above), with emphasis on the need to distinguish between remarks made by lawyers inside and outside the courtroom. Moreover, in view of the specific status of lawyers and their position in the administration of justice (see paragraph 132 above), the Court takes the view, contrary to the argument of the CCBE (see paragraph 116 above), that lawyers cannot be equated with journalists. Their respective positions and roles in judicial proceedings are intrinsically different. Journalists have the task of imparting, in conformity with their duties and responsibilities, information and ideas on all matters of public interest, including those relating to the administration of justice. Lawyers, for their part, are protagonists in the justice system, directly involved in its functioning and in the defence of a party. They cannot therefore be equated with an external witness whose task it is to inform the public.", "149. The applicant argued that his statements, as published in the newspaper Le Monde, served precisely to fulfil his task of defending his client – a task that was for him to determine. However, while it is not in dispute that the impugned remarks fell within the context of the proceedings, they were aimed at investigating judges who had been removed from the proceedings with final effect at the time they were made. The Court therefore fails to see how his statements could have directly contributed to his task of defending his client, since the judicial investigation had by that time been entrusted to another judge who was not the subject of the criticism.", "(b) Contribution to a debate on a matter of public interest", "150. The applicant further relied on his right to inform the public of shortcomings in the handling of ongoing proceedings and to contribute to a debate on a matter of public interest.", "151. On that point, the Court notes, firstly, that the applicant’s remarks were made in the context of the judicial investigation opened following the death of a French judge, Bernard Borrel, who had been seconded to the Djibouti Ministry of Justice as a technical adviser. The Court has already had occasion to note the significant media interest shown in this case from the outset (see July and SARL Libération, cited above, § 67), thus reflecting its prominence in public opinion. Like the applicant, the Court notes, moreover, that the justice system also contributed to informing the public of this case, as the investigating judge handling the case in 2007 asked the public prosecutor to issue a press release, under Article 11, paragraph 3, of the Code of Criminal Procedure, to announce that the suicide theory had been dismissed in favour of one of premeditated murder (see paragraphs 24 and 55 above).", "152. In addition, as the Court has previously found, the public have a legitimate interest in the provision and availability of information regarding criminal proceedings (see July and SARL Libération, cited above, § 66) and remarks concerning the functioning of the judiciary relate to a matter of public interest (see paragraph 125 above). The Court has in fact already been called upon on two occasions, in Floquet and Esménard and July and SARL Libération (both cited above), to examine complaints relating to the Borrel case and to the right to freedom of expression in respect of comments on the handling of the judicial investigation, finding in each of those cases that there was a debate on a matter of public interest.", "153. Accordingly, the Court takes the view that the applicant’s impugned remarks, which also concerned, as in the said judgments in Floquet and Esménard and July and SARL Libération, the functioning of the judiciary and the handling of the Borrel case, fell within the context of a debate on a matter of public interest, thus calling for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation accordingly being afforded to the authorities.", "(c) The nature of the impugned remarks", "154. The Court notes that after the applicant’s remarks had been found “particularly defamatory” he had been unable to establish their veracity on the basis of evidence that, according to the Criminal Court, had to “be flawless and complete and relate directly to all the allegations found to be defamatory” (see paragraph 40 above). His defence of good faith was also rejected. On that point, the Criminal Court and the Court of Appeal took the view, in particular, that the attacks on the professional and moral integrity of Judges M. and L.L. clearly overstepped the right of permissible criticism (see paragraphs 40 and 50 above). In addition, while the Criminal Court took the view that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their expression, the Court of Appeal concluded that the decision in the applicant’s favour to discontinue the proceedings brought against him by the two judges did not rule out bad faith on his part. It held that the applicant’s personal animosity and the wish to discredit the judges, in particular Judge M., stemmed from the excessive nature of his comments and from the fact that the article on the Borrel case had been published at the same time as the bringing of proceedings against Judge M. before the Indictment Division in connection with the “Scientology” case (ibid.).", "155. As the Court has already observed, it is necessary to distinguish between statements of fact and value judgments (see paragraph 126 above). The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof; a requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (ibid.). In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Andrushko v. Russia, no. 4260/04, § 53, 14 October 2010; Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 141, 4 March 2014; and Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014). No such chance was afforded in the present case.", "156. The Court takes the view that, in the circumstances of the case, the impugned statements were more value judgments than pure statements of fact, in view of the general tone of the remarks and the context in which they were made, as they reflected mainly an overall assessment of the conduct of the investigating judges in the course of the investigation.", "157. It thus remains to be examined whether the “factual basis” for those value judgments was sufficient.", "158. The Court is of the opinion that this condition was fulfilled in the present case. After the case had been withdrawn from Judges M. and L.L. by the Indictments Division of the Paris Court of Appeal (see paragraph 23 above), it became apparent that an important item of evidence in the file, namely a video-cassette recorded during a visit by the judges, accompanied by experts, to the scene of the death, even though it had been referred to in the last decision given by those judges, had not been forwarded with the investigation file to the judge appointed to replace them. That fact was not only established but it was also sufficiently serious to justify the drafting by Judge P. of a report in which he recorded the following: firstly, the video-cassette did not appear in the investigation file and was not registered as an exhibit; and secondly, it had been given to him in an envelope, which showed no sign of having been placed under seal, bearing the name of Judge M. as addressee and also containing a handwritten card with the letter head of the public prosecutor of Djibouti, written by him and addressed to Judge M. (see paragraph 32 above).", "159. Moreover, in addition to the fact that the card showed a certain friendliness on the part of the public prosecutor of Djibouti towards Judge M. (see paragraph 32 above), it accused the civil parties’ lawyers of “orchestrating their manipulation”. The Court would emphasise in this connection that, not only have the Djibouti authorities supported the theory of suicide from the outset, but also a number of representatives of that State have been personally implicated in the context of the judicial investigation conducted in France, as can be seen in particular from the judgment of the International Court of Justice (see paragraphs 63-64 above) and from the proceedings brought on a charge of procuring of false evidence (see paragraph 18 above).", "160. Lastly, it has been established that the applicant acted in his capacity as a lawyer in two high-profile cases in which Judge M. was an investigating judge. In both of them the applicant succeeded in obtaining findings by the appellate courts that there had been shortcomings in the proceedings, leading to the withdrawal of the cases from Judge M. (see paragraphs 22-23 and 26 above). In the context of the first case, known as the “Scientology” case, the applicant additionally secured a ruling that the French State was liable for the malfunctioning of the justice system (see paragraph 30 above).", "161. It further considers that the expressions used by the applicant had a sufficiently close connection with the facts of the case, in addition to the fact that his remarks could not be regarded as misleading or as a gratuitous attack (see paragraph 139 above). It reiterates in this connection that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. Similarly, the use of a “caustic tone” in comments aimed at a judge is not incompatible with the provisions of Article 10 of the Convention (see, for example, Gouveia Gomes Fernandes and Freitas e Costa, cited above, § 48).", "(d) The specific circumstances of the case", "(i) The need to take account of the overall background", "162. The Court reiterates that, in the context of Article 10 of the Convention, it must take account of the circumstances and overall background against which the statements in question were made (see, among many other authorities, Lingens, cited above, § 40, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III). In the present case, the background can be explained not only by the conduct of the investigating judges and by the applicant’s relations with one of them, but also by the very specific history of the case, its inter-State dimension and its substantial media coverage. The Court would observe, however, that the Court of Appeal attributed an extensive scope to the impugned remark of the applicant criticising an investigating judge for “conduct which [was] completely at odds with the principles of impartiality and fairness”, finding that this was in itself a particularly defamatory accusation, tantamount to saying that there had been a breach of professional ethics and of the judicial oath on the part of that judge (see paragraph 47 above). That quotation should, however, have been assessed in the light of the specific circumstances of the case, especially as it was in reality not a statement made to the author of the article, but an extract from the letter sent by the applicant and his colleague, Mr L. de Caunes, to the Minister of Justice on 6 September 2000. In addition, at the time when the applicant answered his questions the journalist had already been informed of the letter to the Minister of Justice, not by the applicant himself, but by his own sources, as the Criminal Court acknowledged (see paragraph 40 above). The applicant further argued, without this being in dispute, that the article’s author was solely responsible for the reference to the disciplinary proceedings against Judge M. in the context of the “Scientology” case. In that connection, the Court reiterates that lawyers cannot be held responsible for everything appearing in an “interview” published by the press or for actions by the press.", "163. The Court of Appeal was thus required to examine the impugned remarks with full consideration of both the background to the case and the content of the letter, taken as a whole.", "164. For the same reasons, since the impugned remarks could not be assessed out of context, the Court cannot share the view of the Paris Court of Appeal that the use of the term “connivance” constituted “in itself” a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti (see paragraph 47 above).", "165. As to the question of personal animosity on the part of the applicant towards Judge M., on account of conflicts in the context of the Borrel and “Scientology” cases, the Court takes the view that this aspect was insufficiently relevant and serious to warrant the applicant’s conviction. In any event, since the courts acknowledged the existence of conflicts between the two protagonists, and in view of the particular circumstances of the present case, such a reproach of personal animosity could have been made as much to Judge M. as to the applicant (see, mutatis mutandis, Paturel, cited above, § 45), especially as before filing a complaint against the applicant for complicity in defamation Judge M. had already unsuccessfully filed a complaint against him for false accusation (see paragraph 35 above). The Court of Appeal’s reliance on the applicant’s personal animosity is also at least undermined, if not contradicted, by other factors. Firstly, the remark concerning “conduct which [was] completely at odds with the principles of impartiality and fairness” was directed not only at Judge M., but also at Judge L.L., in respect of whom the applicant was not accused of showing any personal animosity. Furthermore, while the proceedings against the applicant concerned the above-cited extract from the letter to the Minister of Justice, that letter had in reality been signed and sent by two lawyers, the applicant and his colleague, Mr L. de Caunes. In the case of the latter, however, not only has he not been prosecuted for remarks that were attributable as much to him as to the applicant, he has not been accused of showing any animosity towards Judge M. or Judge L.L.", "166. In conclusion, the Court considers that the applicant’s statements could not be reduced to the mere expression of personal animosity, that is to say an antagonistic relationship between two individuals, the applicant and Judge M. The impugned remarks fell, in reality, within a broader context, also involving another lawyer and another judge. In the Court’s opinion, that fact is capable of supporting the idea that the remarks were not part of any personal action on the part of the applicant, out of a desire for vengeance, but rather formed part of a joint professional initiative by two lawyers, on account of facts that were new, established and capable of revealing serious shortcomings in the justice system, involving the two judges who had formerly been conducting the investigation in a case in which the two lawyers’ clients were civil parties.", "167. In addition, while the applicant’s remarks certainly had a negative connotation, it should be pointed out that, notwithstanding their somewhat hostile nature (see E.K. v. Turkey, cited above, §§ 79-80) and seriousness (see Thoma, cited above), the key question in the statements concerned the functioning of a judicial investigation, which was a matter of public interest, thus leaving little room for restrictions on freedom of expression. In addition, a lawyer should be able to draw the public’s attention to potential shortcomings in the justice system; the judiciary may benefit from constructive criticism.", "(ii) Maintaining the authority of the judiciary", "168. The Government relied on the fact that the judicial authorities had no right of reply. It is true that the particular task of the judiciary in society requires judges to observe a duty of discretion (see paragraph 128 above). However, that duty pursues a specific aim, as noted by the third-party interveners: the speech of judges, unlike that of lawyers, is received as the expression of an objective assessment which commits not only the person expressing himself, but also, through him, the entire justice system. Lawyers, for their part, merely speak in their own name and on behalf of their clients, thus also distinguishing them from journalists, whose role in the judicial debate and purpose are intrinsically different. Nevertheless, while it may prove necessary to protect the judiciary against gravely damaging attacks that are essentially unfounded, bearing in mind that judges are prevented from reacting by their duty of discretion (see paragraph 128 above), this cannot have the effect of prohibiting individuals from expressing their views, through value judgments with a sufficient factual basis, on matters of public interest related to the functioning of the justice system, or of banning any criticism of the latter. In the present case, Judges M. and L.L. were members of the judiciary and were thus both part of a fundamental institution of the State: they were therefore subject to wider limits of acceptable criticism than ordinary citizens and the impugned comments could therefore be directed against them in that capacity (see paragraphs 128 and 131 above).", "169. The Court further finds, contrary to what has been argued by the Government, that the applicant’s remarks were not capable of undermining the proper conduct of the judicial proceedings, in view of the fact that the higher court had withdrawn the case from the two investigating judges concerned by the criticisms. Neither the new investigating judge nor the higher courts were targeted in any way by the impugned remarks.", "170. Nor can it be considered, for the same reasons and taking account of the foregoing, that the applicant’s conviction could serve to maintain the authority of the judiciary. The Court would nevertheless emphasise the importance, in a State governed by the rule of law and in a democratic society, of maintaining the authority of the judiciary. In any event, the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers.", "(iii) The use of available remedies", "171. With regard to the Government’s argument as to the possibility of using available remedies, the Court finds it pertinent but not sufficient in the present case to justify the applicant’s conviction. It first notes that the use of available remedies, on the one hand, and the right to freedom of expression, on the other, do not pursue the same aim and are not interchangeable. That being said, the Court takes the view that the defence of a client by his lawyer must be conducted not in the media, save in very specific circumstances (see paragraph 138 above), but in the courts of competent jurisdiction, and this involves using any available remedies. It notes that in the present case the referral to the Indictments Division of the Paris Court of Appeal patently showed that the initial intention of the applicant and his colleague was to resolve the matter using the available remedies. It was, in reality, only after that remedy had been used that the problem complained of occurred, as recorded by the investigating judge P. in his official report of 1 August 2000 (see paragraph 32 above). At that stage the Indictments Division was no longer in a position to examine such complaints, precisely because it had withdrawn the case from Judges M. and L.L. The Court further notes that, in any event, four and a half years had already elapsed since the opening of the judicial investigation, which has still not been closed to date. It also observes that the civil parties and their lawyers took an active part in the proceedings and, in particular, that they succeeded, according to the judgment of the Versailles Court of Appeal of 28 May 2009, in having a material witness examined in Belgium in spite of a lack of interest in him on the part of the investigating judges M. and L.L. (see paragraph 16 above).", "172. Moreover, the request for an investigation made to the Minister of Justice complaining of these new facts was not a judicial remedy – such as to justify possibly refraining from intervention in the press – but a mere request for an administrative investigation subject to the discretionary decision of the Minister of Justice. The Court notes in this connection that the domestic judges themselves, both at first instance and on appeal, took the view that the letter could not enjoy the immunity afforded to judicial acts, the Criminal Court having found that its content was purely informative (see paragraphs 38 and 46 above). The Court observes that it has not been argued that this request was acted upon and, in addition, it notes that Judges M. and L.L. clearly did not see it as the normal use of a remedy available under domestic law, but as an act justifying the filing of a complaint for false accusation (see paragraph 35 above).", "173. Lastly, the Court finds that neither the Principal Public Prosecutor nor the relevant Bar Council or chairman of the Bar found it necessary to bring disciplinary proceedings against the applicant on account of his statements in the press, although such a possibility was open to them (see Mor, cited above, § 60).", "(iv) Conclusion as to the circumstances of the present case", "174. The Court is of the view that the impugned remarks by the applicant did not constitute gravely damaging and essentially unfounded attacks on the action of the courts, but criticisms levelled at Judges M. and L.L. as part of a debate on a matter of public interest concerning the functioning of the justice system, and in the context of a case which had received wide media coverage from the outset. While those remarks could admittedly be regarded as harsh, they nevertheless constituted value judgments with a sufficient “factual basis”.", "(e) The sanctions imposed", "175. As to the sentences imposed, the Court reiterates that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Sürek, cited above, § 64; Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004-VI; and Mor, cited above, § 61). In the present case, the Court of Appeal sentenced the applicant to pay a fine of EUR 4,000. This amount corresponds precisely to that fixed by the first-instance court, where the judges had expressly taken into account the applicant’s status as a lawyer to justify their severity and to impose on him “a fine of a sufficiently high amount” (see paragraph 41 above). In addition to ordering the insertion of a notice in the newspaper Le Monde, the court ordered him to pay, jointly with the journalist and the publication director, EUR 7,500 in damages to each of the two judges, together with EUR 4,000 to Judge L.L. in costs. The Court notes, moreover, that the applicant alone was ordered to pay a sum to Judge M. in respect of costs, amounting to EUR 1,000.", "176. The Court reiterates that even when the sanction is the lightest possible, such as a guilty verdict with a discharge in respect of the criminal sentence and an award of only a “token euro” in damages (see Mor, cited above, § 61), it nevertheless constitutes a criminal sanction and, in any event, that fact cannot suffice, in itself, to justify the interference with the applicant’s freedom of expression (see Brasilier, cited above, § 43). The Court has emphasised on many occasions that interference with freedom of expression may have a chilling effect on the exercise of that freedom (see, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 114, ECHR 2004 ‑ XI, and Mor, cited above) – a risk that the relatively moderate nature of a fine would not suffice to negate (see Dupuis and Others v. France, no. 1914/02, § 48, 7 June 2007). It should also be noted that imposing a sanction on a lawyer may have repercussions that are direct (disciplinary proceedings) or indirect (in terms, for example, of their image or the confidence placed in them by the public and their clients). The Court would, moreover, reiterate that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings (see paragraph 127 above). The Court observes, however, that in the present case the applicant’s punishment was not confined to a criminal conviction: the sanction imposed on him was not the “lightest possible”, but was, on the contrary, of some significance, and his status as a lawyer was even relied upon to justify greater severity.", "3. Conclusion", "177. In view of the foregoing, the Court finds that the judgment against the applicant for complicity in defamation can be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore “necessary in a democratic society” within the meaning of Article 10 of the Convention.", "178. Accordingly, there has been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "179. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "180. The applicant claimed 4,270 euros (EUR) in respect of pecuniary damage, corresponding to the amounts he was ordered to pay on account of the judgment against him, and EUR 20,000 in respect of non-pecuniary damage on account of the violation of Articles 6 and 10 of the Convention.", "181. The Government did not comment on those claims before the Grand Chamber.", "182. The Court observes that the applicant was ordered to pay a fine of EUR 4,000, together with the sum of EUR 1,000 in respect of Judge M.’s costs and expenses, in addition to an award of EUR 7,500 in damages to each of the judges to be paid jointly with the other two co-defendants, and EUR 4,000 in respect of Judge L.L.’s costs (see paragraph 46 above). It thus takes the view that there is a sufficient causal link between the alleged pecuniary damage and the violation found under Article 6 and, especially, under Article 10 of the Convention. It is thus appropriate to order, under the head of pecuniary damage, the reimbursement of the sums that the applicant was required to pay, within the limit indicated in his claim, namely EUR 4,270, which corresponds to the amount of the fine, plus taxes and court courts, that was paid to the Treasury.", "183. The Court further finds that the applicant clearly sustained non-pecuniary damage on account of his criminal conviction and, ruling on an equitable basis, it awards him EUR 15,000 on that basis.", "B. Costs and expenses", "184. The applicant claimed EUR 26,718.80 in respect of costs and expenses for the proceedings before the Court.", "185. The Government made no comment on this claim before the Grand Chamber.", "186. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, among many other authorities, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI; Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002; and Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, ECHR 2014).", "187. In the present case, taking account of the documents in its possession and the above-mentioned criteria, the Grand Chamber finds it reasonable to award EUR 14,400 on that basis to the applicant.", "C. Default interest", "188. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1946 and lives in Sant ’ Angelo In Campo (Lucca ).", "A. The applicant ’ s “circular letter”", "6. In 2001 the applicant was practising law. In September 2001 he sent a letter to the Italian National Legal Service Commission ( Consiglio Superiore della Magistratura – the “ CSM ” ) in which he complained about the conduct of a judge, X, at the Lucca District Court. He subsequently transmitted the content of that letter by means of a “circular letter” to a number of judges of the same court, but without expressly referring to X by name.", "7. The relevant parts of that circular letter read as follows :", "“ Before you receive any incorrect or untrue information, before the corporatist spirit prevails over a correct interpretation of the reasons that drove me to write to the CSM, to the Ministry of Justice, to the National Council of Notaries and to the National Bar Council, about the conduct of two judges of the Lucca District Court in the context of a judicial partition procedure to which my clients were parties, and before any of my colleagues come to apologise, on my behalf, for my initiative, perhaps making out that I am insane or irresponsible, my intention is to clarify and tell you the reasons which led me to do so.", "An appeal on points of law is pending against a judgment of the Lucca District Court in which that court, ruling against the claims by a female partner and deciding on the related issue of the partition of an inheritance, asked the investigating judge to proceed with the sale of a flat, which was the sole item of property to be divided between the heirs, and which was occupied by the partner and her daughter, an heir, born to the cohabiting couple. Since the judgment of the Lucca District Court was not final, it was not possible to proceed with the sale or to initiate the procedure relating thereto, since this was prohibited expressly by Article 791 of the Code of Civil Procedure.", "The other heir, however, applied for ... the sale, and the investigating judge, in spite of our repeated requests for suspension of the sale, which were all rejected, brought about, after two auctions without a buyer, the conveyance of the property to a third party at the third auction.", "Here are the specific reasons for which all our requests were rejected :", "...", "In spite of this, I would like to point out at the outset that I do not feel any animosity towards the judiciary and judges in general, and that I consider, by contrast, that the role played by judges is crucial and irreplaceable for civil society.", "There are and have been judges who carry out and have carried out their duties with great dignity and decorum [ decoro ], and who deserve my admiration and the admiration of all those who have worked in the field of justice. None of us can forget Y, who died, one can say, on the ‘ battlefield ’. I still remember that, in the courtroom, he was the one, out of all his colleagues, who, even in his state of extreme and obvious suffering, took the greatest number cases for adjudication, and he carried on doing this until the bitter end. I confess that if I had been able to spare him the effort, in view of his condition, I would willingly have taken over his workload. But there are other equally deserving judges who work, even during their holidays, going to the office, talking to lawyers, and with whom we can have a form of collaboration and dialogue – and to them I also express my esteem and admiration.", "I am well aware that justice is done by men and precisely for that reason decisions may be erroneous and incomplete. I still prefer, however, a human justice to one that is automated.", "But what I refuse to accept is the idea that, when the rights of the individual and the dignity of those whose task it is to defend him or her are at stake, those rights could be decided upon in a partial manner, perhaps with a display of arrogance, or that a ruling could be given with total indifference and lack of commitment. I personally believe strongly in the autonomy of the judiciary and I feel that without respect for the autonomy of the person whose task it is to decide, it would be impossible to have dispassionate and fair judgments. Autonomy, however, cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness. I have pointed out how I see the meaning of justice and reiterate that I think very highly of the duties exercised by judges, and that my full admiration goes to those who act with dedication, commitment and decorum [ decoro ].", "I am even envious of judges, because they probably have more time to study and to dwell on issues, and also to attend to other cultural and social interests, than lawyers who, by the nature and specificity of their work, do not always manage to do things or to do things well. I often take home things to read and to study and I end up, mid-evening, nodding off over a book after a busy day, running from one office to another in the morning, and answering the phone or receiving clients in the afternoon. I also understand that the judiciary is burdened with work and with problems, that the staffing is insufficient and the workload huge – and for that reason it is true that protests [ esposti ] do not help to get the work done more easily, and that more collaboration and dialogue would be better than protests. There are limits, however, that in my view should not be passed and, after thinking about this for quite some time, I decided to submit this particular protest [ the letter to the CSM]. I will now quote the last part of my protest in which I dwell on the meaning of the lawyer ’ s profession and ask whether it is legitimate that any decision or conduct should always be accepted :", "‘ This lawyer would point out as follows :", "It is regrettable to direct this letter against individuals who, even [ if they have ] different duties, are considered by this lawyer to be “colleagues”, as practitioners in law usually call each other. He considers, however, that he is obliged to do so in response to a lack of commitment and total indifference towards the legitimate demands of the citizen in whose name justice is done, with a belief in impunity, as the position is one of “power”, even though it should be seen as the discharge of a “duty”, and “ last but not least ”, a lack of respect for the dignity and responsibility of this lawyer ’ s profession.", "This lawyer has practised law in courts at three levels of jurisdiction, has borne very high costs on behalf of his clients – to the point where, if one were to apply the professional rate, one would exceed the amount of the claim – has sought, in three statements of claim filed in the Florence Court of Appeal, a stay of execution under Article 373 of the Code of Civil Procedure, but his requests were all rejected by reasoning that leaves much to be desired – but that is not the subject of this protest – has accumulated a formidable pile of documents of all descriptions, and has seen the attachment of funds in respect of his own claim go up in smoke.", "In the time it has taken to work on these cases, he could probably have dealt with fifteen ordinary cases of average complexity.", "If work – any type of work, provided it is lawful – has its own protection and its own dignity, then the judge too ( more than any person, as a result of his function and role ) cannot but allow himself not to respect for the work of others, including that of the lawyer.", "As a legal practitioner, this lawyer has a duty to provide some certainty to his client, who is the citizen in whose name justice is done ( judgments are headed “In the name of the Italian People” ).", "What certainty can the lawyer provide if each judge, instead of applying the law, gives his preferred interpretation and does not even explain his interpretation of the laws in question? It should be noted that the system of appeals and claims is no guarantee for the citizen. Judges are only human and can make mistakes ( errare humanum est ), but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence, and the citizen must have his or her claims upheld, provided they are well founded, from the earliest stage. There are a large number of cases; this can be explained by the fact that if many decisions had been taken correctly from the outset, one could have avoided the proliferation of cases, procedures and claims, as can be seen here; and not forgetting the many cases where the citizen, disappointed and bemused to receive abnormal decisions, having lost all confidence in the justice system, decides not to appeal. This entails a justified loss of confidence in the courts and an increase in workload and expense for the State, because of the extra work for other judges, registries and bailiffs.", "And what justification and explanation could be given by the lawyer to this client, to whom he had predicted a certain result, with all due caution, only to present a decision by the judge that is diametrically opposed to that which he predicted ?? If that is the result of an error, or a lack of knowledge or commitment or analysis on the part of the lawyer, he should take responsibility for it; but when this depends on the judge, it is damaging to the lawyer because the client will necessarily have a negative opinion of the lawyer ’ s work. Are clients and citizens capable of understanding whether it is the lawyer or the judge who has made a mistake and to what extent?? If the lawyer does not obtain appropriate results with legal argument, what other means are available ?? What must the lawyer do to obtain something to which he is professionally entitled ?? ... Or should the lawyer not make life difficult for himself and carry on regardless, tending to his garden [ il suo orticello ], while protecting his head from any tiles that might fall off the roof – because on the one hand he is not protected and on the other he is at the mercy of another person ’ s discretionary power ?? ... Without any regard for his own professional dignity ?? ...", "When this letter reaches you I will be undergoing a medical operation. I am sorry that, for the time being, I cannot provide any further clarification or explanations to those who may wish them. I am however ready, if necessary, to answer for my conduct and to provide any clarification that may be requested of me after my operation, when I am in a better state of health again. ’ ”", "B. First- instance proceedings", "8. Finding that certain expressions used in the circular letter had impugned his reputation, X filed a criminal complaint for defamation against the applicant.", "9. As X was a judge in Lucca, the file was transferred, under Article 11 of the Code of Criminal Procedure, to the judicial authorities of Genoa.", "10. On 13 February 2003 the Genoa public prosecutor requested that the applicant be committed to stand trial before the court of that city.", "11. X joined the criminal proceedings against the applicant as a civil party.", "12. According to the charge, in the circular letter the applicant had expressed admissible ( lecite ) criticism in so far as he spoke about interpreting and performing the work of a judge, but had then overstepped the limits to his freedom of expression by writing the following sentences in particular :", "(a) “Autonomy ... cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness”.", "(b) “... in a partial manner, perhaps with a display of arrogance, or ... a ruling ... given with total indifference and lack of commitment ”.", "(c) “... the judge ... cannot allow himself not to respect the work of others, including that of the lawyer”.", "(d) “Judges are only human and can make mistakes ... but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence”.", "13. At the hearing of 4 March 2004 the representative of the public prosecutor ’ s office stated that the applicant also had to be charged with proffering insults, given that it transpired from X ’ s statement that he had been one of the recipients of the circular letter.", "14. In a judgment of 3 February 2005, deposited in the court ’ s registry on 11 February 2005, the Genoa District Court convicted the applicant of defamation and proffering insults and sentenced him to four months ’ imprisonment and to the reimbursement of X ’ s court costs ( amounting to 2, 000 euros (EUR)) with reparation for the damage sustained by X. The amount of that damage was to be fixed in separate civil proceedings; the court nevertheless awarded X an advance payment ( provisionale ) of EUR 15, 000.", "15. The District Court observed that it was not in dispute that the applicant had written the circular letter and had asked his secretary to send copies to the judges in the civil divisions of the Lucca District Court. During the proceedings, the applicant had filed pleadings and had made spontaneous statements. His arguments in defence had not, however, made it possible to disregard the offensive nature of the expressions used in the circular letter, exacerbated by the fact that he was a lawyer. In his letter, the applicant had stated that he had the greatest respect for the judiciary and for judges who carried out their duties with “dedication, commitment and decorum”. But he was clearly not talking here about X, who had been accused by the applicant of being arrogant and indifferent, of believing that he was immune because he held a position of power, and of having committed wilful mistakes, by malicious intent, serious misconduct or negligence. Those accusations could be explained not by X ’ s inaction in the handling of a case, but by the decisions taken by X in a case where the applicant ’ s requests had been rejected. Instead of reiterating his legal arguments, the applicant had overstepped the limits of his right to criticism, alleging that X had erred “wilfully”, thus seriously impugning the honour of the judge in question.", "16. According to the District Court, the subject of the accusations contained in the circular letter could only have been X, as shown by similar letters, which expressly referred to that judge, addressed by the applicant and his clients to the CSM, the Ministry of Justice, the National Council of Notaries and the National Bar Council.", "17. The applicant ’ s defence ( esimente ) of provocation (Article 599 of the Criminal Code ) was not accepted. Even supposing that the decisions of X could be regarded as “unfair acts”, the circular letter, sent about four months after those decisions, did not constitute an immediate reaction to them.", "C. Court of Appeal proceedings", "18. The applicant lodged an appeal.", "19. He alleged, among other things, that the offences he was said to have committed were punishable merely by a fine, that the sentence imposed on him had been disproportionate and that the advance he had to pay was excessive. Moreover, in his complaint X had not mentioned that he himself had been a recipient of the circular letter, thus ruling out the charge of proffering insults. The applicant also argued that it could not be seen from the text of the letter that the criticism was directed at X and that this document, when assessed as a whole, was merely a manifestation of his frustrations about the shortcomings of the justice system in general.", "20. Lastly, in the alternative, he took the view that his defence of provocation was valid. He argued that, in the proceedings for the partition of an inheritance, X had on a number of occasions rejected his requests for the suspension of a sale by auction of the flat in question, and that X ’ s decisions had subsequently been overturned by another judge.", "21. At the hearing of 12 March 2007, the applicant stated that it had not been his intention to offend X personally and he produced documents as evidence of his ill-health.", "22. In a judgment of the same day, deposited in the court ’ s registry on 2 April 2007, the Genoa Court of Appeal ruled that no prosecution could be brought on a charge of proffering insults, as there had been no criminal complaint on that ground, and reduced the sentence for the offence of defamation to a fine of EUR 400. It stated that this sentence was fully remitted ( condonata ), and ordered the applicant to make reparation for the damage sustained by X, which it assessed at EUR 15, 000, and to reimburse X ’ s court costs in the appeal proceedings ( EUR 2, 000).", "23. The Court of Appeal observed that, in the first part of his circular letter, the applicant had recounted the tribulations of the partition proceedings in which X had taken the impugned decisions. He had added that he regretted having to make complaints about certain individuals (X and another judge ) whom, even though they had different duties from his own, he regarded as “colleagues”. In addition, the judges of the Lucca District Court, giving testimony in the first-instance proceedings, had had no difficulty in identifying X as the addressee of the criticisms in the circular letter. In those circumstances, the applicant ’ s argument that the letter was merely a manifestation of his discontent about the justice system in general could not be accepted.", "24. In the Court of Appeal ’ s view, the decisions taken by X in the context of the inheritance partition proceedings could, at most, be regarded as “erroneous” but not as “unfair”. The court also pointed out that one of the questions at the heart of the dispute ( the existence of inheritance rights in favour of the partner ) had been settled by the Court of Cassation differently from the applicant ’ s proposed solution. The National Bar Council had in fact noted that the applicant ’ s letters could have been seen as a means of pressure against the judges concerned.", "25. According to the Court of Appeal, the applicant had not expressly challenged the part of the first-instance judgment considering that the expressions contained in the circular letter had overstepped the limits of the right to criticise.", "26. The applicant, who had no criminal record, had to be allowed the benefit of mitigating circumstances, and under Article 52 of Legislative Decree no. 274 of 2000 (see paragraph 32 below ), the penalty for defamation was now a mere fine ( and not a custodial sentence ).", "27. The Court of Appeal observed that the distribution of a letter such as that sent by the applicant, within a small court, could not but impugn the dignity of the judge against whom it was directed and his image as an independent judge. The expressions used by the applicant, outside any procedural act, sought to call into question the professional conduct of X, who was portrayed, within a restricted community, as a partial and soft judge. In the light of those considerations, the Court of Appeal, ruling on an equitable basis, awarded the civil party EUR 15, 000 in non-pecuniary damage.", "D. Appeal on points of law", "28. The applicant appealed on points of law.", "29. He reiterated his grievances and, referring to a particular passage in his grounds of appeal, stated that the Court of Appeal had made a mistake in asserting that the defendant had failed to challenge the finding about the offensive nature of the expressions contained in the circular letter. In any event, the judge had been required, at all stages of the proceedings, to verify of his own motion whether or not the criminal charge in question was made out.", "30. In a judgment of 12 November 2008, deposited in the court ’ s registry on 17 December 2008, the Court of Cassation, finding that the Court of Appeal had given logical and correct reasoning in respect of all the contentious points, dismissed the applicant ’ s appeal on points of law." ]

[ "II. RELEVANT DOMESTIC LAW", "31. Article 595 of the Criminal Code provides for the offence of defamation. The relevant parts of that Article read as follows :", "“ Anyone who ..., in communication with more than one person, offends against the reputation of another, shall be punished by one year ’ s imprisonment or by a fine of up to EUR 1, 032.", "Defamation which consists in imputing a particular fact shall be punished by up to two years ’ imprisonment or by a fine of up to EUR 2, 065.", "Defamation which is disseminated by the press or any other form of publicity, or in a public document, shall be punished by imprisonment of between six months and three years or by a fine of at least EUR 516.", "In the event of defamation against a member of a political, administrative or judicial authority, or one of its representations ..., the sentences shall be increased. ”", "32. Legislative Decree no. 274 of 28 August 2000 ( Article 4 § 1 ( a)) gave jurisdiction to the Justice of the Peace in matters of defamation, among others. Article 52 § 2 ( a) reads as follows :", "“ In respect of ... offences within the jurisdiction of the Justice of the Peace, the sentences shall be converted as follows :", "( a) where the offence is punished by a sentence [ of imprisonment ] as an alternative to that of [ a fine ], a pecuniary sanction ... of between 500, 000 and 5,000, 000 lira shall be applied; if the custodial sentence is higher than a maximum of six months, the applicable sanction shall be the above-mentioned fine, or home detention of between six and thirty days, or a period of community service of between ten days and three months;", "...”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "33. The applicant argued that his conviction for defamation had breached Article 10 of the Convention, which reads as follows :", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "34. The Government challenged that argument.", "A. Admissibility", "35. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The applicant", "36. The applicant submitted that he had been convicted on account of a letter in which he had set out his thoughts on the different ways of interpreting and exercising the duties of a judge. His assessments had not been interpreted in line with their real meaning and had been connected to a subject, X, who was not the actual target. According to the applicant, there was no evidence that he intended to impugn the reputation and integrity of X. Moreover, the anomaly in the Italian justice system whereby judges were not de facto accountable for their conduct had been underlined by many European decisions, by books and by websites. It was the court system as a whole, and not X, which had been the target of the applicant ’ s criticism.", "37. The applicant further observed that Genoa District Court had given him a custodial sentence not prescribed by law, and that although he had no criminal record he had not been granted general mitigating circumstances ( attenuanti generiche ). The applicant alleged that he had sent his circular letter to a number of judges at Lucca District Court solely to avoid undermining the reciprocal relationships of friendship and esteem between him and those judges, and to protect himself against any distortion of the content of his letter to the CSM. He also stated that the conduct of X, who had refused any attempt to reach a friendly settlement to the dispute, had been driven by feelings of animosity towards him.", "( b) The Government", "38. The Government took the view that the interference with the applicant ’ s right to freedom of expression pursued the legitimate aims of the protection of the “reputation or rights of others” and of the “authority and impartiality of the judiciary”. They argued that it was also necessary in a democratic society, because the expressions used by the applicant in his circular letter had been offensive and had sought to denigrate X, who had been accused, in substance, of deliberately and knowingly taking an unfair decision, and of being arrogant, lacking in commitment and indifferent. X had thus been portrayed negatively and as a judge who showed total disregard for the fundamental ethical principles of his profession.", "39. In the Government ’ s opinion, the applicant ’ s attitude could not be justified in the light of the judicial disagreement which lay behind his animosity towards X. In addition, the Court of Appeal had acknowledged the existence of mitigating circumstances in the applicant ’ s favour and reduced the amount of the sanction imposed on him at first instance.", "40. In the light of the foregoing, the Government took the view that in sentencing the applicant, the domestic courts, which were better placed than the international court to assess the facts and the necessity of the interference, had not overstepped their margin of appreciation in such matters. If there had been a violation of the Convention, it had been committed by the applicant, who had unduly impugned the reputation of X, protected as it was by Article 8.", "2. The Court ’ s assessment", "( a) Whether there has been an interference", "41. It is not in dispute between the parties that the applicant ’ s conviction constituted an interference with his right to freedom of expression under Article 10 § 1 of the Convention ( see, mutatis mutandis, Belpietro v. Italy, no. 43612/10, § 43, 24 September 2013).", "( b) Whether the interference was justified : “prescribed by law” and “legitimate aim”", "42. An interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims ( see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 67, ECHR 2004-XI, and Ricci v. Italy, no. 30210/06, § 43, 8 October 2013 ).", "43. It is not in dispute that the interference was prescribed by law, namely by Article 595 of the Criminal Code ( see paragraph 31 above ) and Article 52 § 2 ( a) of Legislative Decree no. 274 of 2000 ( see paragraph 32 above ). The applicant ’ s conviction pursued the legitimate aim of protecting the reputation and rights of another, in this case those of X ( see, mutatis mutandis, Nikula v. Finland, no. 31611/96, § 38, ECHR 2002-II; Perna v. Italy [GC], no. 48898/99, § 42, ECHR 2003-V; Ormanni v. Italy, no. 30278/04, § 57, 17 July 2007; and Belpietro, cited above, § 45). It also had the aim of “maintaining the authority and impartiality of the judiciary”, of which X, a judge, was a member ( see, for example and mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, § 168, ECHR 2005-XIII; Foglia v. Switzerland, no. 35865/04, § 83, 13 December 2007; July and SARL Libération v. France, no. 20893/03, § 59, ECHR 2008; and Di Giovanni v. Italy, no. 51160/06, § 74, 9 July 2013 ).", "44. It remains to be ascertained whether the interference was “necessary in a democratic society”.", "( c) “Necessary in a democratic society”", "( i ) General principles", "45. In order to determine whether the interference was “necessary in a democratic society”, the Court must ascertain whether it met a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by Article 10 ( see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001 ‑ VIII; and Stoll v. Switzerland [GC], no. 69698/01, § 101, ECHR 2007-V).", "46. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they have delivered pursuant to their power of appreciation ( see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State has exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the remarks held against the applicant and the context in which they were written ( see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I).", "47. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference are “relevant and sufficient” and whether the interference was “proportionate to the legitimate aims pursued” ( see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). In so doing, the Court has to satisfy itself that the national authorities, basing their decisions on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 ( see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII; De Diego Nafría v. Spain, no. 46833/99, § 34, 14 March 2002; and Pedersen and Baadsgaard, cited above, § 70).", "48. In order to assess the justification for a given statement, it is necessary to distinguish between statements of fact and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof ( see Oberschlick v. Austria ( no. 2), 1 July 1997, § 33, Reports 1997-IV) and in such cases a requirement to provide proof is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 ( see Morice v. France [GC], no. 29369/10, § 155, ECHR 2015). The characterisation of remarks as statements of fact and value judgments falls primarily within the ambit of the margin of appreciation afforded to national authorities, in particular the domestic courts ( see Prager and Oberschlick v. Austria, 26 April 1995, § 36, Series A no. 313). However, even where a statement amounts to a value judgment, it must have a sufficient factual basis to support it, otherwise it may be excessive ( see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II, and Ormanni, cited above, § 64).", "49. In addition, the existence of procedural safeguards for the benefit of a defendant in defamation proceedings is among the factors to be taken into account in assessing the proportionality of an interference under Article 10. In particular, it is important for the defendant to be afforded a realistic chance to prove that there was a sufficient factual basis for his allegations ( see, inter alia, Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR 2005-II; Hasan Yazıcı v. Turkey, no. 40877/07, § 54, 15 April 2014; and Morice, cited above, § 155).", "50. A particular aspect of the present case is that, at the material time, the applicant was a lawyer and his dispute with X had arisen in the context of his professional activity. In its Nikula judgment ( cited above, § 45; see also Steur v. the Netherlands, no. 39657/98, § 36, ECHR 2003-XI, and Fuchs v. Germany (dec.), nos. 29222/11 and 64345/11, § 39, 27 January 2015), the Court summarised as follows the specific principles applicable to the legal professions :", "“The Court reiterates that the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Moreover, the courts – the guarantors of justice, whose role is fundamental in a State based on the rule of law – must enjoy public confidence. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports of Judgments and Decisions 1998-III, pp. 1052-53, §§ 29-30, with further references).”", "51. In addition, in the case of Morice ( cited above, §§ 134 and 139), the Court observed that: ( a) lawyers are entitled to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds in order to protect the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling a particular case; ( b) lawyers cannot make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis; and ( c) remarks by lawyers must be assessed in their general context, in particular to ascertain whether they can be regarded as misleading or as a gratuitous personal attack, and to ensure that the expressions used had a sufficiently close connection with the facts of the case.", "52. It is also necessary to take into account that the defamed party, X, was a serving member of the judiciary. According to the Court ’ s case-law, the limits of acceptable criticism may in some circumstances be wider with regard to judges acting in their official capacity than to ordinary citizens ( see Morice, cited above, § 131). However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks in the course of their duties ( see Janowski, cited above, § 33, and Nikula, cited above, § 48).", "53. It should lastly be reiterated that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference ( see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-115, ECHR 2004-XI).", "( ii ) Application of those principles to the present case", "54. The Court notes at the outset that the applicant argued, both before it ( see paragraph 36 above ) and before the domestic courts ( see paragraph 19 above ), that the criticisms in his circular letter were not directed at X but at the Italian judicial system as a whole. The Court cannot agree with this argument. It observes in this connection that the letter in question ( see paragraph 7 above ) contained express references to the letter that the applicant had sent to the CSM to complain about the conduct of X, and that passages from that letter had been quoted in extenso. In addition, the applicant summed up the main aspects of the judicial dispute in the context of which, according to him, X had taken unfair decisions, of which the reasons were briefly set out.", "55. The applicant ’ s circular letter was divided into two parts : the first part contained an account of the decisions taken in the partition procedure; the second contained considerations on behaviour from which judges should refrain and its consequences. In the Court ’ s view, even though the second part of the letter was drafted in the form of “general considerations”, it can be interpreted only as a criticism of the conduct of the judge, X, who, without being expressly mentioned is the protagonist in the account which constituted the “premise” of the applicant ’ s observations and assessments.", "56. In those circumstances, the Court shares the findings of the District Court and the Genoa Court of Appeal ( see paragraphs 16 and 23 above ) according to which X was certainly the subject of the grievances set out in the circular letter. It remains to be determined whether the remarks in question overstepped the bounds of admissible criticism in a democratic society.", "57. It can be seen from the text of the circular letter ( see paragraph 7 above ), that in substance the applicant reproached X on two accounts : ( a) for taking unfair and arbitrary decisions, and ( b) for being a “biased” judge and for having “wilfully made mistakes, by malicious intent, serious misconduct or negligence”.", "58. In the Court ’ s view, the first criticism amounts to a value judgment as to the nature and legal basis of the decisions taken by X. As indicated in paragraph 48 above, according to the Court ’ s case-law the truth of such opinions is not susceptible of proof. Moreover, they had a certain factual basis. In particular, the applicant had been the representative of one of the parties to judicial proceedings for the partition of an inheritance. In the context of those proceedings, the applicant had on a number of occasions sought to have the sale of a flat suspended, and his requests had been dismissed by X on the basis of reasoning which, according to the applicant ’ s subjective opinion, was erroneous and contrary to the law.", "59. The Court, therefore, cannot consider the first criticism to be excessive ( see, mutatis mutandis, Morice, cited above, §§ 156- 61, where the Court found that criticisms made by the lawyer acting for the civil party about the conduct of the investigating judges during the judicial investigation were value judgments with a sufficient factual basis ).", "60. The same cannot be said, however, when it comes to the second criticism, namely that X was a “biased” judge who had “wilfully made mistakes, by malicious intent, serious misconduct or negligence”. This criticism implied that X had disregarded the ethical obligations inherent in the duty of a judge, or even that she had committed a criminal offence. The adoption by a judge of a deliberately erroneous decision could constitute an abuse of authority. In any event, the circular letter alleged that X did not have the qualities of impartiality, independence or objectivity – qualities which characterise the exercise of judicial activity. However, the applicant never sought to prove the veracity of the conduct attributed to X and adduced no evidence to show any malicious intent in the decisions that he contested. In the Court ’ s view, his allegations of misconduct on the part of X were based only on the fact that the judge had dismissed the claims he had submitted in the interest of his clients ( contrast Morice, cited above, §§ 156- 61). It is also noteworthy that the applicant, who had referred a complaint against judge X ( see paragraph 6 above ), sent out his circular letter without waiting for the outcome of the CSM proceedings.", "61. In defending himself before the domestic courts, the applicant merely argued that his criticisms had not been directed at X in person ( see, mutatis mutandis, Perna, cited above, §§ 44-47, and Fuchs, decision cited above, § 41; see also, by contrast, Nikula, cited above, § 51, where the Court observed that the applicant ’ s criticisms had only concerned the manner in which a public prosecutor had discharged his duties in a given court case, and not any professional or other qualities of the prosecutor in question). The Court, however, has already dismissed that argument ( see paragraphs 54-56 above ).", "62. The Court also takes account of the context in which the circular letter was written and distributed. In this connection it would first note that the applicant ’ s criticisms were not made at the hearing or in the course of the judicial proceedings for the partition of an inheritance. In that sense the present case can be distinguished from Nikula, cited above ( see, in particular, paragraph 52), where the Court found a violation of Article 10 of the Convention.", "63. The Court further observes that, outside the judicial procedure, the applicant sent his circular letter to X in person ( see paragraph 13 above ) and to many other judges at the Lucca District Court ( see paragraph 6 above ). As the Genoa Court of Appeal rightly observed ( see paragraph 27 above ), the distribution of the letter within a small community, such as that of a local court, would inevitably harm the reputation and professional image of the judge concerned.", "64. Lastly, the Court notes that, while it is true that at first instance the applicant was given a custodial sentence, without the benefit of mitigating circumstances in view of his clean criminal record, that sanction was replaced on appeal by a small fine of EUR 400, which, moreover, was declared fully discharged ( see paragraph 22 above ). In addition, that mitigation was applied by the judges at second instance ( see paragraph 26 above ) and the amount of the compensation awarded to X ( EUR 15, 000) cannot be regarded as excessive.", "65. The Court would further observe that, in cases such as the present one, which call for a fair balance to be struck between the right to respect for private life and the right to freedom of expression, it takes the view that the adjudication of the application should not in principle vary depending on whether it has been lodged under Article 8 by the person criticised or under Article 10 by the author of the criticism. The two rights merit, in principle, equal respect ( see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Accordingly, the margin of appreciation should, in principle, be the same in both cases. If the striking of a balance by the domestic courts is consistent with the criteria established by the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011, and MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 8 January 2011). In the Court ’ s view, there are no such reasons in the present case ( see, mutatis mutandis, Di Giovanni, cited above, § 82).", "66. Having regard to the foregoing, the Court finds that the applicant ’ s conviction for the defamatory remarks contained in the circular letter and the sanction imposed on him were not disproportionate to the legitimate aims pursued and that the grounds given by the national courts were relevant and sufficient for the purposes of justifying those measures. The interference with the applicant ’ s right to freedom of expression was “necessary in a democratic society” in order to protect the reputation of others and to maintain the authority and impartiality of the judiciary within the meaning of Article 10 § 2.", "67. It follows that there has been no violation of Article 10." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1974 and lives in Paris.", "6. The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code.", "7. In 2000 the domestic security and intelligence agency ( Direction de la surveillance du territoire – the “ DST ” ) sent an intelligence report to the Paris public prosecutor ’ s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003.", "8. On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S. A.", "9. From 2 to 7 May 2004, one of the investigating judges, M. B., accompanied by members of the DST, went to Damascus for the execution of the letter of request.", "10. During the questioning S.A. was allegedly tortured.", "11. On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004.", "12. By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “ except where they could not have been aware of [those grounds] ”.", "13. Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “ confession ” of S. A. , the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “ complicity on the part of the French investigating judges in the use of torture against S. A. in Syria by military personnel of the secret service ” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below).", "14. In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years ’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows:", "“Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M. B ., investigating judge (First Vice- President ) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S. A. ‘ had already been questioned on 30 April and 2 May 2004 ’ and that ‘ his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded ’.", "However, the judge stressed that he had ‘ not been allowed to participate in the questioning of S.A. but only to follow it in real time ’. On 4 and 5 May the questioning thus continued under the same conditions as the day before.", "For his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present.", "When presented to that judge on 17 June 2004 he indicated that he was ‘ tired ’, that he ‘ wished to see a doctor immediately ’, and that he was ‘ worried about his wife and daughter ’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation.", "As a result, the French investigating judge was not able to exercise any real control over the conditions in which S. A. was interrogated in Syria, even though he was being held in the ‘ Palestine Section ’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported.", "It is therefore almost certain that the admissions or ‘ confession ’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants.", "Accordingly, S.A. ’ s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file .”", "15. S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows :", "“Page 25: ‘ it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus. ’", "Page 47: ‘ the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture. ’", "Page 68, paragraph entitled : ‘ Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services ’.", "Page 69: ‘ The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture. ’", "Page 70: ‘ the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked : it encourages torture. ’ ”", "16. In a judgment of 22 May 2007 the Court of Appeal upheld S.A. ’ s conviction and sentenced him to ten years ’ imprisonment, after excluding the documents in question: “the defendant ’ s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant ’ s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S. A. ( see p. 68 et seq. of the pleadings ) ”.", "17. In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter.", "18. In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant ’ s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters.", "19. In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S. A. ’ s lawyers, executed with astonishing speed”. It thus found that “ it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point ..., and on the protection under Article 10 of the Convention of the lawyer ’ s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002- II), it pointed out that the applicant ’ s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution.", "20. On 3 October 2008 the Principal Public Prosecutor appealed against that decision.", "21. In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers ’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A. ’ s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “ had visibly sought to ‘ do as he pleased ’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal) ”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “ there was no need for [the applicant], in the interest of S. A. , to claim without any proof that the French investigating judges had been complicit in the torture of S. A .”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation.", "22. The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client ’ s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture.", "23. In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant ’ s appeal on points of law, it was rejected in the following terms :", "“However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client ’ s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...”", "..." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "31. The applicant complained that the disciplinary penalty imposed on him was incompatible with Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "...", "B. Merits", "1. The parties ’ submissions", "33. The applicant justified the forcefulness of his defence by the unreasonableness of the French authorities ’ request to the Syrian authorities to question S.A., thus clearly exposing the latter to torture. He emphasised that the Government had made no mention of any effort by the prosecuting or investigating authorities to prevent such acts of torture or to ensure that those acts would not have any effect on the French proceedings. They could have ( 1) requested the suspect ’ s extradition, or ( 2) referred the matter to the Investigation Division with a view to having the relevant statements excluded from the file under Article 173 of the Code of Criminal Procedure ... In that context he indicated that he had been in a difficult situation, since the committal decision was supposed to have removed all such defects from the previous proceedings. In that connection he observed that the public prosecutor had failed to react to his remarks before the trial court.", "34. The applicant argued that the offending remarks, and in particular the use of the word “complicity”, had to be placed in their context and were dominated by the denunciation of an unacceptable lack of intervention. In addition, a number of points warranted particular attention : ( 1) the origin of the disciplinary offence lay in written pleadings submitted before the criminal courts and not in public remarks made outside the courtroom; ( 2) the forceful criticisms, of a systemic nature, did not refer to the judges ’ names and were strictly part of a debate in the general interest geared towards the defence of S.A.; and (3) the judiciary itself had not been impugned, as the criticism of the public prosecutor ’ s office or the judicial investigation had not been directed at the trial courts themselves.", "35. The applicant took the view that the option of disciplinary proceedings did not meet any compelling need. The authorities could have used other, less harmful means to limit his freedom of expression, such as a request by the public prosecutor for the redacting of any remarks in his pleadings considered irrelevant to the defence of S.A. or proceedings brought by the investigating judges for defamation or insult under the press legislation. He observed that the trial courts had, moreover, noted the excessive nature of the defence and that this assessment could have been regarded as sufficient without extending the matter to the disciplinary plane. He concluded by pointing out that to be found to have impugned the honour of judges had severe repercussions on a lawyer ’ s career and was a disproportionate sanction.", "36. The Government did not dispute the fact that there had been an interference. They argued that it was prescribed by law, namely by the decree of 27 November 1991 organising the legal profession, and that it pursued the legitimate aim of protecting the reputation or the rights of others; in addition, the proceedings against the applicant had been such as to “maintain the authority and impartiality of the judiciary”. Further, the interference had met a pressing social need and had been proportionate to the aims pursued.", "37. The Government took the view that it had not been necessary for the defence of S.A. to make derogatory comments about the judges concerned. They considered that the attacks had been pointless and gratuitous and that the applicant could have simply submitted that the prohibition of torture was absolute.", "38. In the Government ’ s submission, the content of the statements could not merely be regarded as a lack of regard for the authorities concerned; they were in reality capable of undermining public confidence in the justice system ( contrast Foglia v. Switzerland, no. 35865/04, § 95, 13 December 2007, and the judgments cited ). The allegations of complicity in torture had thus been directed personally against the judges, who could be recognised and identified even though not named, and had impugned their respectability, their moral integrity and their professional and ethical qualities. The remarks were dishonourable as they related to particularly serious criminal offences carrying severe penalties. The applicant was precluded, in the Government ’ s opinion, from minimising the meaning of his remarks and defining the alleged complicity in torture as a mere lack of curiosity on the part of the judges concerned: the comment that they had “promoted torture ” referred to the idea of active complicity, as found by the Paris Court of Appeal.", "39. The Government emphasised that the impugned remarks, contained as they were in the applicant ’ s pleadings, had been the result of careful consideration and not of a fit of anger or the sort of sudden immoderate language that could be heard in the occasional vociferous exchanges during court proceedings.", "40. The Government added that such exchanges certainly did not allow disrespectful remarks to be directed against investigating judges, who were not parties to the criminal proceedings ( unlike prosecutors – they referred to Nikula, cited above, § 52). They argued that the immunity of lawyers in respect of their pleadings was not absolute : it did not entail disciplinary immunity and did not obviate the need to use prudent language.", "41. The Government further noted the lack of basis of the impugned statements, which amounted to value judgments. They did not dispute the veracity of the factual information about the acts of torture, but took the view that the subjective conclusions as to the judges ’ implication in the commission of those acts were inadmissible; the Criminal Court had pointed out that M.B. had not been authorised to participate in S.A. ’ s interviews in Syria.", "42. The Government concluded that the impugned remarks had constituted attacks on judges which could endanger the dispassionate conduct of judicial proceedings, without regard for the essential principles of tactfulness and moderation that lawyers, on taking the oath, undertook to uphold. They were of the opinion that, in view of the gravity of those accusations, a disciplinary sanction, which was less of a deterrent than a criminal sanction, appeared proportionate.", "2. The Court ’ s assessment", "( a) General principles", "43. The Court refers to the general principles concerning freedom of expression as set out in Morice v. France ( [GC], no. 29369/10, §§ 124 - 27, 2 3 April 2015 ).", "44. In terms, more specifically, of maintaining the authority of the judiciary, the Court has emphasised that regard must be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, the judiciary must enjoy public confidence if they are to be successful in carrying out their duties. It may therefore prove necessary to protect such confidence against gravely damaging attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying. Nevertheless – save in the case of such attacks – judges may, when acting in their official capacity, be subject to wider limits of acceptable criticism than ordinary citizens ( see Morice, cited above, §§ 128 and 131, and Peruzzi v. Italy, no. 39294/09, § 52, 30 June 2015).", "45. Freedom of expression is applicable also to lawyers. It encompasses not only the substance of the ideas and information expressed but also the form in which they are conveyed. Lawyers are thus entitled, in particular, to comment in public on the administration of justice, provided that their criticism does not overstep certain bounds. The usual rules of conduct imposed on members of the Bar, particularly as regards “dignity, honour or integrity” or “ respect for the fair administration of justice”, contribute to the protection of the judiciary from gratuitous and unfounded attacks, which may be driven solely by a wish or strategy to ensure that the judicial debate is pursued in the media or to settle a score with the judges handling a particular case. The question of freedom of expression is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice. It is only in exceptional cases that restriction – even by way of a lenient criminal sanction – of defence counsel ’ s freedom of expression can be accepted as necessary in a democratic society ( see Morice, cited above, §§ 134 - 35).", "46. It is nevertheless appropriate to distinguish between the expression of lawyers inside and outside the courtroom. As regards “conduct in the courtroom”, which is the relevant aspect in the present case, only those remarks which exceed what is permitted by the exercise of defence rights would legitimise restrictions on the freedom of expression of lawyers. The Court would refer to paragraph 137 of the Morice judgment, which reiterates the terms of the Nikula judgment ( cited above ) :", "“§ 137 ... since the lawyer ’ s freedom of expression may raise a question as to his client ’ s right to a fair trial, the principle of fairness thus also militates in favour of a free and even forceful exchange of argument between the parties ... Lawyers have the duty to ‘ defend their clients ’ interests zealously ’ ..., which means that they sometimes have to decide whether or not they should object to or complain about the conduct of the court ... In addition, the Court takes into consideration the fact that the impugned remarks are not repeated outside the courtroom and it makes a distinction depending on the person concerned; thus, a prosecutor, who is a ‘ party ’ to the proceedings, has to ‘ tolerate very considerable criticism by ... defence counsel ’, even if some of the terms are inappropriate, provided they do not concern his general professional or other qualities ...”", "In the Nikula judgment ( cited above, §§ 51 and 52), the Court took the view that remarks made by a lawyer during the hearing did not constitute personal insults, but criticisms directed at the prosecution strategy which were “of a procedural character”. More recently, in the case of Kincses v. Hungary ( no. 66232/10, §§ 33 and 37, 27 January 2015, and see all the cases cited therein ), the Court reiterated that a clear distinction must be made between criticism and insult ( see also Wingerter v. Germany (dec.), no. 43718/98, 21 March 2002, and Fuchs v. Germany (dec.), nos. 2922 2 /11 and 64345/11, 27 January 2015, concerning a judgment against a lawyer for defamatory remarks made against an expert for the prosecution ).", "47. Lastly, the Court would point out that it has previously found that ex post facto review of remarks made by a lawyer in the courtroom is difficult to reconcile with defence counsel ’ s duty to defend their clients ’ interests zealously and could have a “chilling” effect on the practise of the legal profession ( see Nikula, cited above, § 54; Steur v. the Netherlands, no. 39657/98, § 44, ECHR 2003 ‑ XI; and, mutatis mutandis, Roland Dumas v. France, no. 34875/07, § 48, 15 July 2010).", "( b) Application of those principles to the present case", "48. The impugned judgment against the applicant can be regarded as an “interference” with his right to freedom of expression, as the Government acknowledge. Such an interference will breach Article 10 of the Convention, unless it is “prescribed by law”, pursues one or more of the legitimate aims listed in paragraph 2 of Article 10, and is “necessary in a democratic society” in order to fulfil the said aim or aims.", "49. It is not in dispute between the parties that the interference was prescribed by law, namely by the legislation organising the legal profession ... They also agree that the aim of the interference was the protection “of the reputation or rights of others”. The Government were of the view that it also had the aim of maintaining the authority and impartiality of the judiciary. The Court, like the Government, finds that the proceedings brought against the applicant also pursued the legitimate aim of protecting the “authority of the judiciary”, to which the investigating judges belonged.", "50. The Court must further examine whether that interference was necessary in a democratic society, thus requiring it to ascertain whether it was proportionate to the legitimate aim and whether the reasons given by the domestic courts were relevant.", "51. The Court notes that the impugned remarks, on account of their virulence, were clearly insulting for the investigating judges. It reiterates that the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers ( see Morice, cited above, § 170). The Court finds in this connection, as did the Paris Court of Appeal ( see paragraph 21 above ), that the applicant ’ s conclusions accusing the investigating judges of being complicit in torture were not necessary for the pursuit of his stated aim, namely to have the statements taken from S.A. under torture excluded from the evidence, especially as the first-instance court had already accepted that request ( see paragraph 14 above ). Nevertheless, it must be ascertained whether the disciplinary sanction imposed on the applicant by the Paris Court of Appeal, as upheld by the Court of Cassation, struck a fair balance between courts and lawyers in the context of a fair administration of justice.", "52. The Court observes that the impugned remarks had been made in a judicial context, because they had been transmitted in writing when the applicant submitted his pleadings before the Paris Court of Appeal. They were part of his efforts to obtain, before addressing the merits of the case, the exclusion by that court of the statements that had been taken from his client under torture in Syria. The Court notes that the passages identified as offensive by the public prosecutor were not directed at the investigating judges by name but concerned the manner in which they had conducted the investigation. In particular, the applicant had complained about the choice of issuing an international letter of request when the judges should have known that interrogations by the Syrian secret service were conducted without regard for human rights and more specifically in breach of Article 3 of the Convention. The Court took the view that this “accusation” concerned the procedural choice of the judges. The Court finds, moreover, that the national courts did uphold the request to exclude evidence obtained in violation of Article 3 of the Convention ( see, for example, Gäfgen v. Germany [GC], no. 22978/05, §§ 107-108, ECHR 2010) whereas that cause of exclusion had not been raised during the judicial investigation, neither by the judges themselves nor by the public prosecutor ( see paragraphs 12 ... above ). In that procedural context, the Court found that the impugned pleadings directly contributed to the applicant ’ s task of defending his client, to ensure that the case file going forward would be “cleansed” of any inadmissible evidence.", "53. The Court agrees with the Government ’ s characterisation of the remarks, which were more like value judgments, as they mainly consisted in an overall assessment of the conduct of the investigating judges during the judicial investigation. It takes the view, however, that the remarks did have some factual basis. It notes that while the judge M.B. was not able to take part in the interviews, he followed them in real time, in Damascus, on the basis of the list of questions contained in the international letter of request and the supplementary questions to which he wished to have answers, in addition to those already recorded ( see paragraph 14 above ). Moreover, the Court observes that the methods of the Syrian police were notorious, as shown by the witness statements adduced in the Criminal Court in the present case and also by all the international reports on this subject ( see, for example, Al Husin v. Bosnia and Herzegovina, no. 3727/08, §§ 40 - 43, 7 February 2012).", "54. The Court further finds that the applicant ’ s criticisms remained inside the “courtroom”, because they were contained in written pleadings. They were not therefore capable of undermining or threatening the functioning of the justice system or the reputation of the judiciary among the general public. It observes in this connection that the Paris Court of Appeal and the Court of Cassation failed to take this contextual element into account ( contrast Fuchs, cited above, § 42) and did not give consideration to the limited audience to which the remarks had been addressed.", "55. Having regard to the foregoing, the Court is of the view that the disciplinary sanction imposed on the applicant was not proportionate. In addition to the negative repercussions of such a sanction on the professional career of a lawyer, the Court finds that any ex post facto review of offending oral or written submissions on the part of a lawyer must be implemented with particular prudence and moderation. While it is certainly the task of the judicial and disciplinary authorities, in the interest of the smooth operation of the justice system, to take note of, and even occasionally to penalise, certain conduct of lawyers, they must ensure that such review does not constitute for the latter a threat with a “chilling” effect that would harm the defence of their clients ’ interests. Thus, in the present case, the President of the Division of the Court of Appeal which examined the case of the applicant ’ s client had already, at the hearing, invited the applicant to moderate his remarks, and then, deeming them excessive, the Division had indicated in the operative part of its judgment that it dismissed the relevant submissions on the ground that the remarks were dishonourable ( see paragraph 16 above ). Finding this warning to be sufficient, the judges had not considered it appropriate to ask the Principal Public Prosecutor to refer the matter to the disciplinary bodies. It was only several months after the filing of the impugned pleadings in the Court of Appeal, and after that court ’ s judgment, that the said prosecutor initiated disciplinary proceedings. In the light of all the circumstances of the present case, the Court finds that by going beyond the firm and dispassionate position of the Court of Appeal and imposing a disciplinary sanction on the applicant, the authorities excessively undermined the lawyer ’ s task of defending his client.", "56. In conclusion, the Court finds that there has been a violation of Article 10 of the Convention on account of the disproportionate nature of the sanction imposed on the applicant.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1955 and lives in Lunel.", "6. The applicant, a lawyer at the Montpellier Bar since 1978, acted for M.B., who was a civil party in the context of a judicial investigation opened in Nîmes following the death of his minor son. The latter was killed on the night of 2 March 2003 by F.C., a gendarme who used his firearm.", "7. In an indictment and partial discharge order of 26 June 2007 the investigating judge committed F.C. for trial before the Gard Assize Court on a charge of manslaughter. The investigating judge did not accept as justification either self-defence within the meaning of Articles 121 or 122 of the Criminal Code, or the use of firearms in accordance with the legislation or regulations under Article 174 of the Decree of 20 March 1903 ( see, as regards those provisions, Guerdner and Others v. France, no. 68780/10, §§ 37 and 41 et seq., 17 April 2014). The judge also committed two of F.C. ’ s colleagues for trial before the Assize Court for having lied in their statements to him, given under oath.", "8. On 26 November 2007 the Investigation Division of the Nîmes Court of Appeal upheld the order but ordered that the two gendarmes charged with giving false testimony stand trial before the Nîmes Criminal Court rather than the Assize Court.", "9. The trial at the Assize Court began on 28 September 2009 and lasted for five days. The advocate-general requested a five-year prison term for the accused. It is not clear from the information available to the Court whether or not the sentence was to be suspended.", "10. In a judgment of 1 October 2009 the Assize Court acquitted F.C.", "11. Immediately after the verdict, at the exit from the courtroom, the journalists reporting on the case for, among others, France Bleu, RTL and the Midi Libre put questions to the parties ’ lawyers, and in particular to the applicant. Some of the coverage was streamed live on the Internet. The applicant first stated as follows:", "“ ... the verdict is received by the victims and by the community to which they belong, it is patently obvious that this is disastrous in terms of social peace.”", "12. Asked by one journalist whether it was a “licence to kill”, he replied as follows:", "“Well, I ’ m not sure you can say that. It ’ s not necessarily a licence to kill. It ’ s a refusal to face up to the reality in this country and to the existence of a two-speed society; not just a two-speed justice system, but actually a two-speed society at all levels. People are living in tower blocks cut off from city centres. For some, prosecution ends in conviction while others are acquitted. The entire social system needs to be revamped: we ’ ve turned into a real American-style society which is on the brink of civil war.”", "13. When asked by an RTL journalist “But weren ’ t you expecting this verdict? Without really commenting on the verdict, weren ’ t you afraid this would happen? ”, the applicant made the following statement:", "“ Yes, of course. I always knew it was a possibility. With a white – all-white – jury on which not all communities are represented, combined with, let ’ s face it, a very weak prosecution and a trial that was conducted in an extremely biased fashion, the door was wide open for an acquittal, it ’ s no surprise.”", "14. These last remarks were the subject of a letter from the Principal Public Prosecutor at the Montpellier Court of Appeal, dated 6 October 2009, to the chairman of the Montpellier Bar, seeking the latter ’ s opinion “in view of the outcry caused by this statement in judicial circles in Nîmes”.", "15. On 1 December 2009, after the chairman of the Bar had found that the applicant ’ s remarks were not offensive and did not go beyond the bounds of free criticism of a court decision, the Principal Public Prosecutor informed him of his decision to initiate disciplinary proceedings against the applicant under Article 188 of the Decree of 27 November 1991 on the organisation of the legal profession (see paragraph 29 above).", "16. On 11 January 2010 the applicant gave evidence to the rapporteur of the Montpellier Bar Council. In particular, he stressed the need to put his remarks in context, as this was a sensitive case that had led to rioting in the working - class district where the victim had lived. He highlighted the length of the investigation, the fact that the gendarme had not been held in pre-trial detention and the disjoinder of the proceedings for false testimony concerning members of the gendarmerie patrol present on the day of the events, as well as the tensions during the five days of the hearing before the Assize Court. He denied making an accusation of racial and xenophobic bias, arguing that he had merely noted the absence of certain communities making up the French nation, in whose name criminal justice was administered. He added that he had not targeted the Assize Court, the prosecution or the defence.", "17. The President of the Assize Court and the advocate -general who had participated in the proceedings refused a request from the rapporteur to hear evidence. However, the rapporteur was able to hear evidence from one of the lawyers for the acquitted gendarme, Mr N.-P. The latter confirmed the atmosphere of heightened pressure and tension throughout the trial, which had also been experienced by the lawyers of the civil parties. He observed that when the verdict had been delivered there had been a tremendous outcry, with the cameramen rushing to capture the scene. All the lawyers had been very emotional and the applicant had no doubt used an unfortunate turn of phrase, intending only to point to the lack of representation of certain communities in the criminal - justice system.", "18. In parallel, in a judgment of 1 March 2010, the Nîmes Criminal Court sentenced the other two gendarmes to a one-month suspended term of imprisonment and a fine of 1,000 euros (EUR) for giving false testimony under oath. The court noted in particular that the false statements had been repeated over time, including before the investigating judge, and had been liable to influence the judge ’ s decision in that they concerned essential circumstances pertaining to the charges or at least circumstances of relevance to the case.", "19. On 19 March 2010 the rapporteur sent her disciplinary investigation report to the chairman of the disciplinary board, the chairman of the Bar and the Principal Public Prosecutor.", "20. On 2 April 2010 the applicant was summoned to appear before the disciplinary board on the basis of Article 183 of the above-mentioned Decree of 27 November 1991 (see paragraph 29 below), “for having, in the public lobby outside the courtroom of the Nîmes Court of Appeal, seriously breached the essential ethical principles of the legal profession, and specifically those of discretion and moderation, by publicly making the following comments accusing the court and jury of racist and xenophobic bias”.", "“I always knew it was a possibility. With a white – all-white – jury on which not all communities are represented ..., the door was wide open for an acquittal, it ’ s no surprise.”", "21. The disciplinary board of the Bar associations attached to the Montpellier Court of Appeal, sitting in plenary session, held its hearing on 21 May 2010. Reiterating his statements, the applicant relied in particular on Article 10 of the Convention, arguing that his remarks had been made in the context of the defence of his client ’ s interests as a civil party and within the ten-day period during which the Principal Public Prosecutor could appeal against the acquittal.", "22. On 11 June 2010 the disciplinary board delivered its decision. It found that the applicant ’ s conduct had not been culpable and acquitted him. The disciplinary board considered that the remarks had to be placed in the dual context of the full statement and the circumstances in which they had been made. The words “a white – all-white – jury” had been supplemented by “ on which not all communities are represented”, and had not accused the jury of racial or xenophobic bias but, together with other factors, had stated the obvious truth that “ the social background of jurors contribute [d], even unconsciously and without their integrity and intellectual honesty being in question, to their decision, which necessarily ha [d] an element of subjectivity ”. The disciplinary board stressed that the statements had been devoid of personal animosity and had reflected “ ideas, opinions and information apt to contribute to a discussion or debate of public interest ... as part of a broader commentary on the decision of the Assize Court ... ”; this came “ within the scope of protection of the right to freedom of expression under Article 10 of the Convention ”. The disciplinary board further considered that the impugned statements had formed part of the defence of the interests of the applicant ’ s client, since only the Principal Public Prosecutor could appeal against the acquittal verdict. They had therefore been intended “ to stimulate a public debate apt to influence the Principal Public Prosecutor ’ s thinking ... and his decision whether or not to appeal against that verdict ”. Lastly, the disciplinary board noted that the statements had been “ made orally ... during an on-screen interview. In the interests of efficiency and given the brevity of the broadcasts and the speaking time, it [had been] necessary to use concise or even ‘ shocking ’ and caricaturised language ”.", "23. The Principal Public Prosecutor appealed against the disciplinary board ’ s decision. He requested that the applicant be barred from practising for three to six months.", "24. In his pleadings before the Court of Appeal the applicant argued that his remarks had been directed at the jury rather than at the reputation, integrity and intellectual honesty of its members (who, moreover, had not brought any proceedings against him), based on the sociologically indisputable fact that the jury did not represent the diversity of the entire national community although its decision necessarily involved an element of subjectivity. His role as a lawyer had not ended with the delivery of the verdict, since it was up to the Principal Public Prosecutor to decide whether to lodge an appeal. Lastly, the applicant regretted that the prosecutor had chosen to prosecute him for comments that formed part of a debate of public interest and were not contrary to public policy, rather than appealing against the acquittal decision as his client and the public had hoped.", "25. The Court of Appeal held, in a judgment of 17 December 2010, that the facts constituted a breach of the duties of discretion and moderation. It found as follows:", "“ Outside the courtroom, lawyers are not protected by immunity [of judicial speech] and the appropriate degree of their freedom of speech is no longer assessed in relation to the requirements of the exercise of the rights of the defence, but only in relation to freedom of expression. ”", "The Court of Appeal noted that the statements had been made in public, inside the court building, but before the press and not in the course of judicial proceedings; at that juncture, the verdict had been known and the hearing was over. In the court ’ s view, the cries from the public at the end of the hearing had been directed at the justice system, and the applicant had had a duty to exercise caution.", "The Court of Appeal went on to find that, since all the members of the jury were French citizens, references to the colour of their skin did not relate to their social background or nationality but rather to their racial background. The term “white”, used in a repetitive and affirmative manner and without the intention to open a discussion or reflection on the matter, had racial connotations which cast aspersions and suspicion on the integrity of the jurors. The court further found as follows:", "“ As the members of the jury form part of the Assize Court, composed of three professional judges and nine lay jurors, this amounts to discrediting the entire court and consequently the judiciary itself, by disregarding the other three members of the Assize Court and especially the collegial spirit whose very purpose is to avoid bias and afford enhanced procedural guarantees. ”", "In the Court of Appeal ’ s view, the remarks did not form part of the exercise of the rights of the defence, in the absence of any mention of the possibilities of appeal against the decision of the Assize Court. “In view of the nature and degree of the offence”, the Court of Appeal imposed “the lightest possible disciplinary penalty – a warning” on the applicant.", "26. The applicant lodged an appeal on points of law. In addition to the defence arguments already presented before the disciplinary body and the Court of Appeal, he argued that the latter had wrongly held that the statement had targeted the judiciary and the entire Assize Court, as the words “ ... combined with – let ’ s face it – a very weak prosecution and a trial that was conducted in an extremely biased fashion ... ” had not been mentioned in the indictment (see paragraphs 13 and 20 above).", "27. The advocate-general at the Court of Cassation concluded in his opinion that the judgment should be quashed on the basis of Article 10 of the Convention. In particular, he stated that the remarks had not disclosed any attack or personal animosity but rather had constituted, in the immediate aftermath of a highly contested acquittal, an irrepressible outburst based on the factual observation of the jury ’ s composition and echoing more general debates within society. Among those debates he mentioned the courts ’ treatment of police officers implicated in criminal proceedings, stating as follows:", "“ We need only recall the judicial ramifications of two cases that caused a sensation and attracted widespread media coverage at the time of the proceedings resulting in the acquittal of gendarme C: [after] the pursuit and death of Zyed B and Bouna T in 2005 [triggered riots for weeks, the decision of the Paris Court of Appeal on 27 April 2011 to dismiss the case revived the debate], and the death of Ali Z in 2009. Following those events, in a report published on 2 April 2009, Amnesty International expressed concern about an increase in police violence and a lack of judicial action against the perpetrators. In addition to the ‘ low rate of prosecution of alleged perpetrators ’, according to the non-governmental organisation, there was a certain ‘ laxity ’ in the sentences imposed, leading to real impunity for the offences. ”", "28. In a judgment of 5 April 2012 the Court of Cassation dismissed the applicant ’ s appeal in the following terms:", "“ Firstly, the complaint alleging that the disciplinary body exceeded the scope of its jurisdiction is inadmissible for failure to produce the indictment.", "Secondly, having stated explicitly that, outside the courtroom, lawyers were not protected by the immunity conferred by section 41 of the Law of 29 July 1881, the Court of Appeal found that the impugned remarks had racial connotations casting aspersions and suspicion on the integrity of the jurors and thus amounted to a breach of the duties of moderation and discretion. It provided a legal basis for its decision merely to issue a warning to the lawyer, without laying itself open to any of the other complaints raised in the ground of appeal.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "29. The relevant provisions of the Decree of 27 November 1991 on the organisation of the legal profession, as amended, read as follows:", "Article 180", "“Except in Paris, the disciplinary board shall be constituted as stipulated below.", "After each re-election as provided for by section 15 of the above-mentioned Law of 31 December 1971, the Bar Council shall appoint the following members to sit on the disciplinary board :", "(i) one full member and one substitute member from those Bar associations in which the number of lawyers entitled to vote is between eight and forty-nine;", "(ii) two full members and two substitute members from those Bar associations in which the number of lawyers entitled to vote is between fifty and ninety-nine;", "(iii) three full members and three substitute members from those Bar associations in which the number of lawyers entitled to vote is between one hundred and two hundred.", "...", "Every Bar association with over two hundred lawyers entitled to vote shall appoint an additional representative and substitute for each two hundred lawyers. However, the members of that Bar association may not comprise more than half the membership of the Court of Appeal disciplinary board.", "Lawyers entitled to vote are those who are on the Bar Council roll on the date of 1 September preceding the re-election of the Bar Council. ... ”", "Article 183", "“Any contravention of statutes or regulations, infringement of professional rules or breach of the duties of integrity, honour or discretion, even relating to non ‑ professional matters, shall render the lawyer in question liable to the disciplinary sanctions listed in Article 184.”", "Article 184", "“ The disciplinary penalties shall be:", "1. warning;", "2. reprimand;", "3. temporary disbarment not exceeding three years;", "4. striking off the roll or withdrawal of honorary status.", "... ”", "Article 188", "“ In the cases provided for in Article 183 the chairman of the Bar to which the lawyer in question belongs, or the Principal Public Prosecutor, shall formally refer the case to the disciplinary authority, giving reasons, either directly or following an ethical standards investigation. He or she shall give advance notice to the authority that is not instigating the disciplinary proceedings.", "The referral shall be notified to the lawyer by the authority instigating the disciplinary action, by registered letter with recorded delivery.", "A copy shall be sent to the Bar Council with which the lawyer is registered, for the purpose of appointing a rapporteur", "Within fifteen days of notification the Bar Council with which the lawyer is registered shall appoint one of its members to investigate the case. ... ”", "Article 191", "“The rapporteur shall send the investigation report to the chairman of the disciplinary board ... no later than four months after being appointed. ...", "A copy shall be sent to the chairman of the Bar and the Principal Public Prosecutor if the latter has instigated the disciplinary proceedings.", "The date of the hearing shall be set by the chairman of the disciplinary board ... ”", "Article 192", "“No disciplinary penalty may be imposed unless the lawyer in question has given evidence or been called at least eight days previously ... ”", "Article 197", "“The lawyer who is the subject of the disciplinary decision, the Principal Public Prosecutor and the chairman of the Bar may appeal against the decision to the Court of Appeal, which shall rule under the conditions laid down in Article 16, after hearing evidence from the Principal Public Prosecutor. The proceedings shall be conducted in public in accordance with Article 194.", "The chief registrar of the Court of Appeal shall notify all the parties of the appeal in a registered letter with recorded delivery, indicating the date on which the appeal will be heard.", "The time allowed for an interlocutory appeal shall be fifteen days following notification of the appeal in the main proceedings.", "The Principal Public Prosecutor shall be responsible for the enforcement and supervision of the disciplinary penalties imposed.”", "30. Under Article 380-2 of the Code of Criminal Procedure, only the Principal Public Prosecutor is entitled to appeal against an acquittal judgment. The Assize Court is composed of three professional judges and a jury made up of six citizens drawn by lots at first instance, and nine on appeal. Only the accused or his or her lawyer, and the public prosecutor, have the right to challenge jurors; the civil party may not do so. For a description of the procedure before the Assize Court with a lay jury, the Court refers to its judgment in Agnelet v. France (no. 61198/08, §§ 29 et seq., 10 January 2013).", "31. In France, the question of the “racial” or ethnic representativeness of the jury is not debated because recognition of the existence of groups within the population is contrary to the Constitution. Thus, in a decision of 9 May 1991 ( no. 91-290 DC), the Constitutional Council held that the reference made by the legislature to the Corsican people, as a group within the French nation, was contrary to the Constitution, “which recognise [d] only the French nation, composed of all French citizens without distinction as to origin, race or religion”. Similarly, in a decision of 15 November 2007 ( no. 2007-557 DC), the Constitutional Council held that “ethnic statistics” were not permitted on the grounds that they breached Article 1 of the Constitution, according to which “France ... shall ensure equality before the law for all citizens without distinction as to origin, race or religion”. The Constitutional Council held as follows:", "“ ... while the processing operations necessary for carrying out studies on the degree of diversity of people ’ s origins, discrimination and integration may concern objective data, they will be in breach of the principle set out in Article 1 of the Constitution if they are based on ethnic origin or race. ... ”", "32. The removal of the word “race” from the French Constitution has been the subject of debate for a number of years. A draft law to that effect tabled in 2013 was not adopted. The legislature has replaced the word “ race ” with the term “declared race ” in the following provisions of the Criminal Code: Article 225-1 which defines discrimination ( Law of 18 November 2016 on the modernisation of justice in the twenty-first century); Articles 132-76 and 222-13 which set out the aggravating circumstances of a crime or offence ( Law of 27 January 2017 on equality and citizenship); and Article R. 625-7 concerning non-public provocation, defamation and insults (Decree of 3 August 2017 on non-public provocation, defamation and insults of a racist or discriminatory nature). The note accompanying this decree emphasises that the word “ race ” “ is not applicable to human beings ”.", "III. COMPARATIVE LAW AND PRACTICE", "33. The Court notes that the issue of the diversity and representativeness of the judiciary is the subject of debate in several Council of Europe member States, some of which have chosen to address the issue in a very different way to that chosen by France. In the United Kingdom, for instance, the under-representation of women and persons from visible minority groups among judges, especially in the higher courts, prompted the authorities to implement a proactive policy to promote diversity, with the creation in 2013 of a Judicial Diversity Committee under the authority of the Lord Chief Justice. In April 2017 the Committee published its first official statistics on the composition of the judiciary, together with an action plan to encourage greater diversity (Judicial Diversity Committee of the Judges ’ Council – Report on Progress and Action Plan 2016-17, 13 April 2017). In the Netherlands the Council for the Judiciary, as far back as 2007, commissioned a study into the representation of ethnic minorities in the judiciaries of several traditional and more recent immigration countries (the Netherlands, Germany, France, Canada and the United States). A handbook published by the Council for the Judiciary in 2015 on reforming the process for the selection, recruitment and training of judges set out the clear objective of ensuring that the diversity within society was reflected in the judiciary ( “ Judicial reform in the Netherlands: A new process for the recruitment, selection and training of judges ”, Scientific Magazine for the Judiciary Organisation of the Netherlands, 2015).", "34. By way of comparison, in North America the diversity of juries and its impact on decision-making is the subject of numerous studies and court decisions. For example, in the United States the Supreme Court held in its decision in Batson v. Kentucky (476 US 79 (1986)) that the right of defence and prosecution lawyers to challenge jurors could not be exercised on the basis of “racial” criteria (see also, for a recent example, Timothy Throne Foster v. Bruce Chatman (578 U.S. – (2016)). In the Supreme Court ’ s decision in Peters v. Kiff (407 US 493 (1972)) regarding the systematic exclusion of African Americans from juries, Justice Thurgood Marshall issued a dissenting opinion in which he argued that removing a large part of the community from the jury reduced the diversity of human experiences and qualities that could be expressed during the deliberations. In Canada, in several recent cases, individuals accused of murdering “ Aboriginal ” people have been acquitted by juries with no Aboriginal members. These judgments triggered a debate on the representativeness of Canadian juries and the need to reform jury selection in order to promote the participation of members of Aboriginal communities; in particular, a former Supreme Court judge delivered a report in 2013 concerning the province of Ontario. In 2015 the Supreme Court ruled ( R v. Kokopenace, 2015 SCC 28) that provinces had an obligation to make “ reasonable efforts ” to provide “a fair opportunity for a broad cross-section of society to participate in the jury process”. However, they are not required to ensure that the final composition of the jury accurately and proportionately reflects the different groups making up the Canadian population.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "35. The applicant alleged that the disciplinary penalty imposed on him breached Article 10 of the Convention, which provides :", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ... for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "( a) The applicant", "37. The applicant submitted that the interference had not pursued the legitimate aim of protecting the rights and freedoms of others. The remarks in question had not demonstrated any personal animosity towards the members of the jury and had not called into question their honesty or integrity. Furthermore, the aim of maintaining the authority and impartiality of the judiciary did not justify the interference, as lawyers ’ freedom of expression, even if it sometimes entailed criticism of the courts, was apt to contribute to improving and strengthening the judiciary.", "38. The applicant maintained that the remarks had formed part of a debate of public interest concerning the functioning of the judiciary, which called for a high level of protection of freedom of expression with a particularly narrow margin of appreciation. He referred in that regard to the opinion of the advocate-general at the Court of Cassation (see paragraph 27 above).", "39. The remarks concerning the composition of the jury constituted a statement of fact, the objective reality of which was beyond dispute. In any event, if the Court were to consider that the remarks had been accompanied by a value judgment, they had a very solid factual basis. They had been made at the end of the hearing and had been inextricably linked to the case in which he had been representing his client ’ s interests. In the applicant ’ s view, they could not be viewed in isolation, as the remarks preceding them had also pointed to the risks of a two-speed society and the need to prevent segregation in society and between communities. They had described, in the heat of the moment and at a time when the judicial decision had not been final, a situation that was widespread in the country and especially in the département in which the Assize Court had been sitting.", "40. Thus, in the applicant ’ s view, his remarks were sociological and political in nature rather than racial or racist. He contested the assumption of which the Government complained, to the effect that the skin colour of a jury determined the verdict of the Assize Court; the reference to a “ white ” jury had been just one factor among others ( the conduct of the proceedings, the passive role of the prosecution) in his conclusion that the acquittal verdict had not been a surprise.", "41. Lastly, the applicant argued that his remarks had to be placed in context. He noted the Government ’ s acknowledgement of the exceptionally tense context in which the trial had been held. Furthermore, as a lawyer for the civil party, he did not have the right to challenge jurors. After the challenges had been exercised, jurors were no longer just private individuals but constituted an organ of the judiciary which had to be seen to be impartial. As soon as the verdict had been delivered he had questioned the prosecution ’ s representative about his intentions, since, unlike the prosecution, the civil party had no means of challenging an acquittal verdict. The prosecutor had replied that the possibility of an appeal should be discussed within the Principal Public Prosecutor ’ s Office at the Montpellier Court of Appeal. Given the conduct of the trial, and in particular the refusal of the President of the Assize Court to question the two gendarmes accused of lying to the investigating judge, and the hesitant attitude of the prosecution ’ s representative, he had realised that an appeal was unlikely and had tried to influence the prosecutor ’ s choice. Although the proceedings had ended he had decided, from his position on the civil party ’ s bench in the courtroom, still in his robes and alongside the defence lawyer who was being questioned in the same circumstances by other journalists, that he could not in all conscience shirk his duty as a lawyer in view of the reluctant attitude of the prosecution.", "( b) The Government", "42. The Government submitted that the interference at issue had been prescribed by law and had pursued the legitimate aims of protecting the reputation or rights of others – the members of the Assize Court jury – and maintaining the authority and impartiality of the judiciary.", "43. In view of the considerable media coverage of the case from the outset, the Government accepted that the applicant ’ s statement, which had concerned the functioning of the judiciary and the conduct of the trial, had formed part of a debate of public interest.", "44. The remarks had constituted value judgments casting doubt on the impartiality and fairness of the Assize Court jurors because of the “ community ” to which they belonged. The applicant had made remarks about the judicial system, outside the courtroom, that were so serious as to overstep the permissible expression of comments without a sound factual basis. In so doing he had imposed an assumption or an abstract correlation between jurors ’ skin colour and the thrust of the deliberations; this was liable to undermine public confidence in the justice system.", "45. The Government acknowledged that the context had been tense and not conducive to calm reflection on the proper course of justice. Nevertheless – and however understandable the applicant ’ s disappointment – he should not have given vent to his anger in answering the journalist ’ s questions about a case that had not been finally determined.", "46. If the applicant had hoped to influence the prosecution ’ s decision as to whether to appeal against the acquittal, making such a statement was not the only means of asserting the rights of the defence: the correct approach would have been to speak to the public prosecutor at the end of the hearing. Instead the applicant, overstepping the limits of criminal defence, had engaged in outright condemnation not only of professional judges but also, primarily, of the jurors on account of their racial background and colour.", "47. The Government observed that the penalty imposed on the applicant had been the lightest possible and had had no repercussions on his professional activity.", "48. They concluded, for the reasons given by the Court of Appeal, that the interference had been necessary in view of the immoderate and imprudent nature of the applicant ’ s comments. Given the content of his remarks, their dissemination in the press, the context, the applicant ’ s status as a lawyer and the mild nature of the penalty, the Government were of the view that there had been no violation of Article 10 of the Convention.", "2. The Court ’ s assessment", "49. The Court considers that the disciplinary penalty imposed on the applicant constituted interference with the exercise of his right to freedom of expression, and observes that the parties agree on this point. Such interference will breach Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the “legitimate aims” listed in paragraph 2 of Article 10, and is “necessary in a democratic society” in order to fulfil the said aim or aims.", "( a) Prescribed by law", "50. The Court agrees with the national courts that the interference was “prescribed by law”, namely by Article 183 of the Decree of 27 November 1991.", "( b) Legitimate aim", "51. The parties disagreed as to whether the interference had pursued a legitimate aim or aims ( see paragraphs 37 and 42 above).", "52. The Court considers that the applicant ’ s arguments concern the assessment of whether the interference was necessary, as regards the aim of “protection of the reputation or rights of others”. It accepts the Government ’ s view that the interference pursued such an aim, as the individual jurors may have felt directly targeted by the reference to their skin colour. Lastly, it considers that the interference was also aimed at maintaining “the authority and impartiality of the judiciary”, of which the jury, alongside the professional judges, forms a part.", "( c) Necessity in a democratic society", "53. The Court refers to the general principles which it has reiterated many times since its judgment in Handyside v. the United Kingdom ( 7 December 1976, Series A no. 24 ), and which it restated more recently in Morice v. France ([GC], no. 29369/10, §§ 124 - 27, ECHR 2015).", "54. It also refers to the latter judgment as regards the principles relating to the status and freedom of expression of lawyers, with emphasis on the distinction it draws between remarks made by lawyers inside and outside the courtroom (§§ 132 - 38).", "55. In the present case the Court notes that, although the applicant was inside the court building when he made the impugned remarks, his statement was made in reply to a question from a journalist, after the acquittal verdict had been given and the Assize Court hearing had ended. Consequently, in the light of the distinction referred to above, the Court considers that the statements in question did not form part of “conduct in the courtroom” and should be regarded as those of a lawyer speaking outside the courtroom. It observes that the Court of Appeal took a similar view and concluded that the judicial immunity enjoyed by lawyers under domestic law in relation to “conduct in the courtroom” did not apply.", "56. With regard to remarks made outside the courtroom, the Court has previously held that a client ’ s defence may, in certain circumstances, be pursued through the media if the remarks do not constitute gravely damaging attacks on the action of the courts, if the lawyers are speaking in the context of a debate of public interest concerning the functioning of the justice system and in connection with a case that has aroused media and public interest, if they do not overstep the permissible expression of comments without a sound factual basis, and if they have made use of the available remedies on their client ’ s behalf (see Morice, cited above, §§ 138, 139 and 174). The Court specified in that case that lawyers were protagonists in the justice system, directly involved in its functioning and in the defence of a party, and could not be equated with external witnesses whose task it was to inform the public (ibid., § 148).", "57. In examining the complaint before it the Court will take into account the criteria it adopted in Morice, namely the applicant ’ s status and the role played by his statement in the task of defending his client; the contribution to a debate of public interest; the nature of the impugned remarks; the specific circumstances of the case; and the nature of the sanction imposed.", "( i ) The applicant ’ s status as a lawyer", "58. The Court reiterates that the defence of a client by his or her lawyer must be conducted not in the media, save in very specific circumstances, but in the courts of competent jurisdiction, and that this involves using any available remedies (see Morice, cited above, § 171). In the present case, although the acquittal verdict had been delivered, the judgment was not yet final. The Principal Public Prosecutor had a period of ten days in which to appeal against the decision, unlike the civil party – whom the applicant was representing – who did not have that right. The Court agrees with the disciplinary board of the Bar associations attached to the Montpellier Court of Appeal (see paragraph 22 above) that the statement made at the exit from the courtroom had been part of an analytical approach that was apt to help persuade the Principal Public Prosecutor to appeal against the decision to acquit. It also notes the Government ’ s assertion that there was nothing in the file to demonstrate that this means of expression was the only means available to the applicant in order to defend his client ’ s interests (see paragraph 46 above). It observes that, in choosing this form of words, the Government were criticising the use of the impugned remarks rather than the applicant ’ s assertion that they were aimed at defending the interests of the civil party. The Court therefore considers that, in making his statement, the applicant sought an opportunity to continue his client ’ s defence by pursuing the proceedings before an enlarged assize court of appeal ( see, mutatis mutandis, Mor v. France, no. 28198/09, § 59, 15 December 2011).", "(ii) Contribution to a debate of public interest", "59. The applicant referred to his right to inform the public about a matter of public interest such as the courts ’ treatment of police officers implicated in criminal proceedings. The Government accepted that the applicant ’ s remarks had related to the functioning of the judiciary and to a matter of public interest, particularly in view of the wide media coverage of the case.", "60. The Court notes that this factor was not taken into account by the Court of Appeal, which confined its examination to the conformity of the applicant ’ s remarks with lawyers ’ duties of moderation and discretion.", "61. In this regard the Court notes, firstly, that the trial took place in an atmosphere of considerable tension that had led to rioting in the district where the victim had lived (see paragraphs 16 and 17 above) and that it had a significant impact at local and national level, as attested to and heightened by the presence of the audiovisual media when the verdict was delivered. The Court reiterates, secondly, that the public has a legitimate interest in the provision and availability of information about criminal proceedings, and that remarks concerning the functioning of the judiciary relate to a matter of public interest ( see Morice, cited above, § 152, and Bédat v. Switzerland [GC], no. 56925/08, § 63, 29 March 2016). In the present case the Court considers that the applicant ’ s remarks, which concerned the functioning of the judiciary, and in particular proceedings before an assize court sitting with a lay jury and the conduct of a criminal trial relating to the use of firearms by law-enforcement agents, were part of a debate on a matter of public interest. Accordingly, it was first and foremost for the national authorities to ensure a high level of protection of freedom of expression, with a particularly narrow margin of appreciation being afforded to them.", "( iii ) The nature of the impugned remarks", "62. The Court observes that the Court of Appeal – and, accordingly, the Court of Cassation – did not make reference in its judgment to the applicant ’ s clearly articulated criticisms of the way in which the prosecution and the trial had been conducted. The interference of which the applicant complained was therefore based solely on his assessment of the Assize Court jury.", "63. The Court notes that the applicant ’ s remarks did not reflect any personal animosity on his part towards a specifically named juror or a professional judge. Hence, it regards them not as condemnation but as a general assertion concerning the potential link between the composition of the jury and the gendarme ’ s acquittal.", "64. The Court stresses that in using the expression “all-white” to describe the jury in order to make the point that, combined with other circumstances, this factor had made the acquittal possible, the applicant referred to an ethnic characteristic that has been the subject of debate, criticism and even prohibition because of the historical tragedies with which it has been linked and the discrimination which it still frequently entails. However, it does not appear to the Court that the applicant was seeking to accuse members of the jury of racial bias. Rather, the Court considers that the applicant ’ s statement reflected a widely held view that the impartiality of judges, whether professional or lay judges, is a virtue that does not exist in a vacuum but is the result of considerable efforts to shake off unconscious bias rooted, in particular, in geographical and social background and liable to arouse fears in persons being tried of being ill ‑ understood by persons of different appearance to them ( see, as regards the impartiality of the courts in cases of allegations of racism on the part of a juror, the Court ’ s judgments in Remli v. France, 23 April 1996, Reports of Judgments and Decisions 1996 ‑ II; Gregory v. the United Kingdom, 25 February 1997, Reports 1997 ‑ I; and Sander v. the United Kingdom, no. 34129/96, ECHR 2000 ‑ V ). In the Court ’ s view, this interpretation follows from the applicant ’ s remarks as seen in their proper context. Those remarks also made reference to “[a] jury on which not all communities are represented”, and were preceded by a social commentary on the impact of the verdict, to the effect that “the verdict [was] ... disastrous in terms of social peace” and that there existed a “ two-speed society”. In this connection the applicant stated as follows:", "“People are living in tower blocks cut off from city centres. For some, prosecution ends in conviction while others are acquitted. The entire social system needs to be revamped ... ” (see paragraphs 11 and 12 above).", "It should likewise be observed that the applicant, who also referred to the manner in which the prosecution and the trial had been conducted, did not assert that the acquittal had been certain but that he had “always [known] it was a possibility”. This is closer to a critical discussion than to an accusation of systematic bias amounting to holding in contempt a jury he suspected of racism, something that would be incompatible with proper respect for the justice system.", "65. The Court is mindful of the fact that the spoken reference by the applicant to the origins or skin colour of the jurors concerned an issue that is particularly sensitive in the respondent State, whose laws prohibit consideration of “racial” or ethnic origin (see paragraphs 31 and 32 above). It appreciates that the reference may therefore have offended some members of the public and of the judiciary. Nevertheless, it considers that the reference to the “community ” to which the members of the jury belonged cannot be construed simply as an intention to accuse them of racial bias, but called for a wider debate on the issue of diversity in jury selection and, as pointed out by the disciplinary body, on the link between their origins and the decision taken (see paragraphs 22, 27, 33 and 34 above).", "66. Against this background the Court considers that the impugned statement can be regarded as a general assertion concerning the organisation of the criminal-justice system by a lawyer “echoing more general debates within society ” (see paragraph 27 above) and constituted a value judgment. The Court reiterates in that regard that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact ( see Paturel v. France, no. 54968/00, § 37, 22 December 2005, and Boykanov v. Bulgaria, no. 18288/06, § 37, 10 November 2016).", "67. It remains to be determined whether the factual basis for that value judgment was sufficient. The Court is of the view that this condition was fulfilled in the present case. It observes, firstly, that the statement in question was fully in line with the national debate to which the advocate ‑ general referred before the Court of Cassation (see paragraph 27 above) and, further afield, with the political and academic debate on the justice system taking place in various countries (see paragraphs 33 and 34 above). Secondly, it considers that the remarks were sufficiently closely linked to the facts of the case, in view of the social and political background to the proceedings.", "68. In sum, although the impugned remarks had a negative connotation, the Court considers that they were more akin to a general criticism of the functioning of the criminal-justice system and social relations than to an insulting attack on the lay jury or the Assize Court as a whole. The Court reiterates in this connection that freedom of expression “is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb” ( see Morice, cited above, § 161).", "( iv ) The specific circumstances of the case", "( α ) The need to take account of the overall background", "69. The Court observes that the remarks in issue were made against a background of heightened social tension. It also notes that the investigation established that some of the gendarme ’ s colleagues had given false statements seeking to exonerate him – for which they were subsequently convicted – and that the case was followed closely by the media and the public, a fact which contributed to the tense atmosphere throughout the trial. The tension reached a peak six months after the events when the gendarme who had fired the fatal shots was acquitted. In these circumstances the Court accepts the applicant ’ s assertion that his remarks should be placed in the context of the troubled atmosphere in which the verdict was delivered. Thus, as regards the wording of the impugned statement, the Court notes that it was made immediately after the delivery of the Assize Court ’ s verdict and in the context of a rapid oral exchange of questions and answers, so that there was no possibility of reformulating, refining or retracting the statements before they were made public (see, among other authorities, Otegi Mondragon v. Spain, no. 2034/07, § 54, ECHR 2011).", "( β ) Maintaining the authority of the judiciary", "70. The Court notes that the Court of Appeal held that the remarks concerning the lay jury had sought to discredit the Assize Court as a whole – as the applicant had omitted to mention the fact that the deliberations took place on a collegiate basis – and hence the entire judiciary.", "71. As jurors and professional judges deliberate on an equal footing on the verdict and sentence, the Court considers that the limits of acceptable criticism of the former, when they are involved in trying criminal offences, are the same as those applicable to judges (see Morice, cited above, §§ 128 and 168). Thus, in the present case, the fact that the applicant mentioned only the lay jury in his remarks did not mean that his right to criticise the judicial authority extended beyond the limits outlined above.", "72. That being said, the Court agrees with the Court of Appeal that the applicant ’ s remarks were directed at the Assize Court as a whole. This is true of the reference to an “all-white jury”, but also and especially of the remarks that followed (“the door was wide open for an acquittal, it ’ s no surprise”). The Court reiterates in that regard the importance, in a State governed by the rule of law and in a democratic society, of maintaining the authority of the judiciary. The proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers (see Morice, cited above, § 170). Nevertheless, for the reasons set out above (see paragraphs 64 to 67), the Court considers that the facts of the case do not support the conclusion that there was an attack on the authority and impartiality of the judiciary such as to justify the judgment against the applicant.", "( e) The sanction", "73. The Court notes that the penalty imposed on the applicant was the lightest possible in disciplinary proceedings – “merely ... [a] warning” according to the Court of Cassation. Nevertheless, it observes that this is not a trivial matter for a lawyer (see paragraph 77 below) and that even when the penalty is the lightest possible, that fact cannot suffice in itself to justify the interference with the applicant ’ s freedom of expression (see Morice, cited above, § 176, and the case-law cited therein).", "( f) Conclusion", "74. The Court considers that the impugned remarks by the applicant constituted criticism of the jury and judges of the Assize Court which had delivered the acquittal verdict, but that they formed part of a debate of public interest concerning the functioning of the criminal-justice system, in the context of a case that had attracted wide media coverage. While they were capable of shocking, they nevertheless amounted to a value judgment with a sufficient factual basis made in the context of his client ’ s representation in criminal proceedings.", "75. In view of the foregoing the Court considers that the judgment against the applicant is to be regarded as disproportionate interference with his right to freedom of expression and was therefore not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. Basing his claim on the sum awarded to the applicant in Morice, the applicant claimed EUR 15,000 in respect of non-pecuniary damage. He argued that the disciplinary proceedings had resulted in widespread media coverage in the area covered by the Nîmes Court of Appeal and in virulent comments on the Internet that were liable to damage his reputation and honour. He added that the Court of Cassation judgment had received maximum publicity (in the official reports of the Criminal Division ’ s decision, the Court of Cassation ’ s news bulletin and on the court ’ s website), producing a considerable impact within the judicial circles in which he worked.", "78. The Government considered that sum to be excessive, pointing out that the applicant had received the lightest possible disciplinary penalty. They also observed that, in the case of Bono v. France ( no. 29024/11, § 60, 15 December 2015), which concerned a heavier disciplinary penalty imposed on a lawyer, the Court had awarded EUR 5,000 in respect of non ‑ pecuniary damage. In their submission, an amount of EUR 4,000 would be sufficient.", "79. The Court considers that in the circumstances of the case the finding of a violation in this judgment constitutes in itself sufficient just satisfaction.", "B. Costs and expenses", "80. The applicant did not submit any claim in respect of costs and expenses. Accordingly, the Court makes no award under this head." ]

[ "6. The applicant was born in 1943 and lives in Moscow. He has published books and articles under the name of Eduard Limonov. At the material time he was a founding member of the National Bolshevik Party and one of the leaders of Another Russia ( « Другая Россия » ), an umbrella coalition known for organising opposition rallies under the name of Dissenters ’ March (« Марш несогласных » ).", "7. The facts of the case, as submitted by the parties, may be summarised as follows.", "Defamation proceedings against the applicant", "8. On 4 April 2007 Radio Free Europe /Radio Liberty (RFE/RL) hosted a debate in the wake of the Moscow court ’ s decision upholding the Moscow Government ’ s refusal to authorise the Dissenters ’ March in 2006. The applicant took part in the debate and stated :", "“We certainly expected that the Tverskoy court [ in Moscow] would issue a negative decision. Moscow courts are controlled by [ the Moscow mayor] Luzhkov. You cannot expect a miracle ... Generally speaking, Moscow courts have never ruled against Luzhkov. Anyone in our position would have insisted on a lawful decision, knowing full well that unlawfulness was to be expected.”", "The transcript of the debate was published on the station ’ s web-site.", "9. On 18 May 2007 the Moscow mayor lodged a defamation claim against the applicant and the RFE/RL station. He claimed that the sentence “Moscow courts are controlled by Luzhkov” was false and also damaging to his honour, dignity and the professional reputation, and sought 500,000 Russian roubles (RUB) in respect of non-pecuniary damage.", "10. On 14 November 2007 the Babushkinsky District Court in Moscow granted the defamation claim in full. It heard counsel for the plaintiff and the defendants and took evidence from witnesses for the applicant who stated that they had had a personal experience of unsuccessful litigation against the Moscow Government in Moscow courts. The court found:", "“The defendant Savenko (Limonov) and his counsel did not produce any evidence showing the truth of the statement [that Moscow courts were controlled by Mayor Luzhkov].", "The expert ... from the Vinogradov Russian Language Institute ... explained that for the average man – rather than for a specialist – the statement meant that courts were actually controlled by Mayor Luzhkov, that they were not independent and watched carefully for his reaction, that any application to the courts was meaningless because they would never find against Luzhkov. The expert ’ s position finds corroboration in the testimony of citizens who had spontaneously appeared in court and were listed as witnesses for the defendants. They actually believed that the courts in Moscow were controlled by the Moscow Government and by Mayor Luzhkov and they gave testimony to that effect ...", "[Mr Savenko (Limonov)] did not accept the claim ... and stated that the amount claimed was a significant one, that he did not have that kind of money because he was the father of a small child ... As regards compensation in respect of non-pecuniary damage, the court finds that the claim should be granted in full because the defendant Savenko (Limonov) did not produce his income statement, whereas the defendant RFE/RL submitted that it had an amount of RUB 58,656.35 in its current account ... ”", "The District Court ordered that the applicant and the radio station broadcast a rectification and publish it on the web-site, and pay RUB 500,000 each to the Moscow mayor.", "11. On 7 February 2008 the Moscow City Court rejected the appeals by the applicant and the radio station and upheld the District Court ’ s judgment. It pointed out in particular that –", "“ ... in determining the amount of award in respect of non-pecuniary damage, the court had regard to the extent of liability of each defendant, the nature of the statement, the manner and extent of its dissemination, and the nature of moral suffering caused to the plaintiff. In particular, the court found that the disseminated information about the plaintiff undermined public confidence in the authorities ... that the information had been disseminated on the radio and in the internet ... and that the ... information unlawfully and undeservedly discredited the plaintiff in the eyes of a large audience as the head of the executive branch in the city of Moscow and caused him moral suffering which was immesurably greater than the ordinary ( нравственные страдания, которые несоизмеримо выше обычных ) ”.", "12. On 25 April 2008 the court bailiffs opened enforcement proceedings against the applicant and asked him to pay the entire amount within three days. On 26 August 2008 the bailiffs searched his flat and removed his personal belongings, including a typewriter, chairs, desk lamps, mobile phones and books.", "13. Unable to pay the award, the applicant asked the Babushkinskiy District Court to be allowed to pay by instalments. He submitted that he had no fixed income, except for his retirement pension, that he had not published any new books, and that he had to provide for his wife and two children. On 8 October 2008 the District Court refused his request on the grounds that the proposed amount of monthly instalments was negligible. In its view, payment by instalments would stretch the enforcement proceedings over more than forty years with the result that “the judgment would not actually be enforced”. On 20 November 2008 the Moscow City Court upheld the District Court ’ s decision on appeal.", "14. On 15 December 2008 a bailiff issued a decision restricting the applicant ’ s right to leave Russia for a period of six months on the grounds that he had failed to pay the amount awarded to the mayor. On 15 October 2009 another bailiff issued a permanent restriction on the applicant ’ s right to leave Russia that would be valid until full payment of the award.", "Factual information submitted by the Government", "15. The Court requested the Government to submit the information: (i) on all the defamation claims lodged by the Moscow mayor, their parties, outcomes and amounts awarded, and (ii) on any other defamation claims lodged by individuals, whether private persons, State officials or politicians, in which comparable amounts were awarded.", "16. On the first point, the Government submitted information covering only the period from 1 January 2007 to April 2010. According to them, in that period the Moscow mayor had introduced sixteen defamation claims before the Moscow courts. The list produced by the Government only contained information in respect of fourteen such claims, all of which had been granted. In twelve cases the mayor was awarded compensation in respect of non-pecuniary damage in the amount ranging from RUB 30,000 to RUB 50,000, in two cases – judgments of 30 November 2009 and 28 April 2010 – the amount of compensation was RUB 500,000.", "17. On the second point, the Government cited five judgments over a ten-year period, in which the amounts of compensation in respect of non ‑ pecuniary damage in defamation claims ranged from RUB 270,000 (judgment of 4 April 2007) to RUB 4,000,000 (judgment of 1 October 2002). Four of them were issued against publishing houses, and one judgment concerned a defamation claim lodged by the Agriculture and Food Minister of a Russian region against a private individual." ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "18. The applicant complained that the judgments in the defamation claim and an excessive award against him had violated his right to freedom of expression under Article 10 of the Convention which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Submissions by the parties", "19. The Government submitted that the Russian courts had held the phrase “Moscow courts are controlled by Luzhkov” to be a statement of fact. It had been “undoubtedly damaging” for the mayor ’ s reputation, as under the Constitution, Russian judges were independent and submitted only to the Constitution and federal law. The applicant ’ s allegation had been a serious accusation against the Moscow mayor that he had exercised pressure on the Moscow courts. It could be understood as accusing him of criminal offences under Articles 285 (abuse of office), 286 (excess of powers) or 294 (interference with the justice) of the Criminal Code. The Anti-Corruption Act also established responsibility for corruption-related offences which could be sanctioned in particular with a ban on holding public office. The Government concluded that the applicant had “alleged, in essence, that the mayor was unfit for his position and was a criminal”. Those allegations had not been founded on verified or verifiable information and had been capable of causing actual damage to the mayor ’ s professional activities, undermining his professional integrity or qualification in the eyes of the public. As to the proportionality of the award, the courts had been guided by the relevant provisions of the Civil Code and had regard to the fact that the statement had undermined public trust in the authorities, that it had been broadcast to an unlimited audience of the radio station and published on the web-site and that the mayor had suffered extraordinary anguish in that connection. In the Government ’ s opinion, the amount of the award had not exceeded the average in that category of defamation claims. The objective of making that award had been “to prevent individuals who make public statements about facts, from drawing ill-considered and unsubstantiated conclusions”.", "20. The applicant pointed out that the Government had been unable to produce a single judicial decision finding against Mayor Luzhkov. His phrase had not accused him of any offence; it had been a conclusion at which an ordinary citizen would have arrived upon reviewing the findings of Moscow courts on the claims lodged by Mayor Luzhkov. The phrase had been his personal opinion which was not actionable in defamation. He had sought to attract public attention to the existing case-law and to the way in which the courts functioned in Moscow. The amount of award had been grossly disproportionate in relation to both the nature of the statement and the existing case-law, as well as in relation to his financial situation as a father of two minor children, and his political status as one of the leaders of the opposition movement. An excessively large award had the stifling effect on the criticism of public authorities in Russia and on the activities of the opposition movement.", "Admissibility", "21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "Merits", "22. The Court accepts that the finding of the applicant ’ s liability for defamation and an order to pay damages to the mayor constituted interference with his right to freedom of expression. The interference had a lawful basis, notably Article 152 of the Civil Code, which allowed an aggrieved party to seek the judicial protection of his reputation and claim compensation in respect of non-pecuniary damages. It also pursued a legitimate aim, that of protecting the reputation or rights of others, within the meaning of Article 10 § 2. It remains to be established whether the interference was “necessary in a democratic society”. In reviewing under Article 10 the domestic courts ’ decisions, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Dichand and Others v. Austria, no. 29271/95, § 38, 26 February 2002, with further references). The Court will take the following elements into account: the position of the applicant, the position of the person against whom his criticism was directed, the context and object of the impugned statement, its characterisation by the domestic courts, and the sanction imposed (see Krasulya v. Russia, no. 12365/03, § 35, 22 February 2007, with further references).", "23. At the material time the applicant was one of the leaders of a broad coalition of opposition groups which sought to vindicate the right to freedom of assembly in Moscow by holding rallies and demonstrations known as Dissenters ’ Marches ( see Kasparov and Others v. Russia, no. 21613/07, § 7 et seq., 3 October 2013). The city authorities denied permission for the Dissenters ’ March on 16 December 2006 and the organisers unsuccessfully challenged that decision in courts. During a live radio debate in which the Moscow court ’ s decision to uphold the ban on the Dissenters ’ March was discussed the applicant stated his view that the Moscow courts were controlled by the Moscow mayor.", "24. The statement was made in the general context of a discussion about restrictions which the Moscow authorities imposed on the citizens ’ right to freedom of peaceful assembly. More specifically, the applicant ’ s statement could be understood as a suggestion that the regional judiciary showed excessive deference to the executive or even lacked the requisite degree of independence. Both the exercise of political rights and the functioning of the justice system constitute matters of public interest, which are accorded the high level of protection under Article 10, leaving the State authorities a particularly narrow margin of appreciation for suppressing such speech (see Morice v. France [GC], no. 29369/10, § 125, ECHR 2015 ).", "25. Although the statement appeared to have targeted the insufficiently independent standing of the Moscow judiciary, it was the Moscow mayor who took issue with it and sued the applicant for defamation. The mayor was a professional politician and the elected head of the city government. The Court reiterates that the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. The requirements of the protection of a politician ’ s reputation have to be weighed against the interests of open discussion of political issues (see Oberschlick v. Austria (no. 1), 23 May 1991, § 59, Series A no. 204) but the domestic courts did not perform any such balancing exercise in the instant case.", "26. As regards the form and contents of the statement, the Court notes that it was the applicant ’ s reaction in the context of an oral exchange during a live radio broadcast, so that he had no possibility of reformulating, refining or retracting it before it was made public (compare Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000, and Ottan v. France, no. 41841/12, § 69, 19 April 2018 ). Such forms of expression allow for a greater degree of exaggeration and cannot be held to the same standard of accuracy as written assertions (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 73, ECHR 2011). The statement conveyed the applicant ’ s indignation at what he perceived as yet another rejection of lawful demands against the Moscow government. It reflected his own experience of unsuccessful attempts to vindicate the right to freedom of peaceful assembly in Moscow, but also on the experience of others who had lost judicial proceedings involving the Moscow mayor. The Court considers that those elements, taken together with the Government ’ s factual information showing that the courts had not found against the Moscow mayor in any of the defamation claims (see paragraph 16 above), were sufficient to lend a certain factual basis to the applicant ’ s strong reaction. The Court accordingly finds that the applicant was entitled to state his opinion in a public forum on a matter of public interest. The District and City Courts in Moscow did not carry out a balancing exercise or take into account the Moscow mayor ’ s position as a professional politician. Those failings call for the conclusion that the standrds according to which the national authorities examined the defamation claim against the applicant were not in conformity with the principles embodied in Article 10.", "27. In addition to the above finding, the Court will separately address the applicant ’ s argument about an excessive award of damages in favour of the Moscow mayor. It reiterates that unpredictably large awards in defamation cases are considered capable of having a chilling effect on the freedom of expression and therefore require the most careful scrutiny (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III, and Kasabova v. Bulgaria, no. 22385/03, § 71, 19 April 2011 ). An award of damages must be “necessary in a democratic society” in the sense that it must bear a reasonable relationship of proportionality to the injury to reputation suffered. It falls to the Court to assess whether the compensatory response to a defamation claim was a proportionate one by finding where the appropriate balance lies between the conflicting Convention rights involved. Accordingly, the essential question to be answered is whether, having regard to the size of the award, there were adequate and effective domestic safeguards, at first instance and on appeal, against disproportionate awards which assured a reasonable relationship of proportionality between the award and the injury to reputation (see Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, §§ 110-113, ECHR 2005 ‑ V (extracts), and Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 48-51, Series A no. 316 ‑ B).", "28. The Moscow mayor was awarded the full amount he had claimed in respect of non-pecuniary damage, RUB 500,000 from each of the two defendants which came to a total of approximately EUR 28 ,000 at the material time. The Court reiterates that awards of that magnitude will trigger a heightened scrutiny of their proportionality (see Pakdemirli v. Turkey, no. 35839/97, § 59, 22 February 2005, and Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 54, 29 March 2011 ). That award was unusually high in absolute terms but also much higher in relation to awards in comparable defamation cases that have come before the Court (see, for example, Grinberg v. Russia, no. 234 72/03, § 12, 21 July 2005 – RUB 2,500 to the Governor of the Ulyanovsk Region out of the RUB 500,000 he had claimed; Fedchenko v. Russia, no. 33333/04, § 15, 11 February 2010 – RUB 5,000 to a member of Parliament out of the RUB 500,000 he had claimed; Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 15, 28 March 2013 – RUB 60,000 to the Governor of Omsk out of the RUB 500,000 he had claimed ). The Government were able to identify only five cases over a ten-year period in which comparable or higher awards had been made. By contrast, in the three-year period from 2007 to 2010, the Moscow mayor was granted the full amount he had claimed in at least two other cases (see paragraphs 16 and 17 above).", "29. The Court further notes that, when making the pecuniary award against the applicant, the District Court failed to provide any reasons to justify the granting of the full amount sought by the Moscow mayor or to carry out a serious assessment of proportionality (compare Kwiecień v. Poland, no. 51744/99, § 56, 9 January 2007). It held the applicant responsible for the failure to produce his statement of income but did not adjourn the proceedings to obtain documents relating to his financial situation. In any event, even though the other defendant, the radio station, did submit a statement of accounts, that did not prevent the District Court from making an award exceeding the amount of available funds by a factor of ten.", "30. The Court also disagrees with the City Court ’ s assessment that the suffering of the elected head of the executive had a much greater value than that of an ordinary citizen. This finding is incompatible with the Convention-compliant approach which establishes that prominent political figures, such as the Moscow mayor, should be prepared to accept strongly worded criticism and may not claim the same level of protection as a private individual unknown to the public, especially when the statement did not concern their private life or intrude on their intimacy (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 84 and 123, ECHR 2015 (extracts) ). In these circumstances, the Court finds that a high award of damages to the Moscow mayor did not pursue a “pressing social need” (compare I Avgi Publishing and Press Agency S.A. and Karis v. Greece, no. 15909/06, § 35, 5 June 2008).", "31. Finally, as regards the impact of such an award on the applicant, the evidence shows that he struggled to pay it in full because it represented his many years ’ income ( compare Kasabova, cited above, § 71, and Tešić v. Serbia, nos. 4678/07 and 50591/12, § 65, 11 February 2014 ). The courts denied his request to pay by instalments which resulted in a further punitive sanction being imposed on him in the form of a permanent restriction on his right to leave Russia. The severity of that additional sanction which must have considerably disrupted the applicant ’ s life further reinforces the Court ’ s view that the award of damages in the present case was disproportionate to the legitimate aim pursued and not “necessary in a democratic society”.", "32. Having regard to the Moscow courts ’ failure to apply the principles embodied in Article 10 of the Convention and the excessive amount of the award, the Court finds a violation of that provision.", "OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "33. The applicant also complained under Article 6 of the Convention that the domestic courts had misrepresented the statements by the expert in linguistics and had not carried out an adequate assessment of the damage caused to the mayor which had resulted in an excessive award.", "34. Having regard to the facts of the case and its finding of a violation of Article 10, the Court considers that it has examined the main legal question raised in the present application. It therefore concludes that it is not necessary to examine the admissibility or merits of the above-mentioned complaints (see, for example, Pakdemirli, cited above, § 63, and Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 48, 2 7 May 2014 ).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "35. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "36. The applicant claimed, in respect of pecuniary damage, the amount payable under the impugned judgment, which was equivalent to 11,700 euros (EUR) on the date of submission of claims, and an additional amount of EUR 91,900, comprising the following elements: EUR 36,000 for renting a substitute flat as he had been asked to leave the old one after the search; EUR 43,000 for the value of property he should have inherited after his parents in Ukraine but had not been able to take possession of because of the restriction on leaving Russia, and EUR 12,900 for the loss of income from publications which had ceased working with him fearing reprisals. He also claimed EUR 50,000 in respect of non-pecuniary damage.", "37. The Government submitted that the applicant had only paid a tiny fraction of the total award, that his rental contact or employment situation had in no way been connected with his application to the Court and that he was still able to claim his inheritance in Ukraine. The claim in respect of non-pecuniary damage was excessive and not corroborated with any evidence of the applicant ’ s distress.", "38. The Court observes that the judicial award against the applicant has remained enforceable under domestic law and that the applicant ’ s freedom of movement has been restricted on the grounds that it has not been paid in full. In these circumstances, it awards the applicant the full amount payable under the domestic judgment, which it found to have been in breach of the Convention requirements, plus any tax that may be chargeable.", "39. The Court finds no indication that the Russian authorities put pressure on either the applicant ’ s former landlord or the magazine publishers to end their relationship with him. The applicant was not prevented from having a Russian notary public certify his signature on the application for inheritance or from hiring a Ukrainian lawyer to represent him before the competent authorities. In these circumstances, the remainder of the applicant ’ s claim in respect of pecuniary damage must be rejected.", "40. In the Court ’ s view, the applicant suffered non-pecuniary damage as a result of the domestic courts ’ judgments which were incompatible with the Convention requirements. Making its assessment on an equitable basis, the Court awards the applicant EUR 7, 8 00 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "41. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1934 and lives in Pušća. He was represented by Mr Č. Prodanović, an advocate practising in Zagreb.", "3. The Government were represented by their Agent, Ms Š. Stažnik.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant was the President of the Republic of Croatia in the period between 19 February 2000 and 18 February 2010.", "Events giving rise to the dispute", "6. On 15 September 2006 Mr Ivan Jurašinović, an advocate of Croatian origin who was at the time practicing in Angers (France), as the legal representative of a certain Mr M.T., lodged a criminal complaint with the investigating court in Nanterre against a certain Mr M.N. and ten other Croatian nationals, including the applicant, in respect of two counts of the attempted murder of his client and one count of attempted extortion by a criminal organisation. Among the accused was also a certain Mr H.P., who was at the time in the Croatian media portrayed as a well-known mafia boss, and was thus perceived as such by the general public. According to the Croatian media, M.T. was a former member of Croatian secret services and arms dealer.", "7. In his third-party comments before the Court (see paragraphs 64-73 below), Mr Jurašinović stated that in the criminal complaint in question his client had maintained that H.P. had financed the applicant’s election campaign in 2000 and had mentioned the name of the agent of the French security service who had provided him with information to that effect. Mr Jurašinović in his comments before the Court reproduced the relevant part of the said complaint concerning the applicant, who had been accused as being an accomplice in the attempted murder and in the extortion of his client. The relevant part of the criminal complaint read as follows:", "“There is therefore sufficient evidence to suspect H.P. and V.Z. of being the sponsors of the assassination attempt against my client, M.N. being the executioner.", "In so far as the meetings of this mafia organisation are regularly organised [at the address] Pantovčak 28, the headquarters of the company O. – meetings in which Stipe Mesić participates – it follows that Stipe Mesić is the head of this mafia organisation.", "My client has become convinced, and intends to demonstrate this in the course of the upcoming investigation, that Stipe Mesić is leading this mafia organisation ...”", "8. On 10 November 2006, the daily newspapers Novi List and Glas Istre each published an article on their websites in which they reported that Mr Jurašinović had lodged the above-mentioned criminal complaint in relation to attempts to murder his client, M.T. in respect of which the applicant had been mentioned as a “sort of a political patron of the person who ordered the murder, who according to the complaint is [H.P].” The article posted on the Novi List website was entitled “The President [named] in the [criminal] complaint, together with [H.P.] and [M.N.]” and the article posted on the Glas Istre website was entitled “Mesić reported for attempted murder”. There is no evidence to suggest that the exact content of the criminal complaint, as stated above (see paragraph 7), was known to the media.", "9. In both articles it was stated, inter alia, that journalists had contacted Mr Jurašinović by phone and that he had confirmed that the criminal complaint had indeed been lodged, but that he did “not want to go into details, explaining that he is anyway not allowed to do so under French law”. Both articles also reported that Mr Jurašinović had specified that he had lodged the criminal complaint in the name of his client.", "10. In his comments before the Court (see paragraphs 64-73 below), Mr Jurašinović gave further context as to why the media had paid such attention to the criminal complaint that he had lodged on behalf of his client. In his view the media scrutiny had been due to the fact that in early November 2006 another political figure, a certain Mr I.P., had accused the applicant in the media of being responsible for an attempt on his life, after an unknown individual had thrown two hand grenades at his house.", "11. On the same day the above articles (see paragraph 8 above) were published; during a televised press conference organised in the course of a visit paid by the applicant to Našice, journalists asked him to comment on the content of those articles. The applicant stated that he had met H.P. only twice in his life “by chance, in passing” and that he did “not have any connection with him at the time”. Then he added:", "“Why this advocate who lodged the criminal complaint says that I am [H.P.’s] political patron is probably known only to him, but I would suggest to him that he visit Vrapče [a psychiatric hospital] when he comes to Zagreb because people [such as him] can receive effective treatment there. It is a great opportunity; it won’t cost him a lot and our physicians are known for their efficiency.”", "12. This statement was reported on the official website of the President of Croatia, on the websites of the weekly news magazine Nacional, Croatian Radiotelevision ( Hrvatska radiotelevizija – Croatia’s public broadcasting company) and the Croatian American Association, as well as by the Croatian news agency HINA, the web portal Index.hr, the daily newspaper Večernji list and Nova TV.", "Civil proceedings for defamation", "13. Given that under Croatian law the national President has immunity from criminal prosecution but not from civil liability, on 22 January 2007 Mr Jurašinović brought a civil action for defamation against the applicant in the Zagreb Municipal Court ( Općinski sud u Zagrebu ). He sought HRK 70,000 (approximately EUR 17,570 at the material time) in compensation for non-pecuniary damage.", "14. Mr Jurašinović, as the plaintiff, argued that the applicant had used his position as President of Croatia and the related media attention to harm his honour and reputation, and his professional and moral credibility, in the most egregious way and to publicly disqualify him from holding the position of advocate by implying that he was a mentally disturbed person. He submitted that the offensive statement at issue (see paragraph 11 above) had caused him intense emotional distress in the form of anxiety, agitation, insomnia, indignation, heavy psychological pressure and constant tension. He also stated that, after the publication of the impugned statement, he had experienced difficulties in his work and in establishing social and professional contacts, having been constantly forced to justify his actions and answer uncomfortable questions about the applicant’s statement. He also asserted that he had experienced a fall-off in the number of new clients.", "15. In response, the applicant denied having harmed the plaintiff’s honour and reputation and submitted that his statement had not been offensive and that it had not been his intention to offend the plaintiff. Rather, his statement had constituted an attempt at irony in respect of the unfounded severe accusations that had been made against him and had to be understood in the context of his reply to the journalist’s question. The impugned part of his statement had been a figure of speech ( figurativna ) and thus a value judgment rather than an unjustified personal attack against the plaintiff.", "16. On 23 October 2008, the Zagreb Municipal Civil Court ruled in favour of the plaintiff and ordered the applicant to pay him HRK 70,000 in compensation for non-pecuniary damage; it also ordered the applicant to pay to the plaintiff the costs of the proceedings. However, following an appeal by the applicant, that judgment was on 31 May 2011 quashed by the Zagreb County Court ( Županijski sud u Zagrebu ), and the case was remitted to the first-instance court.", "17. In the fresh proceedings, by a judgment of 23 December 2011 the Zagreb Municipal Court again ruled in favour of the plaintiff and ordered the applicant to pay him HRK 70,000 (approximately EUR 9,290 at the material time), together with the accrued statutory default interest, running from the date of the judgment, in compensation for non-pecuniary damage; the court also ordered the applicant to pay the plaintiff HRK 9,300 (approximately EUR 1,235 at the material time) for the costs of the proceedings. The relevant part of that judgment reads as follows:", "“In his statement – uncontested in terms of its content and the fact that it was made public on 10 November 2006 – the defendant suggested to the plaintiff that he visit Vrapče in order to get effective help. [The court finds it convincing] that the plaintiff understood this as implying that he should be treated for mental illnesses or disorders. In particular, it is well known that Vrapče is the location of the best-known Croatian hospital for mental illnesses ...", "... this court ... has established that the defendant did not directly call the plaintiff mentally ill by means of [making] the said statement, but [rather] told him to get treatment in Vrapče, where physicians [would] provide effective help. This [was offensive] to the plaintiff, who understood it as a suggestion that he needed to be treated for a mental illness or disorder ...", "... the defendant breached the plaintiff’s right of personality, namely his honour and reputation, by implying that he should be treated for a mental illness or disorder. In this court’s view it is unacceptable for anyone to state publicly in any manner that someone should be treated for such illnesses or disorders, since that is exclusively a personal matter for every citizen and not information that anyone would be allowed to disclose, let alone suggest treatment for such illness.", "The defendant’s objection that this statement is a value judgment on his part ... is ill ‑ founded. To think something about someone and to say it publicly are two very different things. That is even more the case given that words spoken publicly, especially by the State President, have consequences. In the present case the statement breached the plaintiff’s right of personality – that is to say it [harmed] his honour and reputation – especially because anyone’s need, including that of the plaintiff, to be treated for mental illness, is that person’s personal matter and no one is entitled to comment on it against the will of the person concerned, let alone suggest treatment, if they are not medical professionals. It is correct that Article 38 §§ 1 and 2 of the Croatian Constitution guarantees freedom of thought and expression, but that right may be limited if it causes harm to other persons, as set out in section 8 of the Obligations Act, and by [need to] the protect the rights of personality, as provided in section 19(1) and (2) of the same Act, which results in the application of [its] section 1045(1) ....", "The defendant’s argument about the ironic or symbolic nature of his statement is neither decisive nor acceptable because the manner of expressing oneself in public must in itself be such as to not cause damage to anyone, in accordance with section 8 of the Obligations Act.", "...", "The arguments that the defendant’s statement was perceived by the plaintiff, his clients and parents and fellow advocates as a threat were not accepted. ... [It] is true that Croatia used to be under the Communist rule, and that it is common knowledge that over the entire Communist world, psychiatric hospitals were also used for the internment of political opponents. However, Croatia is now a free democratic country, with a prescribed method of placement in psychiatric hospitals ... and ... it is [therefore] unfounded to conclude that the defendant could by his statement [genuinely have] threatened the plaintiff with placement in such an institution.", "Moreover, in the part of the statement of claim [concerning the factual basis of his civil action], by which the court is bound, the plaintiff nowhere mentions threats or seeks damages [on that account], but [seeks damages] only for the breach of his right of personality – i.e. [for the injury to] his honour and reputation, and not for the possible fear that only a threat can cause. Consequently, the plaintiff’s testimony was not accepted, as [it was] unconvincing in so far as he referred to the fear for his safety [expressed] by his parents, clients and fellow advocates.”", "18. On 30 January 2012 the applicant lodged an appeal against the first ‑ instance judgment.", "19. By a judgment of 26 October 2016, the Zagreb County Court upheld the first-instance judgment but reduced the amount of compensation payable to the plaintiff to HRK 50,000 (approximately EUR 6,660 at the material time), and the costs to HRK 6,057 (approximately EUR 806 at the material time). The applicant was ordered to pay those amounts within fifteen days. The relevant part of that judgment reads as follows:", "“... on the basis of the evidence taken, the first-instance court correctly established that the defendant ... harmed the plaintiff’s honour and reputation by publicly ... implying that the plaintiff should be treated in Vrapče ..., the uncontested location of an institution treating mental or psychiatric illnesses and disorders ... The content of this statement is not allowed in the light of the [relevant] statutory provisions because a person’s health is the personal matter of that person and not public information. By holding that the contested statement was injurious for the plaintiff’s honour and reputation, the first-instance court correctly accepted the plaintiff’s testimony as logical and convincing and found that the statement had harmed his honour and reputation.”", "20. The County Court’s judgment was served on the applicant’s representative on 25 November 2016.", "21. The applicant then, on 23 December 2016, lodged a constitutional complaint against the civil courts’ judgments alleging a breach of his freedom of expression. He relied on Article 38 §§ 1 and 2 of the Croatian Constitution (see paragraph 24 below) and Article 10 of the Convention.", "22. By a decision of 27 September 2017, the Constitutional Court Croatia ( Ustavni sud Republike Hrvatske ) declared the applicant’s constitutional complaint inadmissible, finding that the case did not raise a constitutional issue. That decision was served on the applicant’s representative on 20 October 2017.", "23. In the subsequent enforcement proceedings, on 23 July 2018 the Financial Agency collected HRK 129,552.74 (approximately EUR 17,515 at the material time) from the applicant’s bank account and transferred it to that of Mr Jurašinović. That sum consisted of the principal amount that the applicant had been ordered to pay by the Zagreb Municipal Court’s judgment of 23 December 2011 (as amended by the Zagreb County Court’s judgment of 26 October 2016 – see paragraphs 17 and 19 above) and of the accrued statutory default interest." ]

[ "RELEVANT LEGAL FRAMEWORK", "The Constitution", "24. The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments) provides as follows:", "Article 16", "“(1) Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health.", "(2) Any restriction of rights and freedoms should be proportional to the nature of the necessity for such restriction in each individual case.", "...”", "Article 38", "“(1) Freedom of thought and expression shall be guaranteed.", "(2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions.", "(3) Censorship shall be forbidden. Journalists shall have a right to freedom of reporting and access to information.", "(4) ...", "(5) The right to [demand a] correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.”", "Obligations Act", "25. The Obligations Act ( Zakon o obveznim odnosima, Official Gazette, no. 35/05 with subsequent amendments), which has been in force since 1 January 2006, is the legislation governing contracts and torts. According to that Act, courts are entitled to award compensation for non-pecuniary damage caused, inter alia, by injury to one’s reputation and honour. The relevant provisions of the Obligations Act read as follows:", "Prohibition to Cause Damage", "Section 8", "“Everyone shall refrain from taking any action which may cause damage to another [person].”", "Rights of personality", "Section 19", "“(1) All natural persons or legal entities are entitled to the protection of their rights of personality ( prava osobnosti ) under the conditions provided by law.", "(2) Rights of personality within the meaning of this Act are the right to life, physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc.", "(3) ...”", "Grounds for liability", "Section 1045(1)", "“Anyone who causes damage to another shall compensate it, unless he or she proves that the damage occurred through no fault of his or her own.”", "Damage", "Section 1046", "“Damage is the diminution of one’s property (actual damage), prevention of its increase (lost profits), or a breach of a right of personality (non-pecuniary damage).”", "...", "V. REDRESS FOR NON-PECUNIARY DAMAGE", "Publication of a judgment or correction", "Section 1099", "“In the event of a breach of a right of personality the victim may seek, at the expense of the wrongdoer, publication of the judgment or of a correction, retraction of the statement that caused the breach, or any other form of redress capable of attaining the purpose [otherwise] achieved by an award of damages.”", "Non-pecuniary damages", "Section 1100", "“(1) In the event of a breach of a right of personality, the court shall award non ‑ pecuniary damages if it finds that the severity of the breach and the circumstances of the case justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage.", "(2) When deciding on the amount of non-pecuniary damages, the court shall take into account the intensity and duration of the physical pain, mental anguish and fear caused by the breach, the purpose of those damages, and [the requirement that] they should not favour aspirations that are incompatible with their nature and social purpose.”", "OTHER LEGISLATION", "26. The relevant domestic law and practice concerning length ‑ of ‑ proceedings remedies in Croatia is set out in Mirjana Marić v. Croatia (no. 9849/15, §§ 29-41, 30 July 2020). Specifically, the relevant provisions of the 2005 Courts Act are set out in detail in Vrtar v. Croatia (no. 39380/13, § 51-56 and 61-64, 7 January 2016).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "27. The applicant complained that the Zagreb Municipal Court’s judgment of 23 December 2011 (as amended by the Zagreb County Court judgment of 26 October 2016) ordering him to pay damages for the injury caused to Mr Jurašinović’s reputation (see paragraphs 17 and 19 above) had constituted a violation of his freedom of expression. He relied on Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "AdmissibilityThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "(a) The Government", "28. The Government argued that Article 10 was inapplicable to the present case and that this complaint was, in any event, of a fourth-instance nature.", "29. The Government averred that by making the impugned statement the applicant had not intended to impart ideas or incite a debate on an issue of public interest. Rather, his only intent had been to publicly insult Mr Jurašinović. Consequently, Article 10 was inapplicable in the present case (the Government referred to Rujak v. Croatia, no. 57942/10, 2 October 2012).", "30. In the alternative, the Government submitted that in his application the applicant had challenged the factual findings of the domestic courts by claiming that his statement had not been an insult or made with the intention of causing offence, that it had constituted a value judgement, that it had been taken out of context and that nobody could have taken it literally. However, since it was not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, the applicant’s complaint was of a fourth ‑ instance nature.", "(b) The applicant", "31. The applicant replied that his statement had not been given without any context (which could have led to the conclusion that it had constituted a gratuitous personal attack on Mr Jurašinović). Rather, it had been made in reply to a question posed by journalists regarding Mr Jurašinović’s manifestly unfounded accusation, which had been made against him as the president of a sovereign country before the authorities of another State. By accusing the applicant of being a political patron of criminals and linking him to an incident of attempted murder, Mr Jurašinović had knowingly entered the public sphere and could have expected that such accusations would provoke the applicant into making a public response. By making the statement in question the applicant had sought to protect public confidence both in himself as a person and in the institution of President. His statement had thus concerned a matter of public interest.", "32. The applicant furthermore maintained that his arguments were not of a fourth-instance nature. Before the Court he had argued that there had been an unjustified interference with his freedom of expression, as the domestic courts had not taken into account all the relevant circumstances and had failed to find a fair balance between the two conflicting rights at stake. He had thus not asked the Court to reassess evidence and establish the facts anew but to examine whether his freedom of expression guaranteed by the Convention had been violated.", "The Court’s assessment", "33. The Court reiterates that an offensive statement may fall outside the protection of freedom of expression in very rare and exceptional circumstances where it amounts to wanton denigration and its sole intent is to insult. For example, in the Rujak case, where the applicant’s statement mostly concerned vulgar and offensive language, the Court, having formed its judgment on the basis of the context of those statements, held that he had not been trying to “impart information or ideas” but that his only intention had been to insult. The Court thus declared the applicant’s complaint under Article 10 of the Convention inadmissible as being incompatible ratione materiae (see Rujak, cited above).", "34. In the Court’s view, such circumstances do not obtain in the present case. Taking into account the circumstances in which it was given, the Court finds that by his statement the applicant wished to deny serious allegations made against him in the criminal complaint prepared and lodged by Mr Jurašinović on behalf of his client (see also paragraph 45 and 51 below). It thus cannot be said that the applicant was not trying to impart any information or ideas and that his sole intent was to insult Mr Jurašinović.", "35. It follows that the Government’s objection as regards the applicability of Article 10 of the Convention must be dismissed.", "36. As regards the Government’s remaining argument as to how the applicant’s statement should be characterised (see paragraph 30 above), the Court considers that it will more appropriately be addressed at the merits stage (see paragraphs 80-81 and 98-101 below).", "37. The Court furthermore notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "(a) The applicant", "38. The applicant contended that the interference with his freedom of expression had not been lawful, that it had not pursued a legitimate aim and that it had not been proportionate.", "39. As regards the lawfulness of the interference, the applicant submitted that the Government had not specified the provision(s) of the Obligations Act that had constituted the legal basis for the interference in question. He also argued that the damages that he had been ordered to pay had been of a punitive nature, in breach of the domestic law.", "40. The interference had not pursued a legitimate aim because the domestic courts had given excessive weight to the protection of Mr Jurašinović’s reputation at the expense of the applicant’s freedom of expression.", "41. The domestic courts in his case had not given relevant and sufficient reasons to justify the interference. Specifically, because those courts had not applied the relevant standards developed in the Court’s case-law, they had not properly weighed the two conflicting rights at stake and had thus failed to find a fair balance between them. The resultant interference had therefore not been proportional to the aim that it had sought to achieve.", "42. The applicant submitted that his statement had been made in reaction to the accusation made by Mr Jurašinović linking him to an attempted murder and to organised crime. Accusing the President of a sovereign State of such a crime was certainly a matter of public interest. In replying to such accusation, he had not only sought to protect his own reputation but also the reputation of the office and the institution of the President of Croatia and the reputation of the State itself.", "43. By making such an accusation Mr Jurašinović had initiated a debate on an issue of public interest and must have been aware of the effects it would have on public opinion. He had thus consciously entered the public sphere.", "44. As regards the Government’s argument that the accusation in question had not been made publicly (see paragraph 56 below), the applicant pointed out that Mr Jurašinović had confirmed to journalists that he had lodged a criminal complaint containing the accusation (see paragraph 9 above). The applicant also wondered how the journalists had learned of the content of the criminal complaint.", "45. The applicant furthermore submitted that his statement had been an ironic comment and that he had used a “personified metaphor” ( koristeći se personificiranom metaforom ) and, as such, a value judgment made in reply to completely unfounded serious allegations against him. It could thus not be understood literally, as a statement of fact and/or as a gratuitous personal attack on Mr Jurašinović. The applicant therefore had not needed to prove the veracity of his metaphorical statement. He pointed out that according to the Court’s case-law, freedom of expression applied to sarcastic statements as well as to those that offended, shocked or disturbed (the applicant cited Katrami v. Greece, no. 19331/05, §§ 33-42, 6 December 2007, and Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI).", "46. In this respect the applicant pointed out that he himself had been called an “idiot” by one of his political opponents in a newspaper article and that he had instituted criminal proceedings for defamation as a private prosecutor against that politician. Although the criminal courts had ruled in his favour, the Constitutional Court had overturned their judgments, classifying the statement of the accused as a value judgment; that is to say the Constitutional Court had taken a legal view diametrically opposite to its own view in the present case.", "47. As regards the consequences that his statement had allegedly had for Mr Jurašinović’s reputation (see paragraph 14 above), the applicant submitted that they had been grossly exaggerated by Mr Jurašinović and were difficult to believe. The applicant furthermore argued that the consequences of the accusation levelled against him would have been far greater if it had remained unanswered than the consequences allegedly suffered by Mr Jurašinović on account of the applicant’s statement in reply.", "48. Accusing someone of sponsoring a murder could not be considered as the kind of criticism for which politicians should have unlimited and unconditional tolerance. Accordingly, the expectation that political figures should display a higher level of tolerance than would be expected of non ‑ public figures did not mean that they had to refrain from replying to criticism against them – especially to wholly unfounded and very serious accusations, such as the one in the present case. That had been confirmed by the Court which in its case-law had often pointed out that the Government should, instead of resorting to criminal proceedings, use other means available for replying to the unjustified attacks and criticisms of its adversaries or the media (the applicant referred to Castells v. Spain, 23 April 1992, § 46, Series A no. 236).", "49. As regards the comments by Mr Jurašinović as an interested third party (see paragraphs 64-73 below), the applicant firstly pointed out that the content of the criminal complaint and the reasons for lodging it had been unknown to him before Mr Jurašinović had mentioned them in his comments before the Court (see paragraphs 7 and 10 above and paragraph 65 below); secondly, the accusations contained therein had been completely unfounded and that their nature actually demonstrated how absurd and arbitrary they had been.", "50. As regards the comments made by the remaining two interveners (see paragraph 74 below), the applicant submitted that they had been completely misplaced and irrelevant because the present case concerned his own freedom of expression, and not that of Mr Jurašinović, which had not been restricted in any way. In any event, linking – in a criminal complaint – a State President with attempted murder and organised crime without any evidence and then leaking those accusations to the media with a view to tarnishing the President’s reputation and creating a negative public opinion of him and thereby putting pressure on the courts, went beyond the freedom of expression enjoyed by advocates in the exercise of their profession.", "51. Lastly, the applicant vehemently denied as absurd the suggestion made by all the interveners that by his statement he had intended to discredit Mr Jurašinović and to threaten him with involuntary psychiatric confinement so that he would stop representing his client. He reiterated that his statement had merely been an ironic reply to serious and baseless accusations made publicly against him (see paragraph 45 above).", "(b) The Government", "52. The Government submitted that, if the Court were to find Article 10 of the Convention applicable in the present case, they would not deny that there had been an interference with the applicant’s freedom of expression. However, the interference in question had been in accordance with the law, it had pursued a legitimate aim, and it had been necessary in a democratic society.", "53. The interference had been lawful because the domestic courts’ judgment ordering the applicant to pay non-pecuniary damages to Mr Jurašinović had been based on section 1045(1) of the Obligations Act (see paragraph 25 above). It had also pursued the legitimate aim of protecting the reputation and the rights of others – namely the reputation of Mr Jurašinović. It had also been “necessary in a democratic society”, having regard to the criteria established in the Court’s case-law (the Government cited Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012) for determining whether the requisite balance had been struck between the freedom of expression and the right to respect for private life.", "54. The applicant’s statement (implying that Mr Jurašinović needed psychiatric treatment) had not imparted information of public interest. In that respect the Government referred to the domestic courts’ finding that it was unacceptable to state publicly that someone should be treated for a mental illness or disorder since that was a personal matter and not the kind of information that anyone would be allowed to disclose, let alone suggest treatment for such illness (see paragraph 17 above). The applicant had thus disclosed information about the health of Mr Jurašinović that had had nothing to do with the public interest, and the public had not in any way benefitted from the false information that Mr Jurašinović should be treated in a psychiatric hospital.", "55. Mr Jurašinović was an advocate of Croatian origin living and practicing in France. Although he had appeared in the media by virtue of his profession, it could not be said that he was known to the wider public. Thus, he could not be considered a public figure and as such be expected to have a greater degree of tolerance of criticism. Even though he was himself a lawyer, the applicant had also failed to take into account the fact that Mr Jurašinović had lodged the criminal complaint as an advocate acting on behalf of his client.", "56. The allegation that had provoked the impugned statement had thus not been made publicly, and nor had it been intended for a public readership. Likewise, the content of the said criminal complaint had not been disclosed by Mr Jurašinović, who had only confirmed to the above-mentioned journalists that he had lodged it in his capacity as an advocate acting on behalf of his client, and had refrained from making any further comments (see paragraph 9 above). The Government also stressed that a criminal complaint was a legal instrument whereby the person lodging it merely expressed the suspicion that a criminal offence had been committed, thus bringing that alleged offence to the attention of the prosecuting authorities, in order that they might investigate whether that suspicion was well- or ill ‑ founded.", "57. The domestic courts had held that the applicant’s statement had constituted a statement of fact and not a value judgment. That statement had been unsubstantiated and completely untrue, and its sole intent had been to insult. As regards the applicant’s argument that his statement had been purely metaphorical in nature and as regards his reference to the Court’s case-law (see paragraph 45 above), the Government submitted that the present case concerned neither criminal proceedings nor journalistic freedom (which could allow, to a certain degree, for exaggeration and even provocation).", "58. The award that the applicant had been ordered to pay, which amounted to two of his monthly salaries as President, had not been disproportionate. Being publicly portrayed by the State President as “a crazy lawyer who belongs in a mental institution” had had harmful consequences for Mr Jurašinović’s professional and private life, which he had described before the domestic courts (see paragraph 14 above). The domestic courts had accepted that such statements could indeed lead to such consequences and held that words spoken by the State President carried more weight than words spoken by ordinary people. In making the award those courts had taken into account the intensity and duration of the emotional distress suffered by Mr Jurašinović, as well as numerous unpleasant situations that he had been faced with in his professional environment. The level of damages the applicant had been ordered to pay had also to be seen in the light of the fact that his statement had not been in the public interest (in that connection they referred to the arguments set out in paragraphs 29 and 54 above). For those reasons the damages that the applicant had been ordered to pay could not have had a chilling effect on his freedom of expression.", "59. Having regard to the foregoing (see paragraphs 52-58 above), the Government argued that the domestic courts had undertaken a balancing exercise in conformity with the criteria laid down in the Court’s case-law, and had struck the right balance between freedom of speech and the public interest on the one hand, and the rights of Mr Jurašinović under Article 8 of the Convention on the other. Moreover, the reasons that those courts had set out in their decisions had been relevant and sufficient. Thus, there were no strong reasons for the Court to substitute its view for that of the domestic courts.", "60. The Government then went on to argue that the expectation that political figures should display a higher level of tolerance than would be expected of non-public figures did not only mean that they should refrain from instituting criminal or civil proceedings against persons who may have tarnished their reputation. Rather, it also meant that they must sustain from replying to such criticism in a manner that may be injurious to the reputation of those who had offended them in the first place.", "61. The Court had often in its case-law warned of the importance of the public officials’ choice of words – for example in cases concerning the presumption of innocence (they referred to Peša v. Croatia, no. 40523/08, §§ 138-51, 8 April 2010).", "62. The applicant, as a high-ranking official, should have therefore chosen his words with particular care and reacted in a different way to the allegation articulated in the above-mentioned criminal complaint. In other words, he should have refrained from insulting the advocate who had lodged that complaint on behalf of his client in the exercise of his professional duty and who was not obliged to tolerate criticism to the same extent as the applicant.", "63. The Government fully endorsed the arguments of the third parties (see paragraphs 64-74 below) – in particular that of Mr Jurašinović emphasising the fact that the allegation that had provoked the applicant’s statement had not been made publicly and that neither had Mr Jurašinović made it available to the public. They reiterated their position that politicians were obliged to show greater tolerance of criticism than would be expected of non-public figures – especially if it had not been voiced publicly, as in the present case. The applicant should have therefore refrained from making the impugned disparaging statement (the only goal of which had been to harm the reputation and honour of Mr Jurašinović).", "(c) The third-party interveners", "(i) Mr Jurašinović", "64. Mr Jurašinović submitted that he had an interest in intervening in the present case both in his professional capacity as an advocate, and in his private capacity as the victim of the applicant’s statement, which had been injurious to his reputation.", "65. He firstly explained in greater detail the reasons for his lodging the criminal complaint on behalf of his client, gave certain details regarding its content (see paragraph 7 above), and the reasons behind the media interest that it had it attracted (see paragraph 10 above).", "66. He then emphasised that he had lodged the criminal complaint in question in his professional capacity, namely as the advocate of his client, M.T., in respect of certain facts that could be interpreted as constituting a criminal offence. The French authorities had then opened an investigation that had lasted several years.", "67. Mr Jurašinović furthermore stressed that he had not made any public statement as regards the applicant. When the journalists had enquired about the criminal complaint that he had lodged on behalf of his client, he had merely confirmed that the complaint had indeed been lodged against certain Croatian nationals. He had not mentioned their names as he had been bound to maintain the secrecy of the investigation.", "68. In view of this it could not be argued, as the applicant had (see paragraph 43 above), that by his actions Mr Jurašinović had consciously entered the public sphere and opened himself to criticism. For that reason the present case could not be compared to those concerning politicians (including the applicant – see paragraph 46 above) who had been publicly criticised, often by other politicians.", "69. As regards the question of how journalists had learned of the criminal complaint and its contents, Mr Jurašinović had only mentioned that his client had retained one copy of it.", "70. When replying to the journalists’ question about his links with H.P., the applicant had targeted him personally instead of his client. In so doing he had used a harsh medical metaphor that had a meaning for all Croats who had lived under the Communist regime. Involuntary psychiatric confinement had been a method of silencing political opponents in many Communist countries and the former Yugoslavia had not been an exception (he referred to Amnesty International’s 1982 report and noted that the applicant had been the last President of Yugoslavia).", "71. By threatening him with involuntary psychiatric confinement the applicant had sought to discredit him and to force him to abandon the defence of his client.", "72. As regards the applicant’s argument that the impugned statement had concerned a matter of public interest (see paragraph 42 above), Mr Jurašinović contended that while the possible involvement of a State President in an attempted murder had certainly been a matter of public interest, the applicant had failed to explain how the above-mentioned offensive and menacing statement – directed at him as an advocate and not at his client – had contributed to a constructive debate on that matter.", "73. Mr Jurašinović furthermore submitted that finding a violation of Article 10 in the present case would affect his reputation as an advocate because it would amount to professional criticism. It would also deny the harm that he had suffered on account of the applicant’s statement (see paragraph 14 above), which had been redressed by the domestic courts.", "(ii) The National Bar Council and the Paris Bar Association", "74. The interveners, referring to a number of cases in which the Court had emphasised the need to protect the freedom of expression of advocates, argued that the Court should find that condemnation by the domestic courts of a person who made menacing statements against an advocate for doing his job did not constitute a violation of Article 10 of the Convention, as such interference pursed a legitimate aim, was proportional, and was necessary in a democratic society. The absence of sanctions against intimidating or menacing statements or threats against advocates, especially if such statements came from influential public figures, could compel advocates to abandon the defence of their clients and could thus have serious consequences for the rights of defence and the right of access to a court, which were essential components of the right to a fair trial guaranteed by Article 6 § 1 of the Convention.", "The Court’s assessment", "(a) As to whether there was an interference", "75. The Court notes that in its judgment of 23 December 2011 (which was amended by the Zagreb County Court’s judgment of 26 October 2016), the Zagreb Municipal Court held that the applicant’s statement of 10 November 2006 (see paragraph 11 above) had been injurious to the reputation of Mr Jurašinović and ordered the applicant to pay him HRK 50,000 (approximately EUR 6,660 at the material time) in compensation for the resultant non-pecuniary damage, as well as HRK 6,057 (approximately EUR 806 at the material time) in costs (see paragraphs 17 and 19 above).", "76. In the light of its above finding that the applicant may rely on Article 10 of the Convention in the present case (see paragraphs 33-34 above), and having regard to its case-law (see, for example, Stojanović v. Croatia, no. 23160/09, § 56, 19 September 2013), the Court finds that the judgment in question constituted an interference with the applicant’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "(b) Lawfulness and legitimate aim", "77. As to the lawfulness of the interference in question, the Court notes that it had a legal basis in domestic law as it was based on the relevant provisions of the Obligations Act (see paragraphs 17 and 25 above). The Court also considers that the legislation in question met the qualitative requirements of accessibility and foreseeability. It is therefore satisfied that the interference with the applicant’s freedom of expression was “prescribed by law”, as required by Article 10 § 2 to the Convention.", "78. The Court likewise accepts that the interference pursued a legitimate aim, as it was intended to protect the reputation or rights of others – namely the reputation of Mr Jurašinović.", "79. Having established that the interference with the applicant’s freedom of expression in the present case was lawful and pursued a legitimate aim, the only remaining question for the Court to determine is whether it was “necessary in a democratic society”.", "(c) “Necessary in a democratic society”", "(i) General principles", "80. In determining whether an interference with the freedom of expression was “necessary in a democratic society” the Court’s task is to review the decisions of the competent national authorities by examining whether the reasons they adduced to justify the interference were relevant and sufficient. In doing so, the Court has to satisfy itself that those authorities applied standards that were in conformity with the principles embodied in Article 10 and relied on an “acceptable assessment of the relevant facts” (see, among many other authorities, Perinçek v. Switzerland [GC], no. 27510/08, § 196, ECHR 2015 (extracts)).", "81. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see, for example, Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 62, 22 October 2009, and Stojanović, cited above, § 65). It has, however, held that such elements exist in cases where the decisions of the domestic authorities were not based on “an acceptable assessment of the relevant facts” (see, for example, Stojanović, cited above, § 70, and Chemodurov v. Russia, no. 72683/01, §§ 28-29, 31 July 2007),", "82. The Court has consistently held that when examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation ... of others”, it may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention that may come into conflict with each other in certain cases – namely on the one hand freedom of expression, as protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see, among many other authorities, Axel Springer AG, cited above, § 84).", "83. However, in order for Article 8 of the Convention to come into play, an attack on a person’s reputation must attain a certain level of seriousness and its manner must cause prejudice to personal enjoyment of the right to respect for private life (ibid., § 83). The Court therefore first needs to examine whether Mr Jurašinović’s Article 8 rights were engaged, in order to determine whether the applicant’s Article 10 right is to be balanced against Mr Jurašinović’s Article 8 right to protection of his reputation.", "(ii) Application of the above-mentioned principles to the present case", "84. The Court notes that the applicant stated that Mr Jurašinović needed psychiatric treatment (see paragraph 11 above). The applicant made that statement when he was the State President, and it was widely distributed by various media outlets (see paragraphs 5 and 12 above). Therefore, regardless of whether that statement should have been understood literally (as the domestic courts held – see paragraphs 17 and 19 above) or metaphorically (as the applicant submitted – see paragraph 45 above) – which is a matter to be examined below (see paragraph 99) – the Court accepts that it was not only capable of tarnishing the reputation of Mr Jurašinović, but also of fomenting prejudice against him in both his professional and social environments. Accordingly, the Court finds that the applicant’s statement attained a level of seriousness capable of bringing Mr Jurašinović’s rights under Article 8 of the Convention into play. By way of observation, the Court also considers that referring to a need of psychiatric treatment and using it as an insult is disrespectful of persons with mental health issues.", "85. The Court further reiterates that in cases concerning a conflict between the right to reputation and the right to freedom of expression, domestic courts hearing defamation claims are expected to perform a balancing exercise between those two rights (see Perinçek, cited above, §§ 198-99), in line with the criteria established in the Court’s case-law regarding that type of case, which include:", "- whether a contribution has been made to a debate of public interest,", "- the notoriety of the person concerned,", "- his or her prior conduct,", "- the content, form and consequences of the statement in question, and", "- the severity of the sanction imposed (see, among many other authorities, Axel Springer AG, cited above, §§ 78‑95, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 82-93, 10 November 2015).", "86. In cases such as the present one, domestic courts may also be required to take into account certain additional criteria: in this case, for example, the applicant’s status as a politician and as a high-ranking State official, and on the other hand, Mr Jurašinović’s status as an advocate, may be of importance for the outcome of the balancing exercise.", "87. Where such a balancing exercise has been undertaken, the Court would require strong reasons to substitute its view for that of the domestic courts (see Delfi AS v. Estonia [GC], no. 64569/09, §§ 138-39, ECHR 2015, with further references).", "88. However, even though the civil courts recognised that the present case concerned two conflicting rights (see paragraphs 17 and 19 above), in their examination they made no reference to the relevant criteria developed in the Court’s case-law (see paragraph 85 above). Instead, they examined the case only in terms of civil law, without taking into account its constitutional and Convention aspects.", "89. It is evident from the text of their decisions (see paragraphs 17 and 19 above) that those courts did not, for example, examine whether the applicant’s statement concerned a matter of public interest or take into account the context in which it was made.", "90. The domestic civil courts classified the applicant’s statement as a factual statement rather than a value judgment (see paragraphs 17 and 19 above). Specifically, those courts limited their analysis to the fact that the applicant had implied that Mr Jurašinović should be treated for a mental illness or disorder. In their view it was unacceptable for anyone to state publicly whether someone should be treated for such illnesses or disorders, since such an issue was exclusively the personal matter of every citizen (see paragraphs 17 and 19 above).", "91. It thus follows that, contrary to the Government’s argument (see paragraph 59 above), the civil courts failed to carry out the required balancing exercise between Mr Jurašinović’s reputation and the applicant’s freedom of expression (compare Perinçek, cited above, § 278; Reznik v. Russia, no. 4977/05, § 43, 4 April 2013; and Milisavljević v. Serbia, no. 50123/06, § 38, 4 April 2017).", "92. Similarly, the Constitutional Court did not examine the case from a constitutional-law perspective but instead simply declared the applicant’s constitutional complaint inadmissible, finding that the case did not raise any constitutional issue (see paragraph 22 above).", "93. Since the domestic courts did not apply the criteria laid down in the Court’s case‑law for balancing freedom of expression with the right to reputation (see paragraphs 85-86 above), the Court finds that it must carry out the required balancing exercise itself (see Perinçek, cited above, § 279).", "(α) The notoriety and prior conduct of the person concerned", "94. The Court considers that Mr Jurašinović had not been a public figure before information regarding part of the content of the criminal complaint was reported by the Croatian media, and nor did he make any public statement regarding the applicant. When contacted by journalists he only confirmed that he had lodged the criminal complaint in his professional capacity – namely as an advocate acting on behalf of his client, and refrained from making any further comments (see paragraph 9 above).", "95. While it is unclear how the content of the criminal complaint reached the media, Mr Jurašinović denied disclosing that information (see paragraphs 67 and 69 above).", "96. The Court therefore agrees with the Government (see paragraph 56 above) that the allegation which provoked the applicant’s statement was not made publicly; nor was it intended for a public readership. Likewise, it cannot be said that Mr Jurašinović knowingly entered the public sphere.", "97. His situation thus could not be compared to that of persons who voluntarily expose themselves to public scrutiny by virtue of their role as politicians, public figures or participants in a public debate on a matter of public interest, and who are therefore required to display a higher level of tolerance than would be expected of non-public figures, in respect of which wider limits of criticism are acceptable (see, for example and mutatis mutandis, Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009).", "(β) The content and form of the statement and its contribution to a debate of public interest", "98. As noted above (see paragraph 90), the domestic civil courts classified the applicant’s statement as a factual statement rather than a value judgment (see paragraphs 17 and 19 above). They therefore summarily dismissed the applicant’s argument that his statement had been purely metaphorical and instead interpreted it rather narrowly and strictly literally (see paragraphs 17 and 19 above).", "99. However, in view of the fact that even Mr Jurašinović understood it as a harsh medical metaphor (see paragraph 70 above), the Court cannot but conclude that the impugned statement was indeed a metaphor and as such constituted a pure value judgment and was therefore not susceptible of proof.", "100. In the Court’s view, the alleged involvement of a State President in an attempted murder and/or his possible links with organised crime is undoubtedly a matter of public interest. The applicant had a right to reply to such an accusation and to defend himself, which he did first by making certain factual statements denying any connections with H.P., a person associated with organised crime (see paragraph 11 above).", "101. Nevertheless, the applicant did not only express his opinion that the idea of him being behind an attempted murder and having connections with organised crime was absurd but went a step further and attempted to discredit Mr Jurašinović as a person to be trusted by an offensive statement using belittling and impertinent terms. There is nothing to suggest that the applicant could not have denied the serious accusations against him without using the impugned language. By personally insulting Mr Jurašinović, the applicant made no contribution to a debate on a matter of public interest and went beyond the limits of acceptable criticism.", "102. As regards the form of the statement, the Court reiterates that the applicant made the statement in question when he was the State President, and that it was widely distributed by various media outlets (see paragraphs 5, 12 and 84 above). His statement was thus capable of causing greater harm to the reputation of Mr Jurašinović.", "(γ) The applicant’s status as a high-ranking State official and Mr Jurašinović’s status as an advocate", "103. As regards high-ranking State officials, the Court has emphasised the importance of their freedom of expression by holding that, in order to protect their free speech in the exercise of their functions and to maintain the separation of powers in the State, it is acceptable in a democratic society for States to afford functional immunity to their heads of State (see Urechean and Pavlicenco v. the Republic of Moldova, nos. 27756/05 and 41219/07, § 47, 2 December 2014).", "104. On the other hand, the Court has also acknowledged, albeit in different circumstances, that, generally speaking, words spoken by high ‑ ranking State officials, such as the applicant in the present case, carry more weight.", "105. For example, the Court has in a number of cases emphasised the importance of the words chosen by public officials in their statements regarding persons suspected of a criminal offence before such persons have been tried and found guilty. The Court has accordingly found violations of Article 6 § 2 of the Convention on account of prejudicial statements made by various high-ranking State officials, such as the State President (see Peša, cited above, §§ 148-51), the Prime Minister (ibid.; see also Gutsanovi v. Bulgaria, no. 34529/10, § 194-98, ECHR 2013 (extracts)), the Minister of Justice (see Konstas v. Greece, no. 53466/07, §§ 43 and 45, 24 May 2011) and the Speaker of Parliament (see Butkevičius v. Lithuania, no. 48297/99, § 53, ECHR 2002 ‑ II (extracts)).", "106. Likewise, the Court has also considered that certain statements by high-ranking State officials were ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, § 147, 21 January 2016, which concerned the Prime Minister’s statement, and Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, ECHR 2002 ‑ VII, which concerned, inter alia, the statement by the State President).", "107. The Court has in a number of cases emphasised that lawyers play a vital role in the administration of justice and that the free exercise of the profession of lawyer is indispensable to the full implementation of the fundamental right to a fair trial guaranteed by Article 6 of the Convention (see, for example, Morice v. France [GC], no. 29369/10, §§ 132-39, ECHR 2015, and Nikula v. Finland, no. 31611/96, § 45, ECHR 2002 ‑ II).", "108. It is further mindful of the occurrence of harassment, threats and attacks against lawyers in many Council of Europe member States. However, in the present case the domestic courts established that the applicant’s statement had not constituted a threat of involuntary psychiatric confinement (see paragraph 17 above). The Court has no reason to question that assessment.", "109. Nonetheless, it considers that high-ranking State officials attacking the reputation of lawyers and making them objects of derision with a view to isolating them and damaging their credibility – as the applicant did in the present case – is often as effective as a threat in preventing lawyers from exercising their professional duties. Such statements could, as noted by the interveners (see paragraph 74 above), have serious consequences for the rights of the accused and the right of access to a court, which are essential components of the right to a fair trial guaranteed by Article 6 § 1 of the Convention.", "110. Lastly, the Court is mindful of the fact that at the time that the applicant made the impugned statement, Mr Jurašinović was bound by the secrecy of criminal investigation in France (see paragraph 9 above). This precluded him from replying (by, for example, arguing that the accusations made in the criminal complaint were not absurd as the applicant’s statement suggested) and placed him in an even more disadvantageous position vis-à ‑ vis the applicant, a powerful public figure who, because of his role as a State President, enjoyed great media attention.", "(δ) Consequences of the statement and the severity of the sanction", "111. The amount in non-pecuniary damages that the applicant was ordered to pay was HRK 50,000 (approximately EUR 6,660 at the material time). This sum amounted, for example, to two-thirds of what Croatian courts normally award in non-pecuniary damages in respect of mental anguish caused by the wrongful death of a sibling (see the Supreme Court’s guidelines referred to in Klauz v. Croatia, no. 28963/10, § 31, 18 July 2013).", "112. While the size of that award may therefore appear substantial, the Court reiterates its findings above that (a) words spoken by high-ranking State officials carry more weight (see paragraphs 104-105 above) and, consequently, statements made by them that are injurious to the reputation of others cause greater harm, and that (b) the applicant’s statement, to which Mr Jurašinović was not in a position to reply, was widely distributed by various media outlets (see paragraphs 84, 102 and 110 above).", "113. Moreover, as established above (see paragraph 109), the applicant’s statement was not only injurious to Mr Jurašinović’s reputation but was also capable of having a “chilling”, dissuasive effect on his exercise of his professional duties as an advocate. Therefore, the award of damages in the present case was, despite its size, an appropriate sanction to neutralise that chilling effect and proportionate to the legitimate aim of protecting the reputation of Mr Jurašinović.", "(iii) Conclusion", "114. Having regard to all the foregoing considerations, the Court concludes that the interference with the applicant’s freedom of expression was “necessary in a democratic society” for the protection of Mr Jurašinović’s reputation and to avoid a “chilling effect” on professional duties carried out by advocates.", "115. There has accordingly been no violation of Article 10 of the Convention in the present case.", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "116. The applicant complained that the length of the civil proceedings (see paragraphs 13-22 above) had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "AdmissibilityThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "117. The Government firstly submitted that the applicant had failed to exhaust the available domestic remedies in that he had not used the length ‑ of ‑ proceedings remedy available under the 2005 Courts Act, which had been in force until 13 March 2013.", "118. The Government furthermore pointed out that in his observations the applicant had tried to extend the scope of his initial complaint by submitting that the proceedings complained of had ended only when the Constitutional Court (see paragraph 119 below) had decided his constitutional complaint. However, in his application to the Court he had only complained of the length of the proceedings before the Zagreb County Court (see paragraphs 18-20 above).", "119. The applicant replied that the remedy in question was not effective and that during the period before 13 March 2013 the proceedings complained of had not exceeded a reasonable time. In any event, even after that date it had still taken four and a half years before the proceedings had been terminated by the decision of the Constitutional Court. During that period the case had been pending for three years and some seven and a half months before the Zagreb County Court, as the second-instance court.", "The Court’s assessment", "(a) The scope of the applicant’s complaint", "120. The Court notes that in his application to the Court the applicant formulated his complaint concerning the excessive length of proceedings in the following terms:", "“... the applicant points out that the second-instance court, in deciding the applicant’s appeal against the judgment of the first-instance court, did not render the judgment within a reasonable time, which is why the applicant considers that his right to have his case examined by the court within a reasonable time has been breached ...", "In particular, the applicant lodged an appeal against the first-instance judgment on 27 January 2012, and the second-instance court rendered the decision only on 26 October 2016. It follows that the second-instance proceedings lasted a little less than five years. The proceedings in their entirety lasted almost ten years, which is not justified, given that the case was not big or complex.”", "121. The Court therefore finds it evident that the applicant from the outset complained of the overall length of the civil proceedings, placing particular emphasis on the length of the proceedings before the County Court (see paragraphs 18-20 above). He reiterated his complaint in his observations (see paragraph 119 above), it being understood that applicants may subsequently elucidate or elaborate upon their initial submissions, and that the Court must take into account not only the application form but the entirety of their submissions in the course of the proceedings before it, which may eliminate any initial omissions or obscurities (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 129, 20 March 2018).", "(b) Exhaustion of domestic remedies", "122. The Court reiterates that in the period between 29 December 2005 and 13 March 2013 a request for protection of the right to a hearing within a reasonable time under the 2005 Courts Act (see paragraph 26 above) was recognised by the Court as an effective remedy under Article 13 of the Convention. This also meant that it had to be exhausted for the purposes of Article 35 § 1 before any complaints concerning the excessive length of judicial proceedings in Croatia were brought before the Court (see Pavić v. Croatia, no. 21846/08, § 36, 28 January 2010, and Mirjana Marić v. Croatia (no. 9849/15, § 37, 30 July 2020).", "123. In the present case the applicant did not use that remedy – which was both effective and available to him – to complain of the excessive length of the proceedings in his case. By 13 March 2013 those proceedings had already lasted six years and almost two months over two levels of jurisdiction (see paragraphs 13-18 above), which could be considered excessive.", "124. Having regard to the Court’s case-law (see, mutatis mutandis, Mirjana Marić, cited above, §§ 69-70), it follows that this complaint, in so far as it concerns the period before 13 March 2013, is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected, pursuant to Article 35 § 4.", "(c) Conclusion as to admissibility", "125. What remains to be examined is the period between 14 March 2013 and 20 October 2017 (when the Constitutional Court’s decision of 27 September 2017 was served on the applicant’s representative – see paragraph 22 above), during which the proceedings lasted for four years and some seven months at two levels of jurisdiction (see paragraphs 18-22 above).", "126. The Court notes that, to the extent that the applicant’s length ‑ of ‑ proceedings complaint concerns that period, it is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "127. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "128. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of justifying the length of the civil proceedings in the instant case.", "129. In the relevant period (see paragraph 125 above) there were no delays attributable to the applicant. The proceedings took place before the appellate court and the Constitutional Court, and no hearings were held (see paragraphs 18-22 above). The delays in that period were mainly attributable to the authorities, as it took three years and some seven and a half months for the Zagreb County Court to decide the applicant’s appeal (see paragraphs 18-19 above).", "130. Having regard to its case-law on the subject (see, for example, Mirjana Marić, cited above §§ 71 and 90-91), the foregoing considerations are sufficient to enable the Court to conclude that in the present case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "131. There has accordingly been a violation of Article 6 § 1 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "132. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage and costs and expenses", "133. As regards the violation of Article 6 § 1 of the Convention, the applicant claimed EUR 15,000 without making separate claims in respect of pecuniary damage, non-pecuniary damage and costs and expenses.", "134. The Government contested the applicant’s claim by pointing out that he had failed to specify whether and to what extent it concerned pecuniary damage, non-pecuniary damage and/or costs and expenses. The Government accordingly asked the Court not to award any sum by way of just satisfaction.", "135. The Court reiterates that an applicant who wishes to obtain an award of just satisfaction must make a specific claim to that effect (Rule 60 § 1 of the Rules of Court); however, a claim in respect of non-pecuniary damage does not need to be quantified or substantiated. This, inter alia, means that an applicant should make separate claims in respect of pecuniary damage, non ‑ pecuniary damage and costs and expenses.", "136. The Court considers that the applicant must have sustained non ‑ pecuniary damage as a result of the violation of his right to a hearing within a reasonable time. Ruling on an equitable basis, the Court awards him EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.", "137. On the other hand, in so far as his claim for just satisfaction concerns pecuniary damage and costs and expenses, the Court rejects it, because the applicant failed to comply with the requirements of Rule 61 of the Rules of Court.", "Default interest", "138. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”).", "6. The relevant facts of the case, as submitted by the parties, may be summarised as follows.", "A. The criminal case and other related proceedings", "7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action ( privatna krivična tužba ) filed on 10 March 2003, found the applicant guilty of criminal defamation ( kleveta ) and sentenced her to six months ’ imprisonment, suspended for a period of two years ( uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically.", "8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter ’ s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant ’ s and article ’ s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge.", "9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court ’ s decision on 19 July 2006.", "10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings.", "11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant ’ s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court ’ s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 1 5 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor ’ s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004.", "12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court ’ s judgment of 25 March 2011. The applicant was served with the Appeals Court ’ s decision on 21 December 2011.", "13. On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending.", "B. The civil suit and other related proceedings", "14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article.", "15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all.", "16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB ’ s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below).", "17. On 16 April 2009 the District Court in Novi Sad rejected the applicant ’ s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court ’ s decision on 30 April 2009.", "18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded.", "19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316 ‑ B; and Filipović v. Serbia, no. 27935/05, 20 November 2007 ). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below.", "20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below).", "21. On 9 December 2009 the Municipal Court rejected the applicant ’ s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal.", "22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings.", "23. On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant ’ s complaint concerning her medical situation.", "24. The applicant was apparently informed of this decision in the Constitutional Court ’ s letter of 21 December 2011, and received it by 23 April 2012 at the latest.", "C. The enforcement proceedings", "25. On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007.", "26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to the creditor ’ s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below).", "27. The said deductions to the applicant ’ s monthly income began as of 8 August 2009.", "28. In May 2012 the applicant ’ s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live.", "29. By 30 June 201 3 the applicant had paid a total of RSD 496, 471. 1 0, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years ( see paragraphs 44-50 below).", "D. The applicant ’ s medical condition", "30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery.", "31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it.", "E. Other relevant facts", "32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper ’ s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,12 0 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal.", "33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities.", "I. The Constitutional Court ’ s decision IUz-82/09 of 12 July 2012 published in OG RS no. 73/12", "47. Based on this decision and as of 27 July 2012, the Constitutional Court repealed the method of calculating interest as set out in Article 3 § 1 of the Statutory Interest Act 2001.", "J. The Statutory Interest Act 2012 ( Zakon o zateznoj kamati; published in OG RS no. 119/12)", "48. Article 2 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement.", "49. Article 3 states that such interest shall be calculated annually based on the Serbian National Bank ’ s reference interest rate and increased by eight percentage points.", "50. This act entered into force on 25 December 2012 and thereby repealed the Statutory Interest Act 2001." ]

[ "II. RELEVANT DOMESTIC LAW, COMMENTARY AND PRACTICE", "A. The Criminal Code of the Republic of Serbia 1977 ( Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02)", "34. The relevant provisions of this Code read as follows:", "Article 92", "“Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months.", "If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ...", "If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence...", "Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.”", "Article 96 §§ 1 and 2", "“... [No one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage.", "In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ..., if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...”", "B. The Criminal Code of the Federal Republic of Yugoslavia ( Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 4 6/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01 )", "35. The relevant provisions of this Code read as follows:", "Article 4", "“ It is the criminal legislation which was in force at the time of commission of the crime in question that shall be applied to the perpetrator thereof.", "If the criminal legislation has been amended once or on several occasions thereafter, the legislation which is more favourable for the perpetrator shall be applied.”", "Article 51", "“... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment ( suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.”", "Article 52 § 1", "“In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...”", "Article 53 § 4", "“In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.”", "Article 54 §§ 1 and 2", "“The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years.", "If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...”", "Article 93 § 2", "“A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.”", "Article 94 § 3", "“When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ”", "C. Subsequent criminal legislation", "36. In 2005 the Serbian Parliament enacted a new Criminal Code ( Krivični zakonik ). It was published in OG RS no. 85/05 and entered into force on 1 January 2006, thus repealing the above - mentioned criminal legislation. The new Code provided for the offence of criminal defamation, in Article 171, but envisaged that only a fine, not a prison term, could be imposed on the perpetrators thereof.", "37. The Criminal Code 2005 was amended on four occasions thereafter. Ultimately, the amendments adopted in 2012, which were published in OG RS no. 121/12 and entered into force on 1 January 2013, repealed Article 171 of the Criminal Code 2005. Criminal defamation thereby ceased to be a criminal offence in the Serbian legal system.", "D. The Obligations Act ( Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93)", "38. Under Articles 199 and 200, inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.", "39. Article 200 § 2 provides, inter alia, that when deciding on the exact amount of compensation to be awarded, the courts must take into account all of the relevant circumstances. There is also long-standing domestic case-law to the effect that the courts must be vigilant not to give in to any lucrative animus when it comes to compensation claims filed in respect of alleged breaches of one ’ s reputation (see, for example, the decision of the Supreme Court of Yugoslavia, Rev. 277/66).", "E. The Civil Procedure Act 2004 ( Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09 )", "40. Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. An acquittal, however, does not rule out a civil suit for damages since the conditions for criminal and civil liability are different (see Komentar Zakona o parničnom postupku, Mr Svetislav R. Vuković, Poslovni biro, Belgrade, 2004, p. 18).", "F. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04)", "41. Article 156 § 1 provides, inter alia, that, as part of the enforcement procedure, up to two thirds of a debtor ’ s pension may be withheld.", "G. The Enforcement Procedure Act 2011 ( Zakon o izvršenju i obezbeđjenju, published in OG RS nos. 31/11 and 99/11)", "42. Article 148 § 1 of this Act, in its relevant part, corresponds to the substance of Article 156 § 1 of the Enforcement Procedure Act 2004.", "43. According to Article 363, the Enforcement Procedure Act 2011 entered into force on 18 September 2011, while pursuant to Article 358 § 1 all pending enforcement proceedings shall be completed on the basis of this new Act.", "H. The Statutory Interest Act 2001 ( Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11)", "44. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement.", "45. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly.", "46. Article 3 § 1 sets out the exact method of calculating the interest in question.", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "51. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "52. The applicant complained, under Article 10 of the Convention, about the breach of her freedom of expression suffered due to her criminal conviction, the subsequent civil defamation judgment rendered against her, and, also, the way in which the latter was enforced domestically, causing her, as it did, extreme financial hardship, numerous health problems and even endangering her very life. The applicant additionally referred to Articles 3 and 8 of the Convention in this context, as well as to Article 1 of Protocol No. 1.", "53. It being the “master of the characterisation” to be given in law to the facts of any case before it (see, for example, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint primarily falls be examined under Article 10 of the Convention, which, insofar as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...”", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”", "A. Admissibility", "1. As regards the criminal proceedings", "54. The Government maintained, inter alia, that since the proceedings before the Constitutional Court were still pending in this respect (see paragraphs 13 above), the applicant ’ s complaint regarding the criminal case brought against her had to be rejected on the grounds of non-exhaustion.", "55. The applicant recalled that she had lodged her application (no. 4678/07) with the Court on 29 December 2006, at which time the constitutional appeal had still not been considered effective.", "56. The Court recalls that it has consistently held that a constitutional appeal should, in principle, be deemed effective within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; see also Rakić and Others v. Serbia, no. 47460/07 and others, § 39, 5 October 2010, and Hajnal v. Serbia, no. 36937/06, §§ 122 and 123, 19 June 2012). It is understood, however, that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see, for example, Allan v. United Kingdom (dec.), no. 48539/99, 28 August 2001; and Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002).", "57. In view of the above, the Court notes that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court accepted the applicant ’ s motion for their reopening (see paragraph 11 above). The subsequent criminal proceedings were concluded by 2 9 November 2011, hence post 7 August 2008, and the case before the Constitutional Court has been pending since 19 January 2012 (see paragraphs 12 and 13 above). In these circumstances, the applicant ’ s remaining complaint relating to the criminal proceedings following their reopening is premature and must, as such, be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of non-exhaustion.", "2. As regards the civil and enforcement proceedings", "58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits (as regards the civil and the enforcement proceedings )", "1. The parties ’ submissions", "59. The Government admitted that the applicant ’ s freedom of expression had been restricted. This restriction, however, had been in accordance with the applicable domestic law and had pursued the legitimate aim of protecting the reputation of others. The competent civil courts had also properly assessed the facts and adequately applied the relevant domestic legislation. The applicant ’ s allegation to the effect that her lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case, had been a statement of fact in support of which no credible evidence had ever been offered. This statement had likewise not been given in any constructive social context, but merely as an expression of the applicant ’ s personal dissatisfaction. Further, Mr NB, being a practising lawyer, could not have remained passive in the face of such serious allegations undermining his very livelihood. Finally, the Government argued that neither the sum which had been awarded to Mr NB by the civil courts, consistent with damages awarded in other similar cases, nor the manner of its subsequent enforcement could be deemed disproportionate. While, admittedly, the applicant ’ s pension had been low this could not have absolved her from paying for the profound damage caused to Mr NB. In any event, approximately one third of the total principal sum due to be paid by the applicant consisted of the costs incurred by Mr NB in the course of the civil and enforcement proceedings.", "60. The applicant reaffirmed her complaint. She added that the newspaper article was the journalist ’ s responsibility and that she had provided Ms SN with the relevant information but had never seen the piece before its publication. In any event, the fact remained that Mr NB had failed to adequately represent the applicant throughout the proceedings in question. The civil judgments rendered against the applicant amounted therefore to, at best, a disproportionate interference with her freedom of expression, particularly bearing in mind the pension-related deductions imposed in the course of the enforcement proceedings and considering her dire financial and medical situation.", "2. The Court ’ s assessment", "61. The freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)). Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204 ).", "62. The Court has repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999 ‑ III). However, account must be taken of the distinction between factual statements on the one hand and value judgments on the other, since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof (see, for example, Lingens v. Austria, judgment of 8 July 1986, § 46, Series A no. 103; and McVicar v. the United Kingdom, no. 46311/99, § 83, ECHR 2002 ‑ III).", "63. The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts ’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2 (see Filipović, cited above, § 55). The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky, cited above, § 49; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [ had been ] ... very substantial when compared to the modest incomes and resources of the ... applicants ... ” and, as such, in breach of the Convention).", "64. Turning to the present case, the Court notes that both the final civil court judgment rendered against the applicant and the subsequent enforcement order undoubtedly constituted an interference with the applicant ’ s right to freedom of expression. Since they were based on the Obligations Act and the applicable enforcement procedure legislation, however, they were also clearly “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 38 and 41-43 above). Lastly, the judgment in question, as well as the enforcement order, were adopted in pursuit of a legitimate aim, namely “for the protection of the reputation” of another. What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society”.", "65. In this respect the Court notes that the damages plus costs awarded against the applicant amounted to approximately EUR 4,900 and were, as such, equal to a total of more than sixty of the applicant ’ s monthly pensions calculated on the basis of the available information as of December 2006 (see paragraphs 15 and 5 above, in that order; see also, mutatis mutandis, Koprivica v. Montenegro, no. 41158/09, § § 73-75, 22 November 2011 ). This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alios, Dnevnik and the Autonomous Province of Vojvodina, as two certainly more financially viable legal entities (see paragraph 32 above).", "66. Furthermore, while it is true that the criminal complaint filed by the police against Mr NB had been rejected by the Novi Sad Municipal Public Prosecutor ’ s Office, and that the applicant had been informed of this rejection on the grounds of prescription by 5 July 2002 (see paragraph 11 above), it cannot be said that her statement in respect of her former counsel had been merely a gratuitous personal attack. After all, the police had clearly seen some merit in these allegations and the applicant ’ s subsidiary prosecution was not rejected by the courts until 30 September 2004 ( ibid .), well after the publication of the impugned article on 12 December 2002 (see, mutatis mutandis, Koprivica, cited above, § 67, in fine ). Moreover, the Government ’ s proposition that a discussion of a practising lawyer ’ s professional conduct is clearly a matter of no public interest is in itself a dubious one, particularly bearing in mind the role of lawyers in the proper administration of justice.", "67. Finally but most strikingly, on 14 July 2009 the Novi Sad Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to Mr NB ’ s bank account each month, until the sums awarded to him have been paid in full (see paragraph 26 above), all this notwithstanding that Article 156 § 1 of the Enforcement Procedure Act 2004 had provided that up to two thirds of a debtor ’ s pension might be withheld, thus clearly leaving room for a more nuanced approach (see paragraph 41 above). The said deductions began as of 8 August 2009, and by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 (see paragraphs 27 and 29 above). Nevertheless given the accrued and future interest, she will have to continue with the payments for approximately another two years (see paragraph 29 above). In May 2012 the applicant ’ s monthly pension was some EUR 170. After deductions, she was hence left with approximately EUR 60 on which to live and buy her monthly medication (see paragraph 28 above). Since the latter would cost her approximately EUR 44, she maintained, and the Government never contested this assertion, that she can no longer afford to buy it (see paragraph 31 above). This is in the Court ’ s opinion a particularly precarious situation for an elderly person suffering from a number of serious diseases (see paragraph 30 above).", "68. In view of the above, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention.", "69. Having regard to this finding, the Court further considers that it is also not necessary to examine separately the admissibility or the merits of the applicant ’ s essentially identical complaints made under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1.", "III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION", "70. Under Article 6 § 1 of the Convention, the applicant complained about the fairness and the length of the criminal proceedings prior to and after their reopening, the fairness and the length of the civil defamation proceedings, and the length of the proceedings before the Constitutional Court instituted on 29 May 2009.", "71. Article 6 § 1, in so far as relevant, reads as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law ... ”", "72. The Government contested the admissibility, including on the grounds of non-exhaustion, and the merits of the above-alleged violations.", "A. The Court ’ s assessment as regards the criminal proceedings (i.e. the complaints made in app. no. 4678/07 lodged on 29 December 2006)", "73. As already noted above, the Court is of the opinion that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court had ordered their reopening (see paragraphs 57 and 11 above, in that order). The applicant ’ s complaints as regards their fairness are therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "74. Concerning the length of the criminal proceedings prior to their reopening, the Court notes that the Convention had entered into force in respect of Serbia on 3 March 2004 and that by 19 July 2006 these proceedings had been terminated (see paragraph 9 above; see also Eckle v. Germany, 15 July 1982, § 84, Series A no. 51). The case in question had therefore lasted for a period of approximately two years and four months within the Court ’ s competence rarione temporis, during which time the charges brought against the applicant had been examined at two instances. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "75. Turning, lastly, to the issue of fairness and length of the criminal proceedings following their reopening, and for the reasons already explained at paragraphs 56 and 57 above, the Court considers that this part of the application is premature (see paragraph 13 above). It must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "B. The Court ’ s assessment as regards the civil and constitutional proceedings (i.e. the complaints made in app. no. 50591/12 lodged on 28 May 2012)", "76. The Court notes that applicant has never specifically complained before the Constitutional Court about the length of the civil defamation suit (see paragraph 19 above). This complaint must therefore, bearing particularly in mind the date of its introduction, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies ( see Vinčić, cited above, § 51; see also paragraph 56 above ).", "77. Concerning the length of the proceedings before the Constitutional Court, it is recalled that the reasonableness of these proceedings must be assessed in the light of the specific circumstances of the case, regard being had in particular to its complexity, the parties ’ conduct, and the importance of the issues at stake for the applicant (see, for example, Šikić v. Croatia, no. 9143/08, § 35, 15 July 2010 ). It is further understood that its role of guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). Turning to the matter at hand, the Court notes that the impugned proceedings had been instituted on 29 May 2009 (see paragraph 19 above). Some two and a half years later, on 21 December 2011, the applicant was informed of the adoption of the decision in her case, although the decision itself would seem to have been served by 23 April 20 12 (see paragraph 24 above). Finally, the applicant ’ s constitutional complaint was of some complexity, and the applicant herself had repeatedly supplemented the original constitutional appeal with additional submissions (see paragraphs 19, 20 and 22 above). In such circumstances, the underlying civil defamation proceeding having themselves lasted for approximately two years and four months (see paragraphs 14-17 above) and despite the applicant ’ s advanced age and the seriousness of the issues at stake for her, the Court cannot but reject this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast to, for example, Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court ’ s competence ratione temporis respectively).", "IV. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION", "78. The applicant noted that her former lawyer, who had represented her before the Court prior to Mr Dodig, had twice failed to receive the Court ’ s correspondence addressed to his office. The applicant maintained that the respondent State had every reason to engage in this interference, hoping that the Court would conclude that she had lost interest in her Strasbourg application.", "79. The Government made no comment in this regard.", "80. Article 34 of the Convention provides as follows:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "81. According to the Court ’ s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV).", "82. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).", "83. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances ( ibid .).", "84. Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant ’ s exercise of her right of individual petition, it being noted that the Court cannot speculate as to who may have interfered with the correspondence addressed to the applicant ’ s former counsel and in which context (see, mutatis mutandis, Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011).", "85. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "86. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "87. The applicant claimed EUR 77 ,000 and EUR 7,000 in respect of pecuniary and non-pecuniary damage, respectively.", "88. The Government contested these claims.", "89. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6 ,000 in respect of the non- pecuniary damage suffered as a consequence of the violation of her rights guaranteed under Article 10 of the Convention.", "90. As regards the pecuniary damage, the Court notes that in May 2012 the applicant ’ s monthly pension was approximately EUR 170. After deductions, the applicant was left with some EUR 60 on which to live. Further, by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 through the enforcement proceedings. However, given the accrued and future interest, she will have to continue with the payments for approximately another two years, and pay an additional EUR 2,000. In these circumstances, having already found the said interference to be disproportionate within the meaning of Article 10 of the Convention and without speculating on the exact amount of damages and costs, plus interest, which might have been adequate, the Court considers it reasonable to award the applicant the additional sum of EUR 5,500 for the pecuniary damage suffered.", "B. Costs and expenses", "91. The applicants also claimed a total of EUR 2,736 for the costs and expenses incurred domestically, as well as those incurred before the Court.", "92. The Government contested this claim.", "93. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,200 covering costs under all heads.", "C. Default interest", "94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”).", "6. The relevant facts of the case, as submitted by the parties, may be summarised as follows.", "A. The criminal case and other related proceedings", "7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action ( privatna krivična tužba ) filed on 10 March 2003, found the applicant guilty of criminal defamation ( kleveta ) and sentenced her to six months ’ imprisonment, suspended for a period of two years ( uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically.", "8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter ’ s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant ’ s and article ’ s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge.", "9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court ’ s decision on 19 July 2006.", "10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings.", "11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant ’ s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court ’ s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 1 5 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor ’ s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004.", "12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court ’ s judgment of 25 March 2011. The applicant was served with the Appeals Court ’ s decision on 21 December 2011.", "13. On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending.", "B. The civil suit and other related proceedings", "14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article.", "15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all.", "16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB ’ s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below).", "17. On 16 April 2009 the District Court in Novi Sad rejected the applicant ’ s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court ’ s decision on 30 April 2009.", "18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded.", "19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316 ‑ B; and Filipović v. Serbia, no. 27935/05, 20 November 2007 ). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below.", "20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below).", "21. On 9 December 2009 the Municipal Court rejected the applicant ’ s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal.", "22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings.", "23. On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant ’ s complaint concerning her medical situation.", "24. The applicant was apparently informed of this decision in the Constitutional Court ’ s letter of 21 December 2011, and received it by 23 April 2012 at the latest.", "C. The enforcement proceedings", "25. On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007.", "26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to the creditor ’ s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below).", "27. The said deductions to the applicant ’ s monthly income began as of 8 August 2009.", "28. In May 2012 the applicant ’ s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live.", "29. By 30 June 201 3 the applicant had paid a total of RSD 496, 471. 1 0, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years ( see paragraphs 44-50 below).", "D. The applicant ’ s medical condition", "30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery.", "31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it.", "E. Other relevant facts", "32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper ’ s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,12 0 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal.", "33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities.", "I. The Constitutional Court ’ s decision IUz-82/09 of 12 July 2012 published in OG RS no. 73/12", "47. Based on this decision and as of 27 July 2012, the Constitutional Court repealed the method of calculating interest as set out in Article 3 § 1 of the Statutory Interest Act 2001.", "J. The Statutory Interest Act 2012 ( Zakon o zateznoj kamati; published in OG RS no. 119/12)", "48. Article 2 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement.", "49. Article 3 states that such interest shall be calculated annually based on the Serbian National Bank ’ s reference interest rate and increased by eight percentage points.", "50. This act entered into force on 25 December 2012 and thereby repealed the Statutory Interest Act 2001." ]

[ "II. RELEVANT DOMESTIC LAW, COMMENTARY AND PRACTICE", "A. The Criminal Code of the Republic of Serbia 1977 ( Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02)", "34. The relevant provisions of this Code read as follows:", "Article 92", "“Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months.", "If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ...", "If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence...", "Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.”", "Article 96 §§ 1 and 2", "“... [No one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage.", "In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ..., if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...”", "B. The Criminal Code of the Federal Republic of Yugoslavia ( Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 4 6/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01 )", "35. The relevant provisions of this Code read as follows:", "Article 4", "“ It is the criminal legislation which was in force at the time of commission of the crime in question that shall be applied to the perpetrator thereof.", "If the criminal legislation has been amended once or on several occasions thereafter, the legislation which is more favourable for the perpetrator shall be applied.”", "Article 51", "“... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment ( suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.”", "Article 52 § 1", "“In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...”", "Article 53 § 4", "“In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.”", "Article 54 §§ 1 and 2", "“The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years.", "If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...”", "Article 93 § 2", "“A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.”", "Article 94 § 3", "“When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ”", "C. Subsequent criminal legislation", "36. In 2005 the Serbian Parliament enacted a new Criminal Code ( Krivični zakonik ). It was published in OG RS no. 85/05 and entered into force on 1 January 2006, thus repealing the above - mentioned criminal legislation. The new Code provided for the offence of criminal defamation, in Article 171, but envisaged that only a fine, not a prison term, could be imposed on the perpetrators thereof.", "37. The Criminal Code 2005 was amended on four occasions thereafter. Ultimately, the amendments adopted in 2012, which were published in OG RS no. 121/12 and entered into force on 1 January 2013, repealed Article 171 of the Criminal Code 2005. Criminal defamation thereby ceased to be a criminal offence in the Serbian legal system.", "D. The Obligations Act ( Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93)", "38. Under Articles 199 and 200, inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction.", "39. Article 200 § 2 provides, inter alia, that when deciding on the exact amount of compensation to be awarded, the courts must take into account all of the relevant circumstances. There is also long-standing domestic case-law to the effect that the courts must be vigilant not to give in to any lucrative animus when it comes to compensation claims filed in respect of alleged breaches of one ’ s reputation (see, for example, the decision of the Supreme Court of Yugoslavia, Rev. 277/66).", "E. The Civil Procedure Act 2004 ( Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09 )", "40. Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. An acquittal, however, does not rule out a civil suit for damages since the conditions for criminal and civil liability are different (see Komentar Zakona o parničnom postupku, Mr Svetislav R. Vuković, Poslovni biro, Belgrade, 2004, p. 18).", "F. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04)", "41. Article 156 § 1 provides, inter alia, that, as part of the enforcement procedure, up to two thirds of a debtor ’ s pension may be withheld.", "G. The Enforcement Procedure Act 2011 ( Zakon o izvršenju i obezbeđjenju, published in OG RS nos. 31/11 and 99/11)", "42. Article 148 § 1 of this Act, in its relevant part, corresponds to the substance of Article 156 § 1 of the Enforcement Procedure Act 2004.", "43. According to Article 363, the Enforcement Procedure Act 2011 entered into force on 18 September 2011, while pursuant to Article 358 § 1 all pending enforcement proceedings shall be completed on the basis of this new Act.", "H. The Statutory Interest Act 2001 ( Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11)", "44. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement.", "45. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly.", "46. Article 3 § 1 sets out the exact method of calculating the interest in question.", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "51. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "52. The applicant complained, under Article 10 of the Convention, about the breach of her freedom of expression suffered due to her criminal conviction, the subsequent civil defamation judgment rendered against her, and, also, the way in which the latter was enforced domestically, causing her, as it did, extreme financial hardship, numerous health problems and even endangering her very life. The applicant additionally referred to Articles 3 and 8 of the Convention in this context, as well as to Article 1 of Protocol No. 1.", "53. It being the “master of the characterisation” to be given in law to the facts of any case before it (see, for example, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint primarily falls be examined under Article 10 of the Convention, which, insofar as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...”", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”", "A. Admissibility", "1. As regards the criminal proceedings", "54. The Government maintained, inter alia, that since the proceedings before the Constitutional Court were still pending in this respect (see paragraphs 13 above), the applicant ’ s complaint regarding the criminal case brought against her had to be rejected on the grounds of non-exhaustion.", "55. The applicant recalled that she had lodged her application (no. 4678/07) with the Court on 29 December 2006, at which time the constitutional appeal had still not been considered effective.", "56. The Court recalls that it has consistently held that a constitutional appeal should, in principle, be deemed effective within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; see also Rakić and Others v. Serbia, no. 47460/07 and others, § 39, 5 October 2010, and Hajnal v. Serbia, no. 36937/06, §§ 122 and 123, 19 June 2012). It is understood, however, that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see, for example, Allan v. United Kingdom (dec.), no. 48539/99, 28 August 2001; and Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002).", "57. In view of the above, the Court notes that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court accepted the applicant ’ s motion for their reopening (see paragraph 11 above). The subsequent criminal proceedings were concluded by 2 9 November 2011, hence post 7 August 2008, and the case before the Constitutional Court has been pending since 19 January 2012 (see paragraphs 12 and 13 above). In these circumstances, the applicant ’ s remaining complaint relating to the criminal proceedings following their reopening is premature and must, as such, be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of non-exhaustion.", "2. As regards the civil and enforcement proceedings", "58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits (as regards the civil and the enforcement proceedings )", "1. The parties ’ submissions", "59. The Government admitted that the applicant ’ s freedom of expression had been restricted. This restriction, however, had been in accordance with the applicable domestic law and had pursued the legitimate aim of protecting the reputation of others. The competent civil courts had also properly assessed the facts and adequately applied the relevant domestic legislation. The applicant ’ s allegation to the effect that her lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case, had been a statement of fact in support of which no credible evidence had ever been offered. This statement had likewise not been given in any constructive social context, but merely as an expression of the applicant ’ s personal dissatisfaction. Further, Mr NB, being a practising lawyer, could not have remained passive in the face of such serious allegations undermining his very livelihood. Finally, the Government argued that neither the sum which had been awarded to Mr NB by the civil courts, consistent with damages awarded in other similar cases, nor the manner of its subsequent enforcement could be deemed disproportionate. While, admittedly, the applicant ’ s pension had been low this could not have absolved her from paying for the profound damage caused to Mr NB. In any event, approximately one third of the total principal sum due to be paid by the applicant consisted of the costs incurred by Mr NB in the course of the civil and enforcement proceedings.", "60. The applicant reaffirmed her complaint. She added that the newspaper article was the journalist ’ s responsibility and that she had provided Ms SN with the relevant information but had never seen the piece before its publication. In any event, the fact remained that Mr NB had failed to adequately represent the applicant throughout the proceedings in question. The civil judgments rendered against the applicant amounted therefore to, at best, a disproportionate interference with her freedom of expression, particularly bearing in mind the pension-related deductions imposed in the course of the enforcement proceedings and considering her dire financial and medical situation.", "2. The Court ’ s assessment", "61. The freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)). Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204 ).", "62. The Court has repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999 ‑ III). However, account must be taken of the distinction between factual statements on the one hand and value judgments on the other, since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof (see, for example, Lingens v. Austria, judgment of 8 July 1986, § 46, Series A no. 103; and McVicar v. the United Kingdom, no. 46311/99, § 83, ECHR 2002 ‑ III).", "63. The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts ’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2 (see Filipović, cited above, § 55). The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky, cited above, § 49; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [ had been ] ... very substantial when compared to the modest incomes and resources of the ... applicants ... ” and, as such, in breach of the Convention).", "64. Turning to the present case, the Court notes that both the final civil court judgment rendered against the applicant and the subsequent enforcement order undoubtedly constituted an interference with the applicant ’ s right to freedom of expression. Since they were based on the Obligations Act and the applicable enforcement procedure legislation, however, they were also clearly “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 38 and 41-43 above). Lastly, the judgment in question, as well as the enforcement order, were adopted in pursuit of a legitimate aim, namely “for the protection of the reputation” of another. What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society”.", "65. In this respect the Court notes that the damages plus costs awarded against the applicant amounted to approximately EUR 4,900 and were, as such, equal to a total of more than sixty of the applicant ’ s monthly pensions calculated on the basis of the available information as of December 2006 (see paragraphs 15 and 5 above, in that order; see also, mutatis mutandis, Koprivica v. Montenegro, no. 41158/09, § § 73-75, 22 November 2011 ). This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alios, Dnevnik and the Autonomous Province of Vojvodina, as two certainly more financially viable legal entities (see paragraph 32 above).", "66. Furthermore, while it is true that the criminal complaint filed by the police against Mr NB had been rejected by the Novi Sad Municipal Public Prosecutor ’ s Office, and that the applicant had been informed of this rejection on the grounds of prescription by 5 July 2002 (see paragraph 11 above), it cannot be said that her statement in respect of her former counsel had been merely a gratuitous personal attack. After all, the police had clearly seen some merit in these allegations and the applicant ’ s subsidiary prosecution was not rejected by the courts until 30 September 2004 ( ibid .), well after the publication of the impugned article on 12 December 2002 (see, mutatis mutandis, Koprivica, cited above, § 67, in fine ). Moreover, the Government ’ s proposition that a discussion of a practising lawyer ’ s professional conduct is clearly a matter of no public interest is in itself a dubious one, particularly bearing in mind the role of lawyers in the proper administration of justice.", "67. Finally but most strikingly, on 14 July 2009 the Novi Sad Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to Mr NB ’ s bank account each month, until the sums awarded to him have been paid in full (see paragraph 26 above), all this notwithstanding that Article 156 § 1 of the Enforcement Procedure Act 2004 had provided that up to two thirds of a debtor ’ s pension might be withheld, thus clearly leaving room for a more nuanced approach (see paragraph 41 above). The said deductions began as of 8 August 2009, and by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 (see paragraphs 27 and 29 above). Nevertheless given the accrued and future interest, she will have to continue with the payments for approximately another two years (see paragraph 29 above). In May 2012 the applicant ’ s monthly pension was some EUR 170. After deductions, she was hence left with approximately EUR 60 on which to live and buy her monthly medication (see paragraph 28 above). Since the latter would cost her approximately EUR 44, she maintained, and the Government never contested this assertion, that she can no longer afford to buy it (see paragraph 31 above). This is in the Court ’ s opinion a particularly precarious situation for an elderly person suffering from a number of serious diseases (see paragraph 30 above).", "68. In view of the above, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention.", "69. Having regard to this finding, the Court further considers that it is also not necessary to examine separately the admissibility or the merits of the applicant ’ s essentially identical complaints made under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1.", "III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION", "70. Under Article 6 § 1 of the Convention, the applicant complained about the fairness and the length of the criminal proceedings prior to and after their reopening, the fairness and the length of the civil defamation proceedings, and the length of the proceedings before the Constitutional Court instituted on 29 May 2009.", "71. Article 6 § 1, in so far as relevant, reads as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law ... ”", "72. The Government contested the admissibility, including on the grounds of non-exhaustion, and the merits of the above-alleged violations.", "A. The Court ’ s assessment as regards the criminal proceedings (i.e. the complaints made in app. no. 4678/07 lodged on 29 December 2006)", "73. As already noted above, the Court is of the opinion that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court had ordered their reopening (see paragraphs 57 and 11 above, in that order). The applicant ’ s complaints as regards their fairness are therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "74. Concerning the length of the criminal proceedings prior to their reopening, the Court notes that the Convention had entered into force in respect of Serbia on 3 March 2004 and that by 19 July 2006 these proceedings had been terminated (see paragraph 9 above; see also Eckle v. Germany, 15 July 1982, § 84, Series A no. 51). The case in question had therefore lasted for a period of approximately two years and four months within the Court ’ s competence rarione temporis, during which time the charges brought against the applicant had been examined at two instances. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "75. Turning, lastly, to the issue of fairness and length of the criminal proceedings following their reopening, and for the reasons already explained at paragraphs 56 and 57 above, the Court considers that this part of the application is premature (see paragraph 13 above). It must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.", "B. The Court ’ s assessment as regards the civil and constitutional proceedings (i.e. the complaints made in app. no. 50591/12 lodged on 28 May 2012)", "76. The Court notes that applicant has never specifically complained before the Constitutional Court about the length of the civil defamation suit (see paragraph 19 above). This complaint must therefore, bearing particularly in mind the date of its introduction, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies ( see Vinčić, cited above, § 51; see also paragraph 56 above ).", "77. Concerning the length of the proceedings before the Constitutional Court, it is recalled that the reasonableness of these proceedings must be assessed in the light of the specific circumstances of the case, regard being had in particular to its complexity, the parties ’ conduct, and the importance of the issues at stake for the applicant (see, for example, Šikić v. Croatia, no. 9143/08, § 35, 15 July 2010 ). It is further understood that its role of guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). Turning to the matter at hand, the Court notes that the impugned proceedings had been instituted on 29 May 2009 (see paragraph 19 above). Some two and a half years later, on 21 December 2011, the applicant was informed of the adoption of the decision in her case, although the decision itself would seem to have been served by 23 April 20 12 (see paragraph 24 above). Finally, the applicant ’ s constitutional complaint was of some complexity, and the applicant herself had repeatedly supplemented the original constitutional appeal with additional submissions (see paragraphs 19, 20 and 22 above). In such circumstances, the underlying civil defamation proceeding having themselves lasted for approximately two years and four months (see paragraphs 14-17 above) and despite the applicant ’ s advanced age and the seriousness of the issues at stake for her, the Court cannot but reject this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast to, for example, Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court ’ s competence ratione temporis respectively).", "IV. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION", "78. The applicant noted that her former lawyer, who had represented her before the Court prior to Mr Dodig, had twice failed to receive the Court ’ s correspondence addressed to his office. The applicant maintained that the respondent State had every reason to engage in this interference, hoping that the Court would conclude that she had lost interest in her Strasbourg application.", "79. The Government made no comment in this regard.", "80. Article 34 of the Convention provides as follows:", "“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”", "81. According to the Court ’ s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV).", "82. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002).", "83. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or contacts designed to dissuade or discourage applicants from using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances ( ibid .).", "84. Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant ’ s exercise of her right of individual petition, it being noted that the Court cannot speculate as to who may have interfered with the correspondence addressed to the applicant ’ s former counsel and in which context (see, mutatis mutandis, Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011).", "85. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "86. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "87. The applicant claimed EUR 77 ,000 and EUR 7,000 in respect of pecuniary and non-pecuniary damage, respectively.", "88. The Government contested these claims.", "89. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6 ,000 in respect of the non- pecuniary damage suffered as a consequence of the violation of her rights guaranteed under Article 10 of the Convention.", "90. As regards the pecuniary damage, the Court notes that in May 2012 the applicant ’ s monthly pension was approximately EUR 170. After deductions, the applicant was left with some EUR 60 on which to live. Further, by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 through the enforcement proceedings. However, given the accrued and future interest, she will have to continue with the payments for approximately another two years, and pay an additional EUR 2,000. In these circumstances, having already found the said interference to be disproportionate within the meaning of Article 10 of the Convention and without speculating on the exact amount of damages and costs, plus interest, which might have been adequate, the Court considers it reasonable to award the applicant the additional sum of EUR 5,500 for the pecuniary damage suffered.", "B. Costs and expenses", "91. The applicants also claimed a total of EUR 2,736 for the costs and expenses incurred domestically, as well as those incurred before the Court.", "92. The Government contested this claim.", "93. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,200 covering costs under all heads.", "C. Default interest", "94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1930 and lives in Istanbul.", "6. The applicant is a professor of construction management at Istanbul Technical University. In his speech, delivered during the “First National Construction Conference”, which took place in 1997, the applicant analysed the progress of the work in his field of discipline. He also distributed a paper in which he criticised the way the examinations for assistant professors were being administered.", "7. On 17 September 1997, an assistant professor, N.C.A., brought a civil action for compensation against the applicant, before the Şişli Civil Court of First Instance. He claimed that certain remarks used by the applicant in the paper constituted an attack on his reputation, although his name was not mentioned. The statements in question were as follows:", "“The panel for the assistant professorship examination in the discipline of construction management was formed by academics of the construction faculty. This led to the election of very inadequate assistant professors. ( ... ) During this period, before a panel on which [the applicant] was the only professor of construction management, a candidate was notified that his one - page - long report and his examination were not satisfactory. Blaming [the applicant] for the unsatisfactory result, the same candidate filed an action for damages, alleging that he had been beaten by [the applicant]. Before the action for compensation was finalised, he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...”", "8. On 10 June 1999 the first instance court rejected N.C.A's claim, holding that these statements were merely a criticism of the academic system and the institutions. N.C.A appealed.", "9. On 13 September 1999 the Court of Cassation quashed the decision holding that the following sentence could be taken as an attack on the plaintiff's reputation:", "“ ... he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ...”", "10. It held that the above sentence implied that, if there had been a different panel, the plaintiff would have failed the examination.", "11. On 22 May 2000 the applicant's request for rectification of the latter decision was dismissed.", "12. On 7 November 2000 the Şişli Civil Court of First instance, after having considered the Court of Cassation's views on the case, confirmed its earlier decision. It held that the defendant, who was an academic, should be granted the flexibility enjoyed by members of the press or lawyers. The reasoning of the court was as follows :", "“ If these statements were uttered by a press member or a lawyer, it would have been regarded as freedom of the press or the rights of the defence. If we hold that these remarks made by an academic were against the law, then this would be a breach of his constitutional rights, such as freedom of expression, dissemination of ideas (article 26) and freedom of science and the arts (Article 27).”", "13. N.A.C. appealed once again. On 14 March 2001 the Joint Civil Chambers of the Court quashed the decision by 26 votes to 24, holding that the first instance court should have followed the opinion of the Court of Cassation.", "14. On 30 May 2001 the applicant's request for the rectification of the latter decision was dismissed.", "15. The case was resumed before the Şişli Civil Court of First Instance. The applicant informed the court that, at the beginning of the 1999-20 00 academic year, the Discipline Council of the Yıldız Technical University had dismissed N.A.C. from his post on account of his inadequate scientific competence and personal values. In view of this information, the applicant asserted that he had been right to criticise the system of promotion and thus asked the court to dismiss the plaintiff's request.", "16. On 12 December 2001 the first instance court followed the decision of the Joint Civil Chambers of the Court of Cassation, and awarded N.A.C. compensation in the sum of 1,000,000, 000 Turkish liras (TRL) for non- pecuniary damage. The court did not address the applicant's argument concerning the dismissal of the plaintiff from the university. Both parties appealed against this decision.", "17. On 10 June 2002 Court of Cassation upheld the decision of the first instance court.", "18. On 13 November 2002 the applicant's request for rectification of the decision of 10 June 2002 was rejected by the Court of Cassation.", "19. The applicant was ordered to pay TRL 3,455,215,000, the sum obtained by adding together the principal compensation, interest and court fees." ]

[ "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIAL", "20. Article 49 of the Code of Obligations provides as follows:", "“Any person who alleges that his personality rights have been illegally violated can claim compensation for non-pecuniary damage.", "The judge shall take into account the parties'socio-economic situation, their occupation and social status when determining the amount of compensation...”", "21. In its Recommendation 1762 (2006), the Parliamentary Assembly of the Council of Europe adopted the following declaration for the protection of academic freedom of expression:", "“ ...", "4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:", "4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction; ...", "4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation; ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "22. The applicant complained that his right to freedom of expression had been interfered with in breach of Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others .. .”", "23. The Government contested that argument.", "A. Admissibility", "24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "25. The applicant claimed that, as an academic, he had fulfilled his duty to inform scientific circles and the public at large about the weaknesses of the discipline in which he taught. In his statements, he had not mentioned the name of the plaintiff, but even if he had done so, this was not a valid reason to restrict his right to freedom of expression. In any event, the opinions expressed by him had had a factual basis given that the plaintiff had been dismissed from his post on account of inadequate scientific competence and personal values. The applicant concluded therefore that there was no pressing social need capable of justifying the interference in question and that it was not proportionate to the aim pursued.", "26. The Government submitted that the applicant had sought to create a polemic about an incident which had occurred between him and N. A. C. several years before and that his words had exceeded the limits of a scientific discussion, although they had been uttered in a scientific environment. When striking a balance between the conflicting interests, namely the applicant's right to freedom of expression against the plaintiff's right to reputation, the domestic courts had ruled in favour of the latter. The interference in question was proportionate to the aim pursued and should be considered to fall within the margin of appreciation of the national authorities.", "2. The Court's assessment", "27. The Court notes that it was not in dispute between the parties that the final judgment given in the defamation case constituted an “interference” with the applicant's right to freedom of expression, protected by Article 10 § 1 of the Convention. Nor was it contested that the interference was “prescribed by law” and “pursued a legitimate aim”, that of protecting the reputation or rights of others, for the purposes of Article 10 § 2. It thus remains to be determined whether the interference in question was “necessary in a democratic society”.", "( a) Relevant principles", "28 The Court reiterates that the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001 ‑ VIII ). In this context, the Court reiterates that paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation. In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech.", "29. One factor of particular importance for the Court's determination in the present case is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, for example, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; Oberschlick v. Austria (no. 1), 23 May 1991, § 63, Series A no. 204 ). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive if it has no factual basis to support it ( see Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001 ‑ II ).", "30. Finally, the amount of compensation awarded must “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the respondent in question (see Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 49, Series A no. 316 ‑ B; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005 ‑ II, where the Court held that the damages awarded “ although relatively moderate by contemporary standards ... [were ] ... very substantial when compared to the modest incomes and resources of the ... applicants ...” and, as such, in breach of the Convention).", "( b) Application of the above principles to the facts of the case", "31. The Court notes that the impugned statements were made by the applicant through distribution of a paper at a scientific conference. In this paper, the applicant criticised in essence the system of appointment and promotion of academics in the university. Relying on his personal experience, he maintained that the presence on promotion panels of persons who were not experts in the field of construction management led to the selection of academically inadequate persons for the posts of assistant professors. He asserted in that context that a candidate, who did not have adequate qualifications, had been promoted to an assistant professorship (see paragraph 7 above).", "32. In the Court's opinion, these assertions should be qualified as value judgments on an issue of public importance as they concerned the applicant's assessment of the appointment and promotion system in the universities. In this connection, the Court reiterates that the truthfulness of a value judgment is not susceptible of proof. The necessity of a link between a value judgment and its supporting facts may vary from case to case according to the specific circumstances (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII ). This being so, in the circumstances of the present case, the Court finds that the value judgment made by the applicant was based on his personal experience in promotion panels and information which was already known in academic circles. Accordingly, the applicant's statements were, at least in part, susceptible of proof (see, Boldea v. Romania, no. 19997/02, § 56, ECHR 2007 ‑ ... (extracts) ).", "33. However, the Turkish courts did not provide the applicant with an opportunity to substantiate his statements. Although, in the course of the proceedings against him, the applicant endeavoured to demonstrate that his statements were well-founded or that at least he voiced them in good faith since the plaintiff had later been dismissed from his post as a result of his inadequate scientific competence and personal values, the domestic courts did not address his arguments (see paragraphs 15 and 16 above). They rather concluded that the following statements, “ ... he managed to pass the assistant professorship examination before another panel, whose members were not from the construction management department, and without publishing a single article ... ” had constituted an attack on N.A.C.'s reputation, taking the view that the applicant had implied that N.A.C. would have failed the exam had he been examined by a different panel (see paragraphs 9, 10 and 13 above).", "34. The Court notes that the Court of Cassation attached greater importance to the reputation of an unnamed person than to the freedom of expression that should normally be enjoyed by an academic in a public debate. Nor did it explain why the reputation of the plaintiff, whose name was not even mentioned in the paper, outweighed the applicant's freedom of expression that was recognised by the first instance court as being his constitutional right (see paragraph 12 above).", "35. In this connection, the Court underlines the importance of academic freedom, which comprises the academics'freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction (see paragraph 21 above).", "36. In view of the above, the Court considers that the Court of Cassation did not convincingly establish that there was pressing social need for putting the protection of the personality rights of an unnamed individual above the applicant's right to freedom of expression and the general interest in promoting this freedom where issues of public interest are concerned. In particular, it does not appear from the domestic courts'decisions that the applicant's statement affected N. A. C.'s career or private life.", "37. Finally, although the applicant did not specify his monthly income at the relevant time, the Court considers that the damages he was ordered to pay to the plaintiff were very substantial (see paragraphs 16 and 19 above) when compared to the incomes and resources of academics in general.", "38. In conclusion, the Court finds that the reasons adduced by the domestic courts cannot be regarded as a sufficient and relevant justification for the interference with the applicant's right to freedom of expression. The national authorities therefore failed to strike a fair balance between the relevant interests.", "39. It thus follows that the interference complained of was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.", "40. There has therefore been a violation of Article 10 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "41. The applicant further complained of violations of Article 6 of the Convention and Article 1 of Protocol No. 1. In this connection, he alleged that he had been denied a fair hearing since the domestic court decisions were arbitrary and without reasoning. He also submitted that the compensation he had been ordered to pay to the plaintiff had amounted to a violation of his right to the peaceful enjoyment of his possessions.", "42. The Government contested these arguments.", "43. The Court notes that these complaints are linked to that examined above and must therefore likewise be declared admissible.", "44. Having regard to the facts of the case, the parties'submissions and its finding of a violation of Article 10, the Court considers that it has examined the main legal question raised in the present application. It concludes therefore that there is no need to make a separate ruling under this head (see, for example, Mehmet and Suna Yiğit v. Turkey, no. 52658/99, § 43, 17 July 2007, and K.Ö. v. Turkey, no. 71795/01, § 50, 11 December 2007).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "45. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "46. The applicant claimed 5,300 euros (EUR) in respect of pecuniary damage and EUR 10,000 for non-pecuniary damage. As regards the pecuniary damage, he explained that the principal compensation, interest and court fees had amounted to EUR 2,000 and that the interest on this amount since 2002 would come to EUR 3,300.", "47. The Government asserted that no award should be made under this head. They submitted, in the alternative, that should the Court decide to award damages, this should not lead to unjust enrichment.", "48. The Court notes that the applicant suffered pecuniary damage in that he had been ordered to pay the plaintiff TRL 3,455,215,000. Furthermore, as regards the non-pecuniary damage, the Court considers that the applicant may be taken to have suffered a certain amount of distress in the circumstances of the case. It therefore awards him a total sum of EUR 3,500 in respect of the damage under this head and dismisses the applicant's request for the payment of interest on that sum.", "B. Costs and expenses", "49. The applicant also claimed EUR 1,180 for the costs and expenses incurred before the domestic courts and EUR 8,050 for those incurred before the Court (lawyer's fees in the amount of EUR 8,000 and postage expenses in the amount of EUR 50 ).", "50. The Government submitted that the amounts claimed were baseless and excessive.", "51. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, the Court notes that the applicant did no more than refer to the Istanbul Bar Association's scale of fees in respect of his legal representative's claims and failed to submit any supporting documents. The Court therefore only makes an award in respect of the postage costs under this head, namely EUR 50 (see Balçık and Others v. Turkey, no. 25/02, § 65, 29 November 2007).", "C. Default interest", "52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The first and the second applicants were born in 1956 and 1975 respectively.", "5. At the time of the events the first applicant Mr Mustafa Erdoğan was a professor of constitutional law at the University of Hacettepe in Ankara. The second applicant Mr Haluk Kürşad Kopuzlu was the editor of the quarterly publication Liberal Thinking and the third applicant Liberte A. Ş. was a joint-stock company and the publisher of Liberal Thinking (hereinafter: “the publishing company”). Mr Buhay Baytekin, the president of the board of members of Liberte A. Ş. at the material time, applied to the Court on behalf of the publishing company.", "6. In 2001 an article entitled ‘Turkey’s Constitutional Court problem in the light of its decision to dissolve the Fazilet [Virtue] Party’ written by the first applicant was published in Liberal Thinking. It read as follows:", "“The Constitutional Court has finally delivered its judgment on the Fazilet Party at the end of a long period, which lasted more than two years, and has dissolved the party on the grounds that it had become ‘a hub of activity contrary to [the] principles of secularism’. As a result, the high court has decided that Nazlı Ilıcak and Bekir Sobacı, who were members of parliament at the date of the judgment, [should be] stripped of their parliamentary status and it has prohibited former parliamentarians Merve Kavakçı, Mehmet Sılay and Ramazan Yenidede from participating in political activities for the next five years. Only three members of the Court have dissented and I am of the opinion that their names should be mentioned: Haşim Kılıç, Sacit Adalı and Samia Akbulut.", "The judgment of the Constitutional Court has naturally created widespread discontent throughout the country. Apart from a few fanatical individuals in the media who have character deficiencies, everyone who is sensible and whose conscience has not been paralysed has considered the judgment legally wrong and politically inappropriate. Even people whose sensitivities to democratic issues have never been that obvious have criticised the Constitutional Court about this judgment. Nevertheless, it is clear that concerns about the difficulties that the judgment might cause Turkey in its dealings with the Council of Europe and the European Union have played a great role in the emergence of this reaction. Moreover, it is commonly believed that this judgment was not the product of the free will of the Constitutional Court but that it was brought about under pressure [from] and at the suggestion of military circles.", "It is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the Court was put under direct pressure. The first point is important to find out the nature of the present regime in Turkey. From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the Court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices. This can be done only through analysing the judgment from a legal point of view. As a matter of fact, the reasons for judgment have not yet been published. But there is nothing wrong in subjecting the judgment to such an analysis in its form as pronounced to the public. Besides, I do not think that the reasons for judgment when they are published in a few weeks’ time will invalidate our first analysis. Our observations and information regarding the previous judicial approach of the Court demonstrate that the reasoning in the judgment will be ‘prearranged’. In other words, in the established practice of the Court the thing which is termed ‘the reasoning’ is fabricated and formulated at subsequent stages to justify the predetermined judgment [made] on the basis of prior opinions. Now we can submit our first legally relevant observations and evaluation of this judgment.", "1. The Constitutional Court did the right thing by not dissolving the Fazilet Party on the grounds that ‘it was a continuation of a party’. The Court might have acted in this way for two reasons: firstly, the Court might have maintained the type of interpretation which it adopted in its previous judgments on the meaning of ‘being a continuation’ of a party. This means that a distinction was made between continuation in the sociological sense and the continuation of a political tradition, and continuation in a technical legal sense among consecutive political parties. This is an extraordinarily appropriate legal understanding. If this is the case, it means that the Constitutional Court considered that the Fazilet Party, while continuing the political line represented by Milli Nizam (national order) and the Milli Selamet Party in the sociological and political sense, was not the continuation of the Refah Party with another title.", "A second possibility might be the fact that the Constitutional Court adopted the view which is insistently voiced by some constitutional law experts, including the author of this article. According to this view, the Constitution stipulates that ‘a party which was dissolved cannot be re-established under another title’, but neither the Constitution nor the Law on Political Parties require that the sanction of dissolution be applied to such a party if it has acted contrary to the Constitution. If this was the reason for which the Constitutional Court refused the Chief Public Prosecutor’s request to dissolve the Fazilet Party on the basis of it being a continuation of the Refah Party, this only demonstrates that the court did not, at least, violate the positive law in this respect. This in itself does not deserve praise, since acting to the contrary would have been openly unlawful.", "2. On the other hand, the Constitutional Court’s decision to dissolve the Fazilet Party on the grounds that it had become ‘a hub of activity contrary to the principles of secularism’ is clearly contrary to the law and has no factual or legal basis. This judgment is faulty on two grounds. Firstly, the activity which is claimed to be ‘contrary to secularism’ – in fact, it is only comprised of words [and] statements – does not have such characteristics. Most of them concern expressions of concern [about] the social consequences of the lack of freedom created by the prohibition on wearing the headscarf. In other words, these statements have the nature of being demands for freedom voiced by Members of Parliament – mostly from the podium of Parliament. Criticism of a prohibition, especially if it is voiced by members of parliament, cannot be contrary to any democratic and constitutional regime. As long as it is voiced in a peaceful way, a demand for freedom cannot be contrary to the principles of secularism and democracy, even if the right or freedom which constitutes the subject of the demand has not been recognised in positive law. Besides, wearing the headscarf is not prohibited for university students in Turkish law. The prohibition on wearing the headscarf which has been implemented in Turkey in recent years is not a requirement of the current legal order, but it is a result of current power relations. In other words, the existence of this prohibition is a de facto and not a de jure phenomenon.", "Secondly, even if it was against the law for university students to wear the headscarf, this would not make the party whose members are criticising the prohibition and demanding its removal contrary to secularism in a democratic system. Let us leave this fact aside and let us assume that such criticism and such a demand for freedom are contrary to secularism. Even in this case, the fact that some MPs or party members are making such criticism individually does not make the party “a hub” of that activity. In fact, being the “hub” or “focus” of any kind of activity for an organisation means the following: that the activity arose from the centre of that organisation, it is directed, controlled and administered by that centre; and that the activity is performed intensively, decisively and continuously. The facts in the trial record clearly demonstrate that these criteria did not apply to the legal personality of the Fazilet Party. Apart from [the fact that it was] far from being in a position to become the “hub” of the [relevant] activity, the Fazilet Party did not become a determined follower of the issue of the headscarf ban in addition to many other issues. In fact, this party has been the most “obedient” party of the system for the last three years and did not hold a clear and decisive view on any major issue, probably because of the fear of being dissolved.", "It seems that the Constitutional Court considered Merve Kavakçı’s election as an MP for the Fazilet Party – she is still an MP – and the support given by the party to her as proof of the claim that the party had become “a hub of activity contrary to the principles of secularism”. In other words, according to the Constitutional Court, the election of a citizen who wears a headscarf as an MP and her attempt to take the oath in Parliament while wearing the headscarf are contrary to secularism. This is an unsound understanding for many reasons. First of all, if “national sovereignty” is one of the true – not fake – basic principles of Turkey’s constitutional order, no constitutional organ, particularly the Constitutional Court, whose legitimate authority stems from this principle, can impose any restrictions on the nation’s right to elect its representatives. Merve Kavakçı was put forward as a candidate by the Fazilet Party, but she was elected by the Turkish nation. If the Constitutional Court had found this fact to be contrary to secularism, it would have “annulled” the nation. Secondly, there is no provision in the Constitution stipulating that a person who wears a headscarf cannot be an MP and that she cannot take the oath in Parliament in a headscarf. [Nor does] such a provision exist in Parliament’s standing orders. This can be understood from the fact that an initiative was recently launched in Parliament to add such a prohibition to its standing orders. Besides, even if there were such a provision, this would be considered null and void because it would be contrary to the Constitution. In fact, the Turkish Grand National Assembly does not have the right to act [in a way] which would bring about the abolition of the citizens’ rights to elect representatives and to be elected as representatives, which are one of [their] basic rights. Actually, since the aim of the standing orders is to ensure the conduct of Parliament’s activities in an orderly way, a right cannot be annulled with such a procedural action.", "3. This judgment demonstrates that the dominant majority of the Constitutional Court continues to apply its incorrect understanding of what “secularism in a democratic system” is. Unfortunately, the High Court has interpreted secularism in many of its judgments in a totalitarian manner. According to the Court, secularism is not a pro-freedom and pro-peace principle restricting the State, but is a higher principle legitimising the imposition by the State of a certain way of life on citizens. The Constitutional Court considers secularism as the categorical refusal of the demands of religion in the social, public and political arenas. Therefore, it thinks that secularism authorises the State to remove manifestations of religion in society. Moreover, it exalts this principle to the level of being the most important value of the constitutional order. According to this understanding, democracy, the rule of law and human rights are all secondary values, which should [only] be recognised to the degree allowed by secularism.", "Here, the more interesting point is that the Constitutional Court insists on continuing the doctrine of “secularism as a project of social engineering”, which was developed during the authoritarian (occasionally totalitarian) one-party era, in the democratic-pluralist environment. It also stubbornly ignores the pro-freedom/democratic criticism of this notion. Despite the fact that even the Turkish literature on the subject of “secularism in a democratic system” has expanded to a considerable degree in the last ten or fifteen years, our judges in the Constitutional Court turn a blind eye to this literature. Furthermore, in this trial at least, our senior judges did not need to undertake additional efforts to obtain new sources and information on this issue. For example, there was detailed information in the defence brief on how secularism is understood and implemented in contemporary democracies, but it seems that the members of the Court did not read these passages or if they did, they ignored it.", "In this connection, the two judgments of the Constitutional Court which directly concerned the issue of wearing headscarves and its judgments dissolving the Refah Party and the Fazilet Party indicate that this matter has become the key focus of secularism. The conclusion which the Court has reached can be formulated as the following: “to demand the freedom of wearing the headscarf means categorically being against secularism – and indirectly against the Constitution.” This is a totally wrong idea regardless of the perspective one has: it is anti-democratic, it is anti-freedom, it is contrary to secularism and it is pro-conflict. It is anti-democratic because it restricts in an arbitrary way the field of democratic politics and the sphere of activity of democratic political actors. It is anti-freedom because it is oppressive and imposing. It is contrary to secularism because it oppresses religious choices and creates discrimination on the grounds of religion. Finally, it is pro-conflict because it forces the State to quarrel with society and in this way it allows the State to destroy the social peace and order.", "4. The part of this judgment which ends the MP status of some politicians and prohibits them from involvement in further political activities does not contain valid grounds pertaining to the relevant individuals. Specifically, the application of the sanctions against Nazlı Ilıcak on the grounds that she “was one of the people who brought about the dissolution of their party with their activity contrary to secularism” bears no relation to reality and is a ridiculous assertion. The situation is really awkward. A high court imagines that it protects “secularism” by prohibiting a person from being involved in political activities and by ending the MP status of that individual, who meets the criteria of a “contemporary way of life” and “contemporary personal appearances” perfectly. Everybody knows that she has never been in favour of a political regime established on the basis of religion and that she has never made any effort in this direction. This is a typical example of the attitude of the Court demonstrating the absurd results [its] formalist legal reasoning can produce.", "5. All these explanations highlight that the statement of the chairman of the Constitutional Court to the effect that “there is nothing we can do, the laws force us to act in this way, if you do not want us to do so, change the laws”, has no value from a legal point of view. It is true that the Constitution and the laws in Turkey are not pro-freedom; therefore, it is, of course, necessary to improve the positive law. But the major problem in the judgment which dissolved the Fazilet Party is not the unsuitable character of the current law. The problem is that the Constitutional Court interprets the Constitution and the laws which are in force in an authoritarian and narrow-minded way. Let us leave the necessity of the Constitutional Court complying with the provisions of the European Convention on Human Rights and the Strasbourg case-law [to one side]. There are no serious grounds for dissolving the Fazilet Party, even on the basis of the Constitution and the Law on Political Parties. But there is no need [to know] the [provisions of those] laws to understand this fact. The notions which are needed are the notion of law, which does not see legitimacy as the same as the law [itself], a considerable amount of knowledge about the technique of interpretation and legal reasoning and sensitivity to freedom and democracy. In other words, our problem is the fact that most of our constitutional law judges do not know the law, and do not have knowledge of democracy, political and constitutional theory or secularism. Nor do they intend to acquire it.", "It is assumed that the pro-freedom and pro-democracy case-law of the European Court of Human Rights is brought about by the strict interpretation of the Convention. The real situation is different from the one which is assumed: when deciding on cases on the basis of the Convention, which does not include the concept of a “political party”, the Strasbourg Court concludes them by applying a broad interpretation to the provisions concerning freedom of association and expression in accordance with [general] principles and the universal understanding [of those concepts]. The Turkish constitutional court judges, if they wished to do so and could develop the necessary intellectual skills, could ease the restrictive provisions of positive law in Turkey. So long as they wanted to do so.", "Moreover, it is difficult to consider the aforementioned statement of the chairman to be sincere. If the problem is [one of] making changes to the Constitution and the law, the Turkish Grand National Assembly actually enacted a statutory amendment, which defined [what it means] for political parties to become a “hub” in a highly reasonable way and which set criteria to ensure its implementation. Why did the Constitutional Court annul this amendment in accordance with an authoritarian understanding? In this case, the problem is related to the fact that our constitutional court judges have not taken on board freedoms, rather than the assertion that the current laws are unsuitable.", "6. This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it. It is because of this reason that the obstacle to freedoms in Turkey is not Parliament, which does not change the Constitution and which does not enact the necessary laws. The real obstacle is the Constitutional Court, which does not shy away from being the systematic shredder of freedoms. It is urgently necessary to deal with the issue of membership in the Constitutional Court.”", "7. It appears that following the publication of the article all members of the Constitutional Court brought separate civil actions against Mr Mustafa Erdoğan, Mr Haluk Kürşad Kopuzlu and the publishing company (hereinafter “the defendants”), seeking damages for the injury they claimed to have sustained as a result of the applicants’ serious attack on their honour and integrity through the publication of the above article, which had contained, in their view, defamatory passages.", "8. The present applications concern the damages claims brought against the applicants by Ms F.K., Mr Y.A. and Mr M.B., judges and in the case of the last claimant, the president, of the Constitutional Court at the material time.", "9. Before the domestic courts the applicants maintained that, while the expressions used in the article had been severe in terms of form and style, they had remained within the limits of the freedom of expression, as they had had a basis in fact. In this connection, the applicants, referring to the case-law of the European Court of Human Rights, asserted that the article in question had criticised the judgment of the Constitutional Court with respect to its decision to dissolve the Fazilet Party, that the acceptable limits of criticism should be more extensive for judges, high level public officials and politicians than others, and that value judgments which were made on the basis of fact were in conformity with the law.", "On this latter point, the applicants, relying on the views of various academics, politicians and journalists, underlined that a segment of the public believed – rightly or wrongly – that the judgment of the Constitutional Court had been given under the influence of the military and that there were certain parallels between the outcome of the judgment and the general political situation existing in Turkey at the time. Likewise, again relying on various articles, notably certain statements made by a number of judges sitting on the bench of the higher courts, including the Constitutional Court, the applicants argued that the statements regarding the lack of skill of the judges sitting at the Constitutional Court were not without any factual basis.", "The applicants submitted that numerous criticisms had been voiced against the judgment of the Constitutional Court by academics, journalists and politicians, and underlined that the first applicant, who was a professor of constitutional law, had consistently emphasised in his publications that the basic function of constitutional courts – or similar organs – in constitutional democratic systems is to serve as the guarantee of basic rights against arbitrary actions of the State and that high court judges – and indeed judges in general – have to avoid giving judgments corresponding to their ideological opinions and political tendencies.", "10. On 28 March 2002 the 17 th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Ms F.K., jointly, 2,500,000,000 Turkish lira (TRL – approximately 2,000 euros (EUR)) in damages, plus interest at the legal statutory rate running from the date the article in question was published.", "11. In its judgment, the court referred to the following passages:", "“...it is commonly believed that this judgment is not the product of the free will of the Constitutional Court but that it was brought about under pressure from and at the suggestion of military circles... it is certain that the dissolution of the Fazilet Party is closely related to the current political situation, the direction of which has been determined by the status quo powers (‘the deep State’). However, it seems to me that we cannot be sure whether the court was put under direct pressure... From a legal point of view, however, what is more important is how the Constitutional Court gave such a judgment. In other words, the people who should be criticised and who should be held responsible are the eight judges at the court, all of whom are ‘adults’ and ‘sensible’. The real issue is to examine to what extent the professional backgrounds and intellectual capacities of these individuals are sufficient for such a job and to question whether they had the right to act in accordance with their prejudices... In other words, our problem is that most of our constitutional law judges do not know the law and do not have knowledge of democracy, political and constitutional theory and secularism. Nor do they intend to acquire it ... This latest judgment of the Constitutional Court has demonstrated another thing: the professional capabilities of most of the court members are insufficient for the job. Moreover, they are not willing to compensate for this insufficiency. They are closed to knowledge, they have no passion for their jobs and they are incapable of becoming open-minded. They try to fulfil the requirements of their vital duty, finding their way out by sticking together, without feeling uneasy about it.”", "12. The court held that the author, in the above statements, had asserted that the members of the Constitutional Court had rendered their judgment under pressure, that the judges of the court did not know the law, and that their professional knowledge and intellectual capabilities were insufficient. It considered that these expressions constituted defamation of the members of the Constitutional Court, including the claimant, who had rendered the judgment ordering the dissolution of the Fazilet Party.", "13. On 19 December 2002 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.", "14. On 24 March 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 26 April 2003.", "15. In the meantime, on 16 July 2002 the 20 th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr Y.A., jointly, TRL 3,000,000,000 (approximately EUR 1,755) in damages plus interest at the legal statutory rate running from the date of the publication of the article.", "16. In its decision, the court observed that, when read as a whole, the article, instead of merely criticising the establishment, development, and selection of members of the Constitutional Court or providing a technical criticism of the judgment, had contained severe attacks against the judges themselves and their professional or analytical capabilities. Referring to various passages, notably those mentioned by the 17 th Chamber above, the 20 th Chamber considered that the author, who had accused the judges of serious misconduct such as receiving instructions, of acting irresponsibly and of not being independent and lacking reasonable logic and conscience, had gone beyond objective and technical criticism of the Constitutional Court and its judgment and that the article had therefore defamed the claimants.", "17. On 15 April 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.", "18. On 3 July 2003 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 30 July 2003.", "19. Likewise, on 12 December 2002 the 9 th Chamber of the Ankara Civil Court of First Instance ordered the applicants to pay Mr M.B., jointly, TRL 2,500,000,000 (approximately EUR 1,557) in damages, plus interest at the legal statutory rate running from the date the article in question was published.", "20. In its decision, the court, referring to similar passages to those relied on by the other Chambers, considered that the contents of the article had upset the balance between freedom of expression and the need to protect a person’s dignity and honour, and that the author had overstepped the boundaries of acceptable criticism and had used words which constituted defamation.", "21. In this connection, the court stated that the aim of press freedom is to provide correct and truthful news regarding issues of public interest, and that the privileges attached to press freedom were not without limits. It noted in that regard that the freedom of the press was limited by the private law rights and obligations established by the relevant provisions of the Code of Obligations and the Civil Code. The court underlined that in its duty to inform, the press was limited in its criticism by the following rules: truthfulness, public interest, topicality and interconnectedness between the thoughts, the subject and the words used.", "22. The court opined that in the present case, while the overall content of the author’s article had been within the boundaries of criticism, certain remarks contained in the article had gone beyond the limits of acceptable criticism, there had not been harmony between the form and the content, the content had gone beyond the subject of criticism, and words used in the article had constituted defamation of the claimant. It held that the author could have made the same criticism without the use of these words.", "23. On 18 November 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court.", "24. On 29 April 2004 the Court of Cassation dismissed the defendants’ request for rectification of its decision. The defendants were fined in accordance with Article 442 of the Code of Civil Procedure. This decision was served on the applicants’ lawyer on 7 June 2004." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "25. A description of the relevant domestic law at the material time can be found in Sapan v. Turkey, no. 44102/04, §§ 24-25, 8 June 2010.", "THE LAW", "I. JOINDER", "26. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "27. The applicants complained that the judgments given in the civil cases against them had breached their right to freedom of expression as provided in Article 10 of the Convention, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers [...].", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of [...] for the protection of the reputation or rights of others [...]”", "28. The Government did not submit any observations.", "A. Admissibility", "29. The Court notes that the above complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "30. The Court considers that the final judgments given in respect of the actions brought by the three members of the Constitutional Court seeking damages for defamation interfered with the applicants’ right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.", "1. Prescribed by law and legitimate aim", "31. It finds that the interference in question was prescribed by law, namely Article 24 of the Civil Code and Article 49 of the Code of Obligations, and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.", "2. Necessary in a democratic society", "32. In the present case what is in issue is whether the interference was “necessary in a democratic society”.", "(a) General principles", "33. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among others, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V and the references cited therein).", "34. The test of “necessary in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, for example, Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 41, 21 February 2012).", "35. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the measure taken was “proportionate to the legitimate aims pursued”. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV, and Mengi v. Turkey, nos. 13471/05 and 38787/07, § 48, 27 November 2012).", "36. In this connection, the Court reiterates that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI).", "37. When called upon to examine the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).", "38. Where the right to freedom of expression is being balanced against the right to respect for private life, the relevant criteria have been laid down in the Court’s case-law as follows: (a) contribution to a debate of general interest; (b) how well known the person concerned is and what the subject of the publication was; (c) prior conduct of the person concerned; (d) method of obtaining the information and its veracity; (e) content, form and consequences of the publication; and (f) severity of the sanction imposed (see Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012, and Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 45, 3 December 2013).", "(b) Application of these principles to the present case", "39. In the instant case, the Court notes that the applicants were ordered to pay damages for defamation on account of the publication of an article written by the first applicant, a constitutional law professor, who criticised a decision of the Constitutional Court to dissolve a political party. In particular, the applicant considered that the conditions for dissolving the party in question on the grounds that it had become a hub of activity contrary to the principles of secularism had not been met and that the interpretation given by the court to the principle of secularism in general and its application in the case under discussion was not in accordance with the contemporary understanding of that notion in a democracy. In this connection, the applicant questioned the professional competence and the impartiality of the majority of judges sitting on the bench of that court.", "40. The Court has stated on many occasions that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10 (see, for example, Błaja News Sp. z o. o. v. Poland, no. 59545/10, § 60, 26 November 2013, and Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313). It has also underlined the importance of academic freedom (see, for example, Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009; and Sapan v. Turkey, cited above, § 34) and of academic works (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 71, ECHR 2012; and Hertel v. Switzerland, 25 August 1998, § 50, Reports of Judgments and Decisions 1998 ‑ VI). In this connection, academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction (see Recommendation 1762 (2006) of the Parliamentary Assembly of the Council of Europe). It is therefore consistent with the Court’s case-law to submit to careful scrutiny any restrictions on the freedom of academics to carry out research and to publish their findings (see Aksu v. Turkey [GC], cited above, § 71). This freedom, however, is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence. This may include an examination of the functioning of public institutions in a given political system, and a criticism thereof.", "41. The Court finds that the subject matter of the article in question, written by an academic, concerned an important and topical issue in a democratic society which the public had a legitimate interest in being informed of and therefore that the article in question contributed to a debate of general interest. The article was published in the quarterly publication edited by the second applicant and owned by the publishing company represented by the third applicant. In this connection, it reiterates that questions of public interest reported by the press undoubtedly include those concerning the functioning of the system of justice, an institution that is essential for any democratic society (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). The press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them (see Prager and Oberschlick, cited above, § 34).", "42. The Court observes that the claimants in the three sets of damages proceedings summarised above were members of the Constitutional Court who had voted in favour of the dissolution of the Fazilet Party. Consequently, whilst it cannot be said that they knowingly laid themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions, members of the judiciary acting in an official capacity, as in the present case, may nevertheless be subject to wider limits of acceptable criticism than ordinary citizens (see, for example, July and SARL Libération v. France, no. 20893/03, § 74, ECHR 2008 (extracts)). At the same time, however, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying (see Prager and Oberschlick, cited above, § 34).", "43. The domestic courts considered that certain expressions used in the article constituted defamation of the claimants (see paragraphs 12, 16 and 20 above). In particular, the 20 th and the 9 th Chambers of the Ankara Civil Court of First Instance considered that the author had overstepped the boundaries of acceptable criticism in the article.", "44. The Court has examined the article in question and the reasons given in the domestic courts’ decisions to justify the interference with the applicants’ right to freedom of expression. It has taken into consideration the applicants’ interest in conveying to the public the first applicant’s view on a topic of general interest and voicing his criticism, balanced against the claimants’ interest as individuals exercising a judicial function in having their reputations protected and being protected against personal insult. In this connection, the Court reaffirms that the courts, as with all other public institutions, are not immune from criticism and scrutiny. In particular, a clear distinction must be made between criticism and insult. If the sole intent of any form of expression is to insult a court, or members of that court, an appropriate sanction would not, in principle, constitute a violation of Article 10 of the Convention (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003). The Court considers that some of the language and expressions used in the article in question, notably those highlighted by the domestic courts, were harsh and that they could be perceived as offensive. They were, however mostly, value judgments, coloured by the author’s own political and legal opinions and perceptions. In this connection, the Court also observes that they were based on the manner in which the Constitutional Court ruled on certain issues and that these rulings, including the dissolution of the Fazilet Party, were already subject to virulent public debate, as the applicant sought to demonstrate in the domestic proceedings. They could therefore be considered to have had a sufficient factual basis (see, a contrario, Barfod v. Denmark, 22 February 1989, § 35, Series A no. 149). In so far as it concerns statements of fact contained in the impugned article, the Court finds that the domestic courts did not attempt to distinguish them from value judgments, nor do they appear to have examined whether the “duties and responsibilities” incumbent on the applicants within the meaning of Article 10 § 2 of the Convention were observed, or to have assessed whether the article was published in good faith.", "45. In particular, the Court considers that the domestic courts, in their examination of the cases, omitted to place the impugned remarks within the context in which they were expressed. In this connection, it reiterates that style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj v. Hungary, no. 23954/10, § 20, 19 July 2011). Thus, when account is taken of the content of the article as a whole, and the context in which they were expressed, the Court is of the opinion that the impugned strong and harsh remarks contained in the article, set out in general terms, with respect to the judges of the Constitutional Court, cannot be construed as a gratuitous personal attack against the claimants. The Court also takes note that the article in question was published in a quasi-academic quarterly as opposed to a popular newspaper.", "46. In the light of the above considerations, and notwithstanding the national authorities’ margin of appreciation, the Court considers that the interference with the applicants’ freedom of expression was not based on sufficient reasons to show that the interference complained of was necessary in a democratic society for the protection of the reputation and rights of others. This finding makes it unnecessary for the Court to pursue its examination in order to determine whether the amount of damages which the applicants were ordered to pay was proportionate to the aim pursued. It follows that there has been a violation of Article 10 of the Convention.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "47. The applicants further complained under Article 6 of the Convention that the domestic courts had failed to give reasons for their judgments, that they had refused to hear defence witnesses and that they had been denied access to court on account of the imposition of fines at the rectification of judgment stage. They further complained under Article 1 of Protocol No. 1 that the damages awarded to the claimants had been excessive.", "48. Having regard to the facts of the case and its finding of a violation of Article 10, the Court considers that it has examined the main legal question raised in the present application. It therefore concludes that it is not necessary to examine the admissibility or the merits of the above-mentioned complaints (see, for example, Youth Initiative for Human Rights v. Serbia, no. 48135/06, § 29, 25 June 2013; see also Sorguç, cited above, § 44; and Pakdemirli v. Turkey, no. 35839/97, § 63, 22 February 2005).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "49. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage, costs and expenses", "50. The first applicant, Mr Erdoğan, claimed 40,478 euros (EUR) in respect of pecuniary damage. This sum was comprised of the damages he had been ordered to pay in eight sets of legal proceedings and the legal fees he had incurred as a result of those proceedings. He further claimed EUR 10,000 in respect of non-pecuniary damage. Finally, this applicant requested EUR 5,000 in respect of his legal representation before the Court.", "51. The Government underlined that the applicants’ representative had submitted just satisfaction claims only in respect of the first applicant and that the amounts sought were excessive. In this connection, they noted that the applicant was claiming the reimbursement of the damages he had been ordered to pay in eight separate sets of legal proceedings, although he had lodged an application with the Court only in respect of three sets of proceedings.", "52. The Court considers that there is a causal link between the pecuniary damage referred to by the applicant and the violation of the Convention found above only in so far as it concerns the damages claims lodged by Ms F.K., Mr Y.A. and Mr B.M. (see paragraph 8 above). Therefore, the Court finds that the reimbursement by the Government of the damages paid by the applicant in respect of those proceedings, plus the statutory interest applicable under domestic law, running from the date on which the applicant paid the relevant sums, would satisfy his claim in respect of pecuniary damage (see Mengi, cited above, § 63).", "53. It further considers that the applicant has suffered non ‑ pecuniary damage as a result of the domestic courts’ judgments in respect of his article, which were incompatible with Convention principles. This damage cannot be sufficiently compensated for by a finding of a violation. Taking into account the circumstances of the case and having regard to its case-law, the Court awards the applicant EUR 7,500 in respect of non ‑ pecuniary damage.", "54. As to costs and expenses, the Court observes that the applicants’ representative submitted, in support of the first applicant’s claim, receipts corresponding to lawyers’ fees in respect of eight sets of legal proceedings, three of which are relevant for the purpose of the present case. It notes, however, that the payments appear to have been made by the publishing company and not by the first applicant. Furthermore, no document or explanation was provided by the applicants’ representative as regards the amount claimed in respect of the costs and expenses incurred before the Court. Accordingly, the Court makes no award under this head.", "55. Likewise, the second and the third applicants did not submit a claim for just satisfaction. Therefore, the Court considers that there is no call to award them any sum on that account.", "B. Default interest", "56. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant lives in Beira, Mozambique.", "5. On 29 and 30 September and 1 October 1996, the two main evening newspapers in Sweden, Expressen and Aftonbladet, published a series of articles in which various criminal offences were ascribed to the applicant, including an assertion that he had murdered Olof Palme, the Swedish Prime Minister, in 1986. As part of the publication of this information, the newspapers also reported statements of individuals who rejected the allegations made against the applicant. Moreover, on 1 October, Expressen published an interview with the applicant, in which he denied any involvement in the alleged offences.", "6. On 23 September 1998 the applicant brought a private prosecution against the newspapers through their legally responsible editors ( ansvariga utgivare ). He claimed that the editors were responsible for gross defamation, or alternatively defamation of a normal degree, under chapter 7, section 4, subsection 14 of the Freedom of the Press Act ( Tryckfrihets-förordningen ), and chapter 5, section 2 (or section 1) of the Criminal Code ( Brottsbalken ). He also joined an action for damages to the private prosecution and sought compensation for mental suffering and pecuniary damage.", "7. The District Court ( tingsrätten ) of Stockholm held an oral preparation of the case on 1 February 1999 and an oral hearing on 27-28 January and 1 ‑ 3 February 2000. It heard several witnesses. In accordance with the normal procedure in cases concerning criminal liability under the Freedom of the Press Act, the court sat with three professional judges and a jury of nine members.", "8. The District Court put to the jury 66 questions relating to the articles published in Expressen and 76 questions relating to the articles published in Aftonbladet. Each question referred to one or more statements or pictures published in the various articles, and the jury had to answer whether the publication of the statements or pictures constituted gross defamation or defamation of a normal degree. The jury answered all but six questions in the negative. In accordance with the applicable rules, the jury ’ s finding of “ no guilt ” was final. As regards the remaining six questions, however, the jury found that certain published statements or pictures amounted to defamation of a normal degree. The court then had to make a re-assessment of liability. The contravening statements or pictures were the following:", "1. The heading on the front page stating “He is pointed out as PALME ’ S MURDERER” [“ Han pekas ut som PALMES MÖRDARE ”] together with a picture of the applicant. [ Expressen, 30 September 1996 ]", "2. The text on page 6 reporting a statement made by an unnamed source within the South African intelligence service: “He is the type of person that you do not cheat unpunished. He kills without a second ’ s hesitation.” [“ Han är den typen av person som man inte lurar ostraffat. Han dödar utan en sekunds tvekan. ”] [ Aftonbladet, 29 September 1996 ]", "3. The text on page 6: “In addition to Long reach, Williamson and White had several companies together, some with links to the Mafia. Among others, the GMR Group in the Seychelles which was used for laundering money from illegal activities. When Long reach was wound up, White is supposed to have started a sawmill in Beira in Mozambique. A perfect cover for other activities. Weapons and drugs are two products that have been mentioned.” [“ Vid sidan av Long reach hade Williamson och White flera andra företag ihop, en del med kopplingar till maffian. Bland annat GMR Group på Seychellerna som användes för att tvätta pengar från illegal verksamhet. När Long reach avvecklades ska White ha startat ett sågverk i Beira i Mocambique. En perfekt täckmantel för annan verksamhet. Vapen och droger är två produkter som nämnts. ”] [ Aftonbladet, 29 September 1996 ]", "4. The text on page 6 : “White has been dealing with most things. – He is one of southern Africa ’ s biggest poachers, tells a source. It is to a large degree his fault that the elephants in Mozambique are all but extinct. Together with Williamson, Anthony White appropriated the ivory. ” [“ White har sysslat med det mesta. – Han är en av södra Afrikas största tjuvskyttar, berättar en källa. Det är till stor del hans skuld att elefanterna i Mocambique är så gott som utrotade. Anthony White tog tillsammans med Williamson hand om elfenbenen. ”] [ Aftonbladet, 29 September 1996]", "5. The subheading on page 6 “ ... but earns more on smuggling and poaching” [“ ... men tjänar mest på smuggling och tjuvjakt ”] together with the ensuing text stating “But according to several statements, the main part of his income derives from smuggling and poaching.” [“ Men enligt flera uppgifter kommer största delen av hans inkomster från smuggling och tjuvjakt. ”] [ Aftonbladet, 30 September 1996 ]", "6. The caption on page 7 “TODAY – SMUGGLER IN MOZAMBIQUE” [“ I DAG – SMUGGLARE I MOCAMBIQUE ”] under a picture of the applicant. [ Aftonbladet, 30 September 1996 ]", "9. By a judgment of 24 February 2000, the District Court acquitted the editors in all respects and rejected the applicant ’ s claims for damages. It found that all six passages in issue depicted the applicant as a criminal or a person with a reprehensible lifestyle. However, given, inter alia, the great general interest in these statements in Sweden, the court found that it had been justifiable to publish the relevant statements and pictures. It further considered that the newspapers had had a reasonable basis for the published information. In the latter respect, the court had regard to how and from whom the information had been obtained and to the fact that, due to the nature of the information in question and the constraints of a fast news service, the possibility of checking the veracity of the statements had been limited.", "10. The applicant appealed to the Svea Court of Appeal ( Svea hovrätt ). The appellate court held an oral hearing and heard essentially the same witnesses as the District Court.", "11. On 21 February 2002 the Court of Appeal upheld the District Court ’ s judgment. It gave the following reasoning:", "“The Court of Appeal finds, like the District Court, that the relevant information in Expressen and Aftonbladet depicts Anthony White as a criminal and as having a reprehensible lifestyle. The information has been liable to expose him to the contempt of others and consequently, as such, constitutes defamation.", "The question then is whether there are grounds for excluding liability. Pursuant to chapter 7, section 4, subsection 14 of the Freedom of the Press Act, and chapter 5, section 1, subsection 2 of the Criminal Code, liability for defamation by means of printed matter is excluded if two conditions are met: 1) it would be justifiable to communicate the information, and 2) the information should be correct or the communicator should have had a reasonable basis for the assertion.", "If the information is correct it may as a rule be communicated even if it is deprecatory, if this is justifiable with reference to the public news interest. However, there is no general right always to speak the truth if the statements are offensive. A balance has to be struck between the protection against offensive statements and the demands of freedom of speech. In certain situations the interest of protecting someone against offensive statements has to yield to the public interest.", "Expressen has claimed that, on account of the public interest – the murder of the country ’ s prime minister –, it was justifiable to name and show a photograph of Anthony White in the newspaper. Aftonbladet, for its part, has asserted that, in the circumstances, it was justifiable to describe Anthony White ’ s personality and conduct.", "The question of who killed Olof Palme attracted at the relevant time and still attracts considerable public interest. As regards the question of whether in the circumstances it was justifiable to communicate the information, the Court of Appeal agrees with the District Court ’ s assessment that it was obviously legitimate to write about the so-called “ South Africa trail” and to present information in this regard. However, the question is whether it was justified to identify the plaintiff by name and picture in the manner employed and to publish statements to the effect that he was supposed to be guilty of large scale, serious criminality.", "[The responsible editors] have asserted that the publications in question were not remarkable in view of the fact that it was commonly known who Anthony White was and of which crimes he was guilty. It emerges from the information that has come to hand in the case that, within certain groups in southern Africa and Europe, it was known that Anthony White had engaged in the alleged activities. It has also been shown that books have been published in which Anthony White has been named and his service as an elite soldier in the army unit Selous Scouts, which has a dubious reputation, has been described. The information in the case reveals that Anthony White has been much better known than he has wished to admit in southern Africa and among representatives of various organisations for the protection of animals and the conservation of nature in southern Africa as well as in Europe. Anthony White does not therefore appear as an ordinary private person with regard to whom there is a particular interest of protection.", "In view of the above, and for the reasons given by the District Court in this respect, the Court of Appeal finds that it was justifiable in the circumstances to publish Anthony White ’ s name and picture in Expressen and to publish information about the person Anthony White in Aftonbladet. In so finding, the Court of Appeal has also taken into account that Anthony White had declined to comment on information presented by the journalists of Aftonbladet.", "With respect to the question of whether the information is correct, it is word against word. Anthony White has asserted that he is innocent of all the accusations, that the information given about him was based on pure invention, that it is unverified or given by untrustworthy persons and that it was based on third or fourth generation hearsay, while [the responsible editors] appear still to assert that it cannot be excluded that Anthony White could be the person who murdered Olof Palme. The Court of Appeal concludes, however, that [the responsible editors], who have the burden of proof for their claims, have not shown that the disseminated information was correct.", "As regards the question of whether there has been a reasonable basis for the assertions, the Court of Appeal takes account of the following considerations.", "In defence of the publications in question, [the responsible editors] have asserted, among other things, that Anthony White ’ s name and picture have been published in international news media and on Swedish television.", "In response to what has been stated in this respect, the Court of Appeal would point out that each newspaper is responsible for its own publication. Consequently, the fact that the name and picture of the plaintiff had already been published by other news services has not relieved Expressen and Aftonbladet of the obligation to make their own assessment of the credibility of the information. The fact that the information had already been published by other media shows, however, that these news services might have considered that there was a reasonable basis for the information.", "In their defence, [the responsible editors] have also pointed out that, despite time constraints, they had careful checks made which gave an unequivocal picture of Anthony White.", "It has been established that the main basis for the assertions in issue in the case was the statements made by [the former senior official of the South African security police] Dirk Coetzee and that the newspapers checked that information mainly by having the journalists who wrote the articles contact journalist colleagues, public servants [and] representatives of various organisations for the protection of animals and the conservation of nature. However, with a few exceptions, the persons contacted have not been named.", "The contents of the testimony given by [the six journalist witnesses ] before the Court of Appeal show that each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee ’ s statements and to check with reliable sources who the person Anthony White was. What has come to hand in the case reveals that the witnesses, each one through their own work, have received concordant information. Checks have been made with several informants in different countries and in different capacities. ...", "Having regard to the above, in particular the checks made, and to the fact that the informant Dirk Coetzee also here [before the Court of Appeal] has given the impression of being a credible person, the Court of Appeal considers that the communication of the identifying information does not appear unjustified. In the Court of Appeal ’ s view, there has been a reasonable basis for the assertion and the reproduction of the picture in Expressen. The Court of Appeal further considers that Aftonbladet, in the circumstances, must be considered to have performed the checks that were called for. Having regard to this and the reasons given with respect to the publication in Expressen, the Court of Appeal finds that there was also a reasonable basis for the assertions in Aftonbladet .”", "12. On 29 May 2002 the Supreme Court ( Högsta domstolen ) refused the applicant leave to appeal." ]

[ "II. RELEVANT DOMESTIC LAW", "13. In order for an act committed by means of printed matter to constitute a criminal offence it must be punishable under both the Freedom of the Press Act and general criminal law.", "Chapter 7, section 4 of the Freedom of Press Act provides:", "“With due regard to the purpose of freedom of the press for all, specified in chapter 1, the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable by law: ...", "14. defamation, whereby a person designates someone as a criminal or as having a reprehensible lifestyle, or otherwise communicates information liable to expose that person to the contempt of others, and, if the person defamed is deceased, the act causes offence to his survivors, or might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable to communicate the information, having regard to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for the assertion; ...”", "Chapter 5, section 1 of the Criminal Code reads:", "“A person who designates someone as being a criminal or as having a reprehensible lifestyle or otherwise communicates information liable to expose that person to the contempt of others, shall be sentenced for defamation to a fine.", "If he was duty-bound to make a statement or if, in the circumstances, it was otherwise justifiable to communicate information in the matter, and proof is presented that the information was correct or there were reasonable grounds for the assertion, liability shall be excluded.”", "Chapter 5, section 2 of the Criminal Code provides:", "“If the offence defined in section 1 is regarded as gross, the person shall be sentenced for gross defamation to a fine or to imprisonment of no more than two years.", "In assessing whether the offence is gross, particular regard should be had to whether the information, because of its content, the scope of its dissemination or otherwise, was liable to cause serious damage.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "14. The applicant complained that his right to respect for his private and family life under Article 8 of the Convention had been breached as the courts had failed to provide due protection for his name and reputation. Article 8 reads insofar as relevant as follows:", "“1. Everyone has the right to respect for his private ... life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”", "15. The Government contested that argument.", "A. Admissibility", "16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "17. The Government submitted that there was no indication that the Swedish courts, in striking the required balance in the present case, had failed to give sufficient weight to the applicant ’ s rights under Article 8. They considered therefore that the case did not disclose a failure on the part of Sweden to secure the applicant ’ s right to respect for his private life under that provision.", "18. The applicant did not submit any observations.", "19. The Court first finds that the publication of the impugned statements and pictures relating to the applicant falls within the scope of his private life, within the meaning of Article 8 § 1 of the Convention.", "20. Noting that the applicant did not complain of an action by the State, but rather the lack of adequate State protection, the Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals.", "The boundary between the State ’ s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references).", "21. In the present case, the protection of private life had to be balanced against the freedom of expression guaranteed by Article 10 of the Convention.", "Freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. This freedom under Article 10 is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, a constant thread running through the Court ’ s case-law is the insistence on the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Badsgaard v. Denmark [GC], no. 49017/99, § 71, 17 December 2004, with further references).", "However, protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith, on an accurate factual basis, and provide “reliable and precise” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations. Also of relevance for the balancing of competing interests which the Court must carry out, is the fact that, under Article 6 § 2 of the Convention, individuals have a right to be presumed innocent of any criminal offence until proven guilty ( ibid., § 78, with further references ).", "22. Turning to the facts of the present case, the Court first notes that the Court of Appeal found that the information published in Aftonbladet and Expressen, as such, constituted defamation of the applicant. It is thus important whether the journalists of the two newspapers may be considered to have acted in good faith and complied with the ordinary journalistic obligation to verify factual allegations and, in assessing the responsibility of the Swedish State, whether the courts made a reasonable and sufficient examination in this respect.", "23. It is to be noted that the impugned articles mainly contained reports of allegations made by others, in particular Dirk Coetzee, a former senior official of the South African security police. As noted by the Court of Appeal, the journalists who wrote the articles had contacted journalist colleagues, public servants and representatives of various organisations in different countries and capacities in order to verify those allegations. After hearing six journalists as witnesses, the appellate court concluded that “each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee ’ s statements and to check with reliable sources who the person Anthony White was”. In this connection, regard should further be had to the fact that the newspapers in question also reported statements of individuals who rejected the allegations against the applicant, that Expressen published an interview with the applicant at the relevant time and that Aftonbladet had given him an opportunity to comment on the information published.", "In view of the above, the Court considers that, in the series of articles, the newspapers endeavoured to present an account of the various allegations made which was as balanced as possible in the particular circumstances. Furthermore, having regard to the persons contacted in order to have the allegations verified, the journalists involved must be considered to have acted in good faith.", "24. Moreover, in addition to the evidence given by the journalists, the Court of Appeal also heard Mr Coetzee personally and found him to be a credible person. In these circumstances, the court must be said to have made a thorough examination and had relevant and sufficient reasons to conclude that there was a reasonable basis for the publication of the statements and pictures in question.", "25. Nevertheless, the published articles contained strong statements which designated the applicant as a serious criminal. It does not appear that he has been convicted of any of the offences ascribed to him. The statements clearly tarnished his reputation and, moreover, disregarded his right to be presumed innocent until proven guilty according to law.", "26. The Court must therefore assess whether the domestic courts struck a fair balance between the two conflicting values guaranteed by the Convention, namely the protection of the applicant ’ s reputation as part of his right to respect for his private life and the newspapers ’ freedom of expression. In that respect, it needs to be ascertained whether the courts applied standards which were in conformity with the principles embodied in Articles 8 and 10 of the Convention.", "27. To begin with, the Court considers that the domestic standards concerning the exclusion of liability for defamation by means of printed matter, as laid down in the relevant provisions of the Freedom of the Press Act and the Criminal Code are, as such, in conformity with Convention standards. Moreover, the Court of Appeal clearly recognised the conflict between the two opposing interests and applied the domestic legal provisions by weighing the relevant considerations in the case.", "28. Regarding the effect which the publication had on the applicant ’ s private life, the Court of Appeal found that the published information had been liable to expose him to the contempt of others and, as such, was defamatory. It further concluded, however, that the evidence in the case showed that the applicant was well known in southern Africa and among representatives of organisations for the protection of animals and the conservation of nature, and that within certain groups it was known that he had engaged in the alleged activities. The appellate court therefore considered that he was not an ordinary private person in respect of whom there was a particular need of protection.", "29. The Court of Appeal balanced the applicant ’ s interests against the public interest in the relevant matters, namely the unsolved murder of the former Swedish Prime Minister Olof Palme and, especially, the so-called “ South Africa trail” in the criminal investigation. Undoubtedly, both the murder of Mr Palme and that particular avenue of investigation were matters of serious public interest and concern. As such, there was little scope for restricting the communication of information on these subjects.", "30. Having regard to what has been stated above, the Court finds that the domestic courts made a thorough examination of the case and balanced the opposing interests involved, in conformity with Convention standards. In the circumstances of the case, they were justified in finding, in their discretion, that the public interest in publishing the information in question outweighed the applicant ’ s right to the protection of his reputation. Consequently, the Court cannot find that there has been a failure on the part of the Swedish State to afford adequate protection of the applicant ’ s rights under Article 8 of the Convention.", "There has accordingly been no violation of that Article." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1957 and lives in Kristiansand.", "A. Factual background to the defamation proceedings brought by the applicant", "6. On 19 May 2000, two girls of eight and ten years of age were raped and stabbed to death in Baneheia, a recreation area in the city of Kristiansand. Two young men were later convicted of the crimes and sentenced to 21 and 19 years of imprisonment respectively for rape and murder committed in particularly aggravating circumstances. The case received intense and extensive coverage in the national media.", "7. In 1988 the applicant had been convicted of murder, attempted murder and eight instances of assault, all committed by the use of knife in June 1987 in Kristiansand. He had been sentenced to 11 years ’ imprisonment and to five years ’ security measures ( sikring ) (which under the relevant law at the time, could be imposed where it was established that the person concerned was not mentally ill (and thus criminally liable) but had an underdeveloped and permanently impaired mental capacity and that, because of this condition, there was a clear risk of his or her committing further criminal offences ). Shortly before the expiry of the security measures on 20 September 1999, the public prosecutor had requested a prolongation, which a first instance court had granted in March 2000 for a period of three years (but which an appellate court refused in January 2001). In May 1999 the applicant had been released from security detention ( lukket sikring ) and had been placed under supervision at liberty ( fri sikring ). Thereafter he had lived in Kristiansand, partly in a camping cabin and partly in his family ’ s cabin by the river and had been working at a protected workplace for persons on rehabilitation scheme. He was a substance abuser and was connected to a group which used to gather at the so-called “Acid Knoll”, a place in the recreation area where the murders had taken place.", "8. During the early stages of the murder investigation, the applicant and a number of other previously convicted persons were interrogated as witnesses. The police ’ s interest in the applicant attracted considerable media attention.", "9. Two days after the murder, the police collected the applicant from his workplace and brought him to the police station. The police interrogated him for 10 hours until 00.30 am on 24 May 2000, and then brought him to his home. The interrogation became known to the press and was presented in the national media on 23 and 24 May 2000 together with information about his criminal trial in 1988 and the imposition of security measures in his case. In their issues published on those dates, three national newspapers, Aftenposten, Dagbladet and Verdens Gang, reported on the applicant but without stating his identity.", "10. Also a national television channel, the TV2, gave extensive reports. In a news broadcast on 23 May 2000, at 9 pm (while the applicant was being interrogated), it stated:", "“Possibly the most special candidate of these persons (former convicted, Court ’ s addition) is precisely this 42-year-old because of his past and because he has been seen in the area where the murder occurred, at the time when it occurred, but so far there are no suspects, and it is precisely that which now is a little exciting in this case. Habitually, this type of investigation takes a long time, but when one carries out this type of alibi checkups, the case may soon take a new and special turn.”", "11. In a news broadcast on 24 May 2000, 6.30 pm, TV2 reported that members of the press had followed a 42 year old murderer from Kristiansand in his footsteps. Then ensued an interview with the applicant, during which he was filmed from behind and partly from the side, on his way to the so-called “Acid Knoll” in the Baneheia area.", "12. On 25 May 2000 Dagbladet published information about the applicant ’ s place of residence, in a report which also contained an interview with him.", "B. Publication giving rise to the defamation proceedings brought by the applicant against Fædrelandsvennen", "13. On 24 May 2000, the newspaper Fædrelandsvennen, which is mainly a subscription newspaper (45,000 subscribers) and the principal district newspaper on the southern coast of Norway, published a report on the Baneheia case. The front page carried the following headline and introduction:", "“ Convicted Murderer: I am completely innocent", "AT WORK: At 7.10 this morning, a 42-year-old convicted murderer from Kristiansand toddled off to the bus to return to work. Last night, he had been driven home by the police, after having been interrogated for approximately 10 hours concerning his movements on Friday, the day when C and D were killed.", "ALIBI: - I am completely innocent, said the 42-year-old to Fædrelandsvennen in the early hours of today. The man says he has an alibi for Friday night. The 42-year-old, who was seen by several witnesses in Baneheia on Friday, is probably the most interesting of several criminally convicted persons whose movements are now being checked by the police.", "SENTENCE TO SECURITY MEASURES: In 1988, the 42-year-old was sentenced to 11 years imprisonment and five years security measures [ sikring ] for one murder by knife, one attempted murder and several other acts of violence, with knife. The term of security measures [ sikringstid ] imposed on him expired on 20 September last year, but as late as in March this year, he was sentenced to another three years of security measures. The judgment has been appealed against.”", "Inside the newspaper at page 4 appeared an article entitled", "“ Murder convict returns to work today ”", "With the subtitle:", "“ I am completely innocent ”", "14. The article contained a brief interview with the applicant, in which he stated that he had nothing to do with the matter and that he had witnesses. Next to the article appeared a large photograph showing the applicant from the side while entering a bus, not showing his head and the upper part of his bust inside the bus. A caption stated that the 42 year old was on his way to work at 7 am and: “ ‘ I am completely innocent`”, says the previously murder convicted man who yesterday was interrogated for 10 hours.”", "15. Underneath on the same page, the paper reproduced another article entitled:", "“ Sent home after 10 hours ’ interrogation ”", "The introduction stated :", "“At 2 pm yesterday a 42 year old murder convict was fetched by the police at his workplace. 11 hours later he was brought to his home”", "16. The article was accompanied by a large photograph of “the 42-year-old”, with his head blurred, accompanied by two police officers.", "17. The article stated that the police had collected him at his workplace in the afternoon of 23 May 2000 for a 10 hour long interrogation. It described inter alia the background for the police ’ s interest in the applicant, reiterating that he had purportedly been seen by several witnesses in Baneheia on Friday night when the two girls had disappeared. Furthermore, reference was made to the factual background of his conviction in 1988. The following sub-titles were used: “Seen by the police”, “Released for one year”, “Berserk with a knife”, and “Victims at random”.", "18. The article further quoted statements by a Chief Constable, Mr A. Pedersen, underlining that there “ were still no suspects in the case” and that all of the people summoned for questioning had “formal status as witnesses in the case.” This point was further elaborated on in an interview with the Chief Constable on the same page, entitled “No one imprisoned today.”", "19. In yet another article appearing under the heading “Have got the murderer in the papers”, the Chief Constable was quoted to have said to Verdens Gang that “the police have received so much information of substance that they have the answer in their documents to the question who had murdered the two young girls.”", "20. The Baneheia case was also the main item on the front page of Fædrelandsvennen on 25 May 2000, with the heading “DNA traces found at murder place”. The article reiterated that according to the preliminary autopsy report, both of the girls had been sexually abused, that they had been murdered with a pointed and sharp penetrating arm, most probably with a knife. Page 6 of the paper contained an interview with some neighbours of the 42 year old, entitled “Neighbours fear prejudgment”, published together with a photograph of a residential development site. The article named a specific residential development area, Q, and its precise location, Z, stating that it was the “nearest neighbour to the 42-year-old convicted of murder.”", "21. In a further article on the same page, under the heading “They want to know where I am”, the paper mentioned the name of the street where the applicant lived (Y), that of his neighbourhood (Z), and that of the company where he worked. The article rendered a statement by the applicant maintaining his innocence and informing that the police had wanted to know his whereabouts but had let him in peace. Next to the article appeared a photograph of the applicant seen from behind, at a relatively long distance, on his way down towards the Z-river, with the caption: “The 42 year old murder convict on his way home yesterday”.", "22. On the same page appeared an article headed “Searching for a locally known murderer”, which quoted Chief Constable Pedersen as stating inter alia that the main emphasis of their investigation had been based on the belief that the murderer(s) had been locally known but that a wider Nordic focus had also been discussed. He had added that it was dangerous to concentrate the investigation on a specific milieu.", "23. At the material time, Fædrelandsvennen was published in the afternoon, whereas Dagbladet, Verdens Gang and Aftenposten were published in the morning.", "C. Defamation proceedings brought by the applicant against Fædrelandsvennen", "24. In October 2000, after the arrest of the actual perpetrators in the Baneheia case, the applicant, represented by a lawyer, demanded that Fædrelandsvennen apologise for its coverage and compensate him for pecuniary and non-pecuniary damage he had sustained. As the newspaper refused, in December 2000 the applicant ’ s lawyer brought on his behalf defamation proceedings before the Kristiansand City Court ( tingrett ) against Fædrelandsvennen, its editor-in-chief, Mr F. Holmer-Hoven and journalist B. The applicant claimed compensation for pecuniary and non-pecuniary damage.", "25. By a judgment of 16 April 2003 the City Court rejected the applicant ’ s action.", "26. The applicant then appealed to Agder High Court ( lagmannsrett ). He waived his claim for pecuniary damage, which matter was formally discontinued ( hevet ), but maintained his claim for non-pecuniary damage.", "27. By a judgment of 23 December 2004, the High Court, sitting with three judges, found that an ordinary reader could perceive the impugned press reports published by the Fædrelandsvennen on 24 and 25 May 2005 as pointing to the applicant as a possible perpetrator of the murders of the two girls in Baneheia. The High Court observed that, although the paper had not mentioned the applicant by name, it ought to have been possible for those who knew him in advance to recognise him, in particular from the photograph taken of him from behind and from the information about his residence- and work places contained in the 25 May 2000 issue. It was hard to derive anything specific about the strength of the suspicion. Although it was true that formally speaking the applicant had only been given witness status, seen as a whole the report was capable of giving the ordinary reader the impression that the paper regarded the applicant as a person who already at an early stage of the investigation had stood out as the most probable perpetrator among those who had been in the police ’ s search light. The High Court moreover noted a number of other aspects of the publications confirming this impression. It concluded that the impugned publications were defamatory in the sense of Article 247 of the Penal Code.", "28. As to the question whether the publications were unlawful ( rettstridig ), the High Court was of the view that it generally should fall within the State ’ s margin of appreciation to strike a fair balance between the interests in protection of freedom of speech under Article 10 of the Convention and the interests in protection of reputation under Article 8, bearing in mind also the presumption of innocence under Article 6 § 2. On the particular facts of this case, the High Court considered that there was undoubtedly a great public interest in the investigation of the murders and in the pursuit of the culpable persons. However, with two votes to one, the High Court found that, on balance, the interests in allowing the publications weighed more heavily than those against and that the impugned news coverage had therefore not been unlawful.", "29. The dissenting member found that the “identification” of the applicant and its extensive press coverage by Fædrelandsvennen had been unlawful and that he should be awarded compensation under section 3-6 of the Damage Compensation Act 1969, namely NOK 150,000 by the newspaper and NOK 25,000 each from the editor-in-chief and from the journalist.", "The applicant appealed against the High Court ’ s application of the law to the Supreme Court, alleging that it entailed a violation of Articles 6 § 2 and 8 of the Convention. He maintained that in its coverage on 24 and 25 May 2000 the Fædrelandsvennen had portrayed him as the perpetrator of the most aggravated offences seen in modern times in Norway. He had not consented to the media coverage which had been a great burden to him. He had lost his job and home and suffered from serious psychological problems.", "30. By a judgment of 14 December 2004 the Supreme Court, by three votes to two, found in favour of the respondents and rejected the applicant ’ s claim.", "31. Mr Justice Stang Lund, whose reasoning was endorsed in the main by the other judges in the majority, inter alia concurred with the High Court ’ s finding that, the Fædrelandsvennen ’ s focus on the applicant as a previously convicted knife killer, his presence in Baneheia on the day when the criminal acts had been committed and the investigation of the applicant, for an ordinary reader must have been perceived as if he could be suspected of having committed the murders. It had already been publicly known that the perpetrators of the murders had used pointed penetrating weapons against the girls. This information together with the rendering of parts of the judgment by which the applicant had been convicted in 1988 and the security measures case, were likely to harm his good name and reputation and to expose him to hatred and contempt, thus fulfilling the objective constitutive elements in Article 247 of the Penal Code. On these points Mr Justice Stang Lund stated:", "“ ( 56) Taking as a starting point the wording, typography, the internal context and the use of photographs it must be ascertained how the report and articles were likely to be understood by the ordinary reader .... The statements must be considered in the context of the whole report they are part of.", "(57) The High Court unanimously found that the factual information had to be considered in the context of the other content of the reports and the articles published on 24 and 25 May 2000, and concluded:", "‘ In the High Court ’ s opinion the conclusion of the interpretation is that Fædrelandsvennen pointed to [the applicant] as a possible perpetrator of the murders of the two girls in Baneheia. His name is not stated, but it was possible for those who previously knew [the applicant] to recognize him in particular because of the photograph taken of him from behind and because of the information about where he lives and the work place in the report dated 25 May. It is difficult to evaluate how strong the suspicion created was. Even though it is correctly underlined that the police had given [the applicant] only a witness status without formally charging or suspecting him, in the High Court ’ s view the report as a whole was capable of giving the ordinary viewer the impression that the newspaper considered [the applicant] to be a man who already at this early stage in the investigation stood out as the most likely perpetrator among the persons who were in the police ’ s search light. ’", "(58) The High Court, amongst other aspects, emphasised that in the front page story of 24 May it was stated that [the applicant] was ‘ probably the most interesting of several convicted persons whose movements are now being checked by the police ’, that he had been questioned for 10 hours after having been collected by the police at his work place, and that the report was illustrated with Dagbladet ’ s photograph of [the applicant] with his head blanked, being escorted by two police officers. The High Court found that the photograph created associations of arrest. This was presented together with the information that, after having been brought home, another police car with a dog patrol had arrived at the house, had passed by in low speed, had turned and had vanished in the dark. In addition to this the newspaper rendered statements by a police inspector to Verdens Gang that the police had received much information with substance, and that the answer to who had killed the two little girls was to be found in the police records. Also the rendering on 25 May that the police were looking for a locally known murderer with a greatly deviant personal character, in the High Court ’ s opinion supports the view that the applicant may be a person with the special character that are a requisite for committing such a heinous crime. The High Court did not find that the rendering of [the applicant] ’ s denial and of the neighbours ’ warning against prejudging were sufficient to weaken the suspicion created by the newspaper coverage as a whole.", "(59) I concur with the High Court in that the focus by Fædrelandsvennen on [the applicant] as a previously convicted knife killer, his presence in Baneheia that afternoon the misdeed was carried out, and the investigation of him, for an ordinary reader must have been perceived as if he could be suspected of having committed these killings. It was already publicly known that the perpetrator(s) had used knives when the girls were killed. This information, together with the description of parts of his criminal conviction from 1988 and the security measures [ sikring ], was likely to harm [the applicant] ’ s good name and reputation and to expose him to hatred and contempt. The objective description of the offence in Article 247 is therefore fulfilled.", "(60) The adversary party has stated that the reports in Fædrelandsvennen of 24 and 25 May did not contribute to identify [the applicant] beyond that occurred in TV2 in the evening of 24 May, where he was interviewed and filmed from behind and from the side while walking towards Baneheia. My comment to this is that Fædrelandsvennen in connection with the reports of 25 May 2000 about [the applicant] informed about ‘ the 42 year old ’ s ’ work place and place of residence. The photograph from the previous day depicting [the applicant] entering a bus, a new photograph of 25 May showing [the applicant] with the same jacket and with a plastic bag on his way home ‘ to the house in ... .[the applicant] ’ s road at Z ’, and the article from the newly constructed housing area in Æ at Z, may have led to more people in the near environment becaming aware of [the applicant] ’ s identity.”", "32. As to the further question whether the allegations were unlawful ( rettstridige ), Mr Justice Stang Lund observed inter alia the following with regard to the concrete circumstances of the case:", "“(76) It is self-evident that the rapes and killings in Baneheia on Friday, 19 May 2000 were of great public interest. The news media had a duty to report, and the public had a right to receive, information about the misdeed, the investigation and the progress in the case. It is clearly a matter of public interest that previously convicted felons are in the police ’ s searchlight, and that interrogations and other police work is taking place to check witnesses out of the case or to charge them. In the near environment it may be of public interest to be informed about the fact that a previously convicted killer in the area in respect of whom a case concerning prolongation of security measures was pending, has been brought in by the police for questioning.", "(77) This must however be weighed against the interest of privacy and the protection of reputation, when the media circles in and identifies one or a few previously convicted persons being under investigation. At this stage the public normally has no legitimate interest to receive detailed information about previously convicted persons and their identity, hereunder descriptions of the criminal offences for which they have been convicted. However, in this very special case people living in the vicinity had a particular interest in knowing that a person who had previously been found guilty of murder and of violent assault and who had been sentenced to security detention, was living in the area, so that they could protect their own and their children ’ s interests.", "(78) The character of the allegation and, in particular, its seriousness is an important factor in the balancing exercise to be carried out when determining whether the interests of protection of personal life justify an interference with the freedom of expression, see Norwegian case-law reports ( Norsk Retstidende ( Rt. )) 2002 p. 764 on pp 774- 775. In accordance with the case-law of the European Court and the Norwegian Supreme Court a distinction ought to be made between statements of fact and value judgments, because only statements of fact may be susceptible to proof. Normally statements which may be understood to mean that a person is or may be suspected of a criminal offence must be considered to be statements of facts which need to be proven.", "(79) The respondents have argued that the impugned statement only concerns whether the unnamed 42 year-old ‘ is probably the most interesting among several previously convicted felons whose movements are now being checked by the police ’. The leader of the investigation has later confirmed that the applicant was the most interesting person on whom efforts were deployed at the beginning of the investigation. The statement is alleged to have been correct, and its publication is claimed not to be unlawful.", "(80) When one, as I do, has reached the conclusion that the newspaper ’ s reports and articles considered as a whole left the impression that [ the applicant ] could be a suspect in the case, the evidence must concern whether he has committed the crime he has been accused of. It is not sufficient that the newspaper gave an accurate description of the factual circumstances adduced to show that there was a basis for suspicion. As an exception to this general rule case law has accepted the publication of charges. Here the evidence is acceptable when it is proven that the reporting of the charge in itself is correct, see Rt. 199 9 p. 1742 ( Landåssaken ). There is no corresponding exception for reporting on suspicion.", "(81) In this case Fædrelandsvennen has not rendered a suspicion stated by others. The newspaper coverage and the articles mainly consist of reporting on the judgment from 1988, the relevant preventive supervision case [ sikringssak ] and the statements made by leaders of the investigation. It appears clearly that the applicant has been interrogated as a witness and that neither he nor anyone else is under investigation as a suspect. The most direct statement indicating suspicion is attenuated in its form in that [the applicant] according to the newspaper is ‘ probably the most interesting of several criminally convicted persons whose movements are now being checked by the police ’. His statements in an interview published on 24 May 2000 about his being completely innocent, has been published in the head line on top of the front page.", "(82) In balancing the competing interests in the concrete case I have with some doubt found that it was not unlawful for Fædrelandsvennen on 24 and 25 May 2000 to publish that [the applicant] was the most interesting of several convicted persons investigated by the police, even though this in the context may be perceived to mean that he was or could be a suspect. The monstrous sexual offences and consequent killings in Baneheia were of particularly great public interest throughout the country, especially in Kristiansand and in the Agder counties. The people in the vicinity around Baneheia and in the vicinity where [the applicant] lived, had a particular interest in receiving continuous and concrete information about the investigation.", "(83) In my opinion the journalist and the editor have not been negligent. The intense and extensive interest shown by the national news media directed against [the applicant] before Fædrelandsvennen ’ s own publishing, his own statements to the media and the public interest justified the publication of the information about [his] workplace and place of residence and the use of anonymous photos of his person. When considering the question of negligence, I also emphasize that the coverage and articles were balanced, that their main content consisted of reporting true factual information, and that the police underlined that no one was under suspicion and that the [applicant] ’ s view was presented clearly. I add that since this case presented itself at the early stage of the investigation, the newspaper had no cause to investigate further if [the applicant] could be the perpetrator. ... ”", "33. Mrs Justice Coward, whose opinion was endorsed in the main by the other judge of the minority, stated, amongst other:", "“(93) There was obviously public interest attached to the investigation in the Baneheia case. The nation was shocked, and it was a task for the media to inform of the crimes and the work of the police. In the High Court it was agreed that it must be allowed to impart an information that a previously convicted felon was in the police ’ s search light and had been subjected to a long interrogation - even though the reporting would make it possible to understand who this was for those who had special knowledge or for those who carried out investigations on their own. I too agree with that. The disagreement in the High Court concerned whether the further identification provided by Fædrelandsvennen - in particular by revealing the workplace and residence was justified.", "(94) In assessing the character of the allegation it is a point that this constituted an affirmation of suspicion, which when considering the seriousness is different from an accusation of being the perpetrator. But, on the other hand, the suspicion was related to particularly heinous crimes. The crimes aroused strong feelings of abhorrence and hatred in the population, and it is difficult not to think that it must have been awful to have been exposed to suspicion for having committed them. I agree with the High Court minority when it states that ‘ strong reasons for protecting the privacy militate for protecting the identity of an individual who for different reasons has come in the search light of the police in the investigation of criminal cases. This consideration is, not the least, important in serious criminal cases where great public interests are attached to clearing up the case ’. And precisely a person like [the applicant], who with his background more easily than others would be suspected, had a special need for the protection offered by the presumption of innocence.", "(95) I cannot see that it betters things, as stated by Fædrelandsvennen, that [the applicant] was given the opportunity to declare his innocence on the front page of the newspaper ’ s issue of 24 May 2000 : ‘ Convicted murderer : I am completely innocent ’. It emerges from this report that none of ‘ a not insignificant number of people ’ being checked in the case were under suspicion. However, neither this was likely to weaken the suspicion towards [the applicant] as the likely perpetrator. I agree with the High Court - all three justices - when it states:", "‘ Not in the least the High Court finds that the total search light directed against [the applicant] is important. He represents both the starting point and most of the reporting done by Fædrelandsvennen covering the Baneheia -case those days. Given the reluctance the press in accordance with the ethics of journalism usually show by not identifying individuals being in the police ’ s search light, this to a large extent must strengthen the ordinary reader ’ s impression of [the applicant] as being the most possible perpetrator. ’", "(96) I cannot see that the total reporting by Fædrelandsvennen should be considered balanced, even though the factual information taken apart had not been incorrect, [the applicant] had been given the opportunity to claiming his innocence and the police ’ s statement that no one was to be suspected had been referred to. When it comes to heinous crimes of such gravity as here, in my opinion the press should not be allowed to publish untrue suspicions against identifiable individuals, even though the coverage should otherwise be characterized as being balanced.", "(97) I add that [the applicant] was persecuted by assertive media people against whom he found it difficult to protect himself. That he at no point accepted to be identified, must be obvious.", "(98) The difference of opinion between the majority and the minority of the High Court was related to the significance of other media identifying [the applicant]. In the evening of 24 May 2000 TV2 showed a report where he was filmed from behind and somewhat from the side. On 25 May 2000 Dagbladet informed that he worked in a protected workplace in Kristiansand and lived in his brother ’ s cabin in Y at Z. The newspaper also showed a photo of him taken from behind. Fædrelandsvennen went the furthest in publishing identifying information about [the applicant] - in particular by revealing his workplace and residence, but besides this the articles in this most important district newspaper must have made it possible for more people to identify him than those who watch TV2 or read Dagbladet.", "(99) The High Court minority point to an important consideration in emphasising at the end stating the need for the individual to be protected from collective media pressure:", "‘ The minority also attaches considerable weight to the fact that the coverage in Faedrelandsvennen appeared as an extensive and independent contribution from the newspaper and that the damaging effect for [the applicant] and the problems caused for him must have been caused by the total pressure from the media coverage during a short and concentrated period of time where Fædrelandsvennen ’ s contribution was of particular significance. The minority is inclined to accept that [the applicant] had become ‘ free game ’ as a result of the fact that some media had identified him. Such a solution is not adequate for protecting each individual against libellous reporting in mass media and does not coincide with the independent responsibility each newspaper has in circumstances where judicial and ethical press norms may be under challenge due to a situation of competitiveness. ’", "(100) I concur with this, and conclude - in accordance with the vocabulary used by European Court - that a pressing need existed for interfering with the freedom of expression in the way of a reaction to the coverage by Fædrelandsvennen.", "(101) The conditions for compensation in accordance with section 3-6 of the Damage Compensation Act have been fulfilled. Since I am aware that I represent a minority, I see no reason to go into detail with regard to the amount of compensation. However, in view of Fædrelandsvennen ’ s pleadings I point to the fact the harm caused by the offence to a large extent must be objectified : Also people who are socially marginalised must enjoy effective protection against libellous allegations. Like the minority in the High Court, I vote for compensating [the applicant] with NOK 150, 00 0 from the newspaper and NOK 25, 000 from the editor. The contribution from the journalist was more peripheral, and she should not be ordered to pay compensation. ... ”", "D. Defamation proceedings brought by the applicant against TV2", "34. In October 2003 the applicant brought defamation proceedings against TV2 AS (Ltd.) before the Kristiansand City Court claiming compensation with regard to TV2 ’ s news coverage on 23 and 24 May 2000 of the Baneheia case. The City Court found for TV2 and rejected the applicant ’ s claims. On an appeal by the applicant, on 8 December 2006 the Agder High Court upheld the applicant ’ s claim that the news coverage constituted unlawful defamation and ordered the defendants to pay him NOK 250,000 in compensation for non-pecuniary damage and discontinued the case with regard to his claim for pecuniary damage. As regards the contents of the disputed broadcasts and their defamatory effect, the Agder High Court made similar findings in the TV2 case as made by the appellate courts in the present case. In finding the defamation unlawful it had regard to several factors, notably TV2 ’ s national as opposed to local media role, unlike that of Fædrelandsvennen, the potency of the televised medium, the rule of caution applicable to the press with regard to identification of person regarding coverage of early stages of criminal investigations and the fact that, although aware of an autopsy report made available on 24 May 2000 revealing that the murders had involved rape, TV2 had in the evening news of that date continued to focus on the applicant notwithstanding the fact that his 1988 criminal conviction had not concerned sexual offences. TV2 had also been the first medium to insinuate suspicion against the applicant and to identify him in its broadcasts and had taken the lead in this regard. On 19 February 2007 the Appeals Leave Committee of the Supreme Court refused TV2 leave to appeal.", "III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE", "37. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers ’ Deputies) contains the following principle of particular interest to the present case:", "“ Principle 8 - Protection of privacy in the context of on-going criminal proceedings", "The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "35. Conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Article 247 of which provides:", "“Any person who, by word or deed, behaves in a manner that is likely to harm another person ’ s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”", "A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“ rettsstridig ”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.", "36. For further specific information on the relevant national law, reference is made to paragraphs 41 to 45 and 47 of Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, ECHR 2007 ‑ ...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "38. The applicant complained that the unfavourable outcome before the Norwegian courts of his defamation suit against Fædrelandsvennen constituted a failure by the national authorities to protect his right to the presumption of innocence under Article 6 of the Convention, which as far as relevant reads:", "“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”", "A. The parties ’ submissions", "(1) The applicant", "39. The applicant emphasised that, despite the utmost importance of not prejudging him, as even pointed out by some of the neighbours in the disputed press coverage, the newspaper had exposed him as the most likely perpetrator of the crime and had thereby subjected him to prejudgment that was particularly damaging to his reputation.", "40. He argued that in criminal cases it was for the police, not for the press, to identify possible perpetrators. Only when a person had been formally charged was it permissible for the press to divulge information about suspicion, provided that the information about the charge had been presented correctly.", "41. The police had had the situation well under control. They had interviewed the applicant as a matter of routine and had considered him only as a witness. Had the police found a need to warn people in the neighbourhood, they would have done so. In any event, the newspaper was aware of the police ’ s presence in the area.", "42. The applicant stressed that publishing suspicion of serious crime might influence a trial court negatively and cause prejudice to judicial independence and the course of justice. As correctly pointed out by the minority of the Supreme Court, it should not be permissible for the press to publicise unfounded suspicion of aggravated crime, like here, against identifiable individuals.", "(2) The Government", "43. The Government disputed the applicant ’ s complaint under Article 6 § 2 of the Convention. They submitted that the outcome of the defamation proceedings before the Norwegian courts did not attract the application of Article 6 § 2 of its own and invited the Court to declare the complaint inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.", "44. In this regard, the Government argued that the right to the presumption of innocence embodied in Article 6 § 2 was a vertical provision protecting a person charged with a criminal offence vis-à -vis the national authorities. Between private parties, an accusation of criminal guilt could raise a legal issue of defamation but not a legal issue under Article 6 § 2. As the Court had stated in Allenet de Ribemont v. France ( 10 February 1995, § 36, Series A no. 308), the presumption of innocence guarantee was reserved for accusation of criminal guilt stemming from “public authorities”. The Government found no basis for the existence of a positive obligation under Article 6 § 2 engaging the responsibility of public authorities for the newspaper ’ s activities.", "45. Moreover, as was clear from the newspaper articles, the police did not at the time consider the applicant to be a suspect, but merely a witness. The police had not yet taken any such steps against him during the investigation phase or otherwise made any such indications of incriminating evidence against him as would suffice to consider the applicant as “charged” with a criminal offence within the meaning of Article 6 § 2 (see, inter alia, Serves v. France, 20 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI ).", "B. The Court ’ s assessment", "46. The Court observes that no public authority had “charged [the applicant] with a criminal offence”, in the Banehia case, within the meaning of Article 6 § 2 of the Convention (cf. Allenet de Ribemont, cited above, §§ 34-37; Kyriakides v. Cyprus, no. 39058/05, § 35, 16 October 2008 ). While the information concerning the applicant in relation to the investigation in the Baneheia case had in part been provided by the police, it was the coverage by Fædrelandsvennen on 24 and 25 May 2000, not the statements by the police, which was at the heart of the matter before the national courts. In any event, the disputed newspaper publications did not amount to an affirmation that he was guilty of the crimes in question. In the Court ’ s view, Article 6 § 2 was inapplicable to the matters complained of. Accordingly, this part of the application must be declared inadmissible as being incompatible ratione materiae under Article 35 §§ 3 and 4 with the provisions of the Convention.", "47. However, the conclusion above does not prevent the Court from taking into account the interests sought to be protected by Article 6 § 2 in the balancing exercise carried out below (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65).", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "48. With reference to the same facts as his complaint under Article 6 § 2 of the Convention, the applicant complained of a violation of his right to protection of reputation under Article 8 of the Convention. This article reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "49. The Government disputed the applicant ’ s complaint and requested the Court to declare it inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.", "A. Admissibility", "50. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "51. The applicant stressed that, according to established case-law, the safeguard afforded by Article 10 to journalists was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 102, ECHR 2004 ‑ XI ). Special grounds were required in order to free the media from their general obligation in this respect. Whilst no such grounds existed in the present instance, the newspaper had offered no evidence suggesting that the applicant was guilty and had made no efforts to investigate the matter of its own. The newspaper had erred grossly: A was innocent. Thus the majority of the Supreme Court had failed to apply the correct test.", "52. Moreover, the Supreme Court majority had deemed it acceptable that the newspaper invade the applicant ’ s privacy by publicising information about such details as the name of his work place, by publishing a photograph of him, taken from the side, while entering a bus on his way to work and another photo, taken from behind, depicting him walking home at a location close to his home.", "53. For the applicant, the consequences of the newspaper report had been enormous. He could not continue in his job and had to move and live in a tent elsewhere, isolated and scared away from society. Whilst there obviously was a pressing social need to protect the applicant ’ s interests the Supreme Court failed to provide such protection and had failed to strike a proper balance between his right to protection of reputation under Article 8 of the Convention and Fædrelandsvennen ’ s freedom of speech under Article 10.", "54. The newspaper should obviously have handled the applicant more carefully in its news reporting, considering that he in any event could most probably not have been the perpetrator. The Supreme Court ’ s majority had wrongly applied the Article 10 safeguard in favour of the newspaper in this case.", "55. The Government ’ s submission with reference to paragraphs 76, 81 and 83 (quoted at paragraph 32 above) of the Supreme Court ’ s judgment that the latter had relied on the public interest in the publication as a “special grounds” was shallow. It in reality meant that a person who was trampled down or who was most in need of protection by the rule of presumption of innocence should enjoy no effective protection. As pointed out above; when the police had no reason for issuing a warning against the applicant and simply treated him as a witness, it was certainly not for the press to play the role of police.", "56. More importantly, the Supreme Court should have considered that the newspaper did not handle adequately the information in the autopsy report which pointed away from the applicant. Whilst having referred to “monstrous sexual offences” in paragraph 82 of its judgment (quoted at paragraph 32 above), the Supreme Court had failed to consider that the applicant had never been involved in such crimes. The newspaper had clearly been negligent. The newspaper ’ s actions and the assessment made thereof by the Supreme Court thereof could not be regarded as complying with journalistic ethical standards laid down in the European Court ’ s case-law.", "57. It was incorrect as stated by the Supreme Court in paragraph 83 of its judgment that the newspaper articles had been “balanced”. While it was true that the 24 May 2000 issue had quoted the applicant on top of the front page saying “I am completely innocent”, by publishing this peculiar interview, covering almost the upper half of the front page, the newspaper had actually made things worse. It had contributed to arise more suspicion against the applicant, not less. By describing him in the ensuing text on the front page as the “most interesting” person interviewed by the police, the newspaper in reality did not create a “balance” but rather imbalance to the applicant ’ s detriment. Also, on this point he shared the view held by the Supreme Court minority (in paragraph 95 of the judgment quoted at paragraph 33 above) that the so-called balancing had not improved matters, agreeing with the High Court ’ s findings that the coverage had made the suspicion against him stronger, not weaker.", "(b) The Government", "58. The Government did not dispute that Article 8 was applicable in the present case but maintained that it had not been violated. In their view, the Supreme Court had struck a fair balance when protecting the two values guaranteed by the Convention which could come into conflict with each other in this type of cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to protection of reputation under Article 8. The Government thus concurred with the Supreme Court ’ s finding that the articles in Fædrelandsvennen had not been unlawful for the purposes of Articles 246 and 247 of the Criminal Code and that the applicant ’ s claim for non-pecuniary damages under section 3-6 of the Damage Compensation Act had accordingly been unfounded.", "59. The Government further pointed out that in its reasoning dealing with the issue under the Convention, the Supreme Court had rejected the applicant ’ s argument that a shift had taken place in recent Strasbourg case-law, suggesting that the Court had attached greater importance to the protection of reputation in the assessment of whether an interference with freedom of speech was necessary for the purposes of Article 10 § 2 of the Convention. In the Government ’ s opinion, nothing to this effect was to be found in recent jurisprudence. For example, in Pfeifer v. Austria ( no. 12556/03, § 37, ECHR 2007 ‑ ... ), the Court had emphasised that in striking a fair balance between the competing interests, the national authorities enjoyed a certain margin of appreciation.", "60. In its application of the principles in the Court ’ s case-law to the concrete circumstances of the case, the Supreme Court held that the impugned newspaper articles had concerned untrue, defamatory statements of fact, as they had left the ordinary reader with the impression that the applicant could be suspected of having committed the murders. On the facts, the Supreme Court noted the great public interest in the investigation of the rapes and murders of the two young girls and that it was clearly a matter of public interest for the readers of a local newspaper such as Fædrelandsvennen that a previously convicted killer, who had been the subject of security measures and who lived in the area, had been summoned by the police for questioning. The Supreme Court, having regard to the various factors stated in paragraphs 81 to 83 of its judgment, was satisfied that the impugned coverage had been presented in good faith with the requisite care and precautionary qualifications and was protected by Article 10 of the Convention.", "61. Moreover, the Government, drawing attention to the outcome of a parallel case brought by the applicant against TV2 in respect of its television coverage of the same matter, clearly illustrated that possible suspects in criminal cases with heavy media coverage were not “free game”, but that they - according to circumstances - could attract the protection of Article 8 even in cases of great public interest, where the general public may have a legitimate need for information. The distinction made by the national courts had been based on a thorough and careful review of the facts of each case.", "62. In the Government ’ s view, the difference of opinion between the majority and the minority of the Supreme Court in the present instance was one that clearly fell within the national margin of appreciation.", "2. Assessment by the Court", "(a) General principles", "63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person ’ s “ honour and reputation ”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61).", "64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007 ‑ ... ) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person ’ s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII).", "65. The question is whether the State has achieved a fair balance between the applicant ’ s “right to respect for his private life” under Article 8 and the newspaper ’ s right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI, with further references). In examining this question, the Court will have regard to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § § 68-71, ECHR 2004 ‑ XI ).", "66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant ’ s private life under Article 8 as opposed to that of safeguarding the newspaper ’ s freedom of expression under Article 10.", "(b) Application of these principles", "67. From the outset it is to be noted that the applicability of Article 8 to the case was undisputed and the Court sees no reason to hold otherwise. The issue is whether the respondent State had failed to fulfil its positive obligation under this provision to protect the applicant ’ s honour and reputation as part of the right to respect for private life.", "68. The Court observes that the disputed articles published by Fædrelandsvennen on 24 and 25 May 2000 were devoted to providing information about the preliminary police investigation into the murders, and in the latter article, also rape, of two young girls aged eight and ten respectively. In the news coverage under consideration, Fædrelandsvennen had stated that the applicant was “probably the most interesting of several convicted persons whose movements the police were now checking”. For the respondent newspaper, journalist and editor neither this statement nor any other elements in the news coverage contained an affirmation of suspicion against the applicant. However, the Supreme Court, agreeing with the High Court, found that the focusing on the applicant as a previously convicted knife killer, his presence in Baneheia when the criminal acts had been committed and the investigation of the applicant, must for an ordinary reader have been perceived as if he could be suspected of having committed the murders in question.", "69. The Court sees no reason to disagree with the national courts ’ finding that, for an ordinary reader, this must have been perceived as if the applicant could be a suspect in the case and their finding that the coverage was defamatory of him. In this connection the Court has taken note of the fact that inside the 24 May 2000 issue, a Chief Constable had been quoted as saying that there had been no suspects in the case and that all of the persons who had been summoned for questioning had had formal status as witnesses. Also, both on the front page and inside, it had rendered the applicant ’ s claim of innocence stated in an interview with the newspaper.", "70. Although the applicant had not been mentioned by name, the photographs and details of his places of work and residence had made it possible for persons who already knew him to identify him as a possible suspect of aggravated crimes of a particularly reprehensible and also sensitive (cf. White, cited above) character. While the news report consisted of imparting factual information about the investigation that was largely true, the way it was presented wrongly conveyed the impression that there was a factual basis justifying the view that the applicant could be considered a possible suspect.", "71. It is obvious that the crimes in question because of their particular nature and gravity were a matter of utmost concern to the national public generally and to the local public especially, as observed by the national courts (see paragraphs 82 of the Supreme Court ’ s judgment quoted at paragraph 32 above). Not only did the press have the task of imparting such information but the public also had a right to receive it. However, the Court does not consider that the serious public interest in the subject matter could constitute such a special ground as to justify the defamatory allegation against the applicant with the consequent harm done to him.", "72. The disputed media coverage was conducted in a manner which directly affected the applicant ’ s enjoyment of his right to respect for private live. As observed by the dissenting member of the Supreme Court, the applicant was persecuted by journalists against whom he found it difficult to protect himself. It appears that, in order to obtain his photographs and comments, the journalists followed the applicant in his footsteps inter alia on his way to his home and to his work place. The publications at issue occurred while the applicant, in a phase of rehabilitation and social reintegration after having finished serving a prison sentence and security measures for other and unrelated crimes committed in 1987, had a fixed abode and pursued gainful employment. After the publications he found himself unable to pursue his job and he had to leave his home and was driven into social exclusion.", "73. There can be little doubt that the disputed publication entailed a particularly grievous prejudice to the applicant ’ s honour and reputation that was especially harmful to his moral and psychological integrity and to his private life (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media on relation to criminal proceedings quoted at paragraph 37 above).", "74. The Court is mindful of the careful and thorough review carried out by the national courts of the various factors that are relevant under the Convention. However, there was not in the Court ’ s view a reasonable relationship of proportionality between the interests relied on by the domestic courts in safeguarding Fædrelandsvennen ’ freedom of expression and those of the applicant in having his honour, reputation and privacy protected. The Court is therefore not satisfied that the national courts struck a fair balance between the newspaper ’ s freedom of expression under Article 10 and the applicant ’ s right to respect for his private life under Article 8, notwithstanding the wide margin of appreciation available to the national authorities.", "75. Accordingly, there has been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "76. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "77. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage, on account of the hardship he had suffered following the news coverage by Fædrelandsvennen. It had delayed his reintegration into society and he had still not fully recuperated. He requested the Court to take into account that as a result of the media stir he had lost his job and had started to live in a tent, being scared away from society. Whilst he had not provided documentary evidence for his monetary losses, he requested that such losses have a bearing on the assessment of the size of the award for non-pecuniary damage.", "78. The Government were of the opinion that the amount claimed was excessive.", "79. The Court, assisted by the size of the award proposed by the dissenting members of the Supreme Court (see paragraph 101 of the dissenting opinion, quoted at paragraph 33 above) and making an assessment on an equitable basis, awards the applicant EUR 19,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "80. The applicant also claimed (a) NOK 388, 471.61 (NOK 1,180,630.12 less the NOK 792,158.51 granted in free legal aid by the national legal aid authority) for the costs and expenses incurred before the domestic courts. (b) Moreover, he claimed NOK 150,000 (approximately EUR 16,000) (inclusive of value added tax) for legal costs incurred in the Strasbourg proceedings.", "81. As to item (a), the Government were of the view that awarding any sums beyond that granted in national legal aid was not warranted in the circumstances. Item (b) appeared excessive in the absence of any further specification.", "82. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 12,500 for the proceedings before the Court.", "C. Default interest", "83. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant is a Chilean national who was born in 1968 and lives in Bergen, Norway. He has worked inter alia as a kindergarten assistant for about 8 years.", "7. The applicant has two sons L. and A. (born respectively on 11 June 1994 and 24 February 1996 ) with Ms H.T., a Norwegian national, with whom he entered into a relationship in 1992/1993 and cohabited from mid 1994 until the end of that year. In 1995 (before A. was born) the applicant and H.T. reached an agreement whereby he had certain access rights to L.", "8. Since around 1997 he has cohabited with Ms G.A.D. and her adolescent son.", "9. A dispute arose as to the applicant's access to L. and A. On 9 June 1997 H.T. reported him to the police for allegedly having sexually abused L. She based her allegations on statements made by L. The mother gave statements to the police and L. was interviewed by a judge without anything significant emerging in the case. In July 1998 the State Prosecutor discontinued the investigation, which decision the Director of Public Prosecutions confirmed on appeal in October 1998.", "10. In the year 2000 the applicant brought judicial proceedings before the Bergen City Court ( byrett ), claiming a right of access to his two sons (sections 44 and 44A of the Children Act 1981). On 7 December 2000 the City Court refused a request by H.T. to have an expert witness appointed.", "11. By a judgment of 18 April 2001 the City Court granted the applicant access every other week-end and for approximately half of the holiday periods and devised a plan for stepping up access. To give the above immediate effect, the City Court issued an interlocutory order.", "In reaching the above conclusions, the City Court rejected the accusations made by the boys'mother that the applicant had sexually abused L. It observed that according to H.T. there were only 10 occasions on which the applicant had been on his own with his son, namely in that they had been in a room with the door shut in H.T.'s apartment. In her view it was most probable that the abuse had occurred on these occasions, though she did not have concrete evidence to this effect. The City Court found it excluded on the evidence before it that the applicant had sexually abused L. It attached decisive weight to the fact that the applicant's access to his son had taken place each time under the supervision of at least one other person and that on the 10 occasions on which he and the son had been on their own in the latter's room, it was for a very short time and in a situation where the child's mother could have entered the room at any moment. The visits in question took place more than a year and a half ago - a very long period for a small child - before April 1997 when the son had made the statements that aroused the mother's suspicions that the applicant had sexually abused L. Finally, the City Court had regard to the fact that the physiological and psychiatric examinations carried out did not support the allegation that abuse had occurred. It found that the allegation had been the result of manipulation and fabrication by the mother as part of a strategy to obstruct the applicant's access. There was reason to assume that this had already had damaging effects on L., who had stated that he did not wish to live or to be with his father. The boy had become a go-between in a conflict between adults. The City Court stated that the applicant was more suitable than the mother to assume the daily care.", "12. On 10 October 2001 H.T.'s lawyer lodged a disciplinary complaint against the judge who had heard the case before the City Court for having acted with prejudice against his client in expressing distrust and treating her with disrespect during her testimony. The judge was imposed a mild reprimand by the Ministry of Justice, which found that there were grounds for criticising his conduct of the proceedings.", "13. H.T. appealed against the City Court's judgment and interlocutory injunction to Gulating High Court ( lagmannsrett ), requesting in the main that the applicant be refused a right of access to the children. She referred inter alia to the fact that the court appointed expert considered that L's strong negative attitude to his father was consistent with abuse having taken place. The applicant, denying that any abuse had occurred, requested the High Court to reject her appeal.", "14. By a judgment of 27 September 2002, the High Court overturned the City Court's judgment and refused the applicant access to his two sons, inter alia after obtaining an expert report from a court appointed psychologist, dated 2 September 2002, and hearing evidence from the latter. It also had regard to a report of 11 September 2001 by a psychologist who had been counselling the boy at the mother's initiative and the psychologist's oral evidence to the court.", "15. The High Court noted that from the psychologist's report of 2 September 2002 it emerged that the boy had felt great anxiety about the idea of meeting his father (he would kill himself rather than see his father); L. was unable to describe the reasons but his statements seemed founded on actual experience. Any access should be established gradually. Forcing the boy to have contact would be psychologically damaging.", "16. The High Court observed that the applicant and L. met 23 times in 1996, 8 times in both 1997 and 1998, 3 times in 1999 and that no access had taken place during the last three years (since 11 August 1999 ). It did not consider that the mother had sabotaged access although it understood that the fact that access had to take place under supervision by her sister or her father had made it difficult for the applicant to exercise access.", "17. The High Court's judgment included the following reasoning :", "“Two arguments have been made against the father being granted a right of access.", "Firstly, it is argued that the father has subjected [L.] to sexual assault. There is a complaint to the police dated 9 June 1997 from which it appears that an investigation of the case was initiated. The mother made statements to the police on 17 June and 18 December 1997, and there was also an interview of [L.] by a judge without anything of significance for the case coming to light. According to information presented, the case was dropped by the public prosecutor. This decision was appealed to the Director of Public Prosecutions on 22 October 1998 but the public prosecutor's decision was not reversed. The fact that there was insufficient evidence in the criminal case is, however, not decisive in this case, see Rt ( [ Norsk Retstidende ( Supreme Court Reports )] - 1989-320. It is further assumed that in a case involving minor children, no risk whatsoever may be taken in such circumstances, also concerning the issue of access rights, see Rt – 1994-940. In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.", "Secondly, it is contended that the implementation of access rights vis-à-vis the father is impossible in view of the fact that [L.] is opposed to this. In light of the information available, the High Court assumes that [L.] is opposed to having access to his father, which is to be accorded weight pursuant to section 31 of the Children Act. Nevertheless, the implementation of access may not, in principle, be made dependent on the child not being opposed to being with his father. This question will depend on the concrete circumstances.", "...", "According to the report, the boy is unable to describe why he has such great anxiety about meeting his father. [ Psychologist O. ] considers the information he has obtained to be an expression of the boy's actual experiences. The report further states that if contact between the father and the boy is to be established, this must take place gradually over a longer period of time and in such a manner that [the child welfare services ] can constantly monitor how this develops. If [L.]'s strong anxiety is maintained, forced contact is at present deemed to constitute a psychological assault on the boy, according to the report. [ Psychologist O. ] has given testimony before the High Court, which in its essentials concords with the aforementioned report. According to [ Psychologist O .], [L.] has stated that he would not visit his father even in the presence of a third party, his mother or someone else.", "In his report, the expert states inter alia the following:", "' On the whole [L.] has a good level of functioning, though everything having to do with his father is an obviously vulnerable and difficult point for him. My own impression from an interview with [L.] accords well with what [Psychologist O.] has described. [L.] indicates with his entire being both in the interview and afterwards that this is a very uncomfortable and difficult topic.'", "The expert evaluated three alternative resolutions for the access issue. The first alternative is an ordinary access arrangement between the father and the boys. The expert concluded that it is both impossible and indefensible to go straight to such an arrangement. He refers to the fact that [L.]'s aversion and emotional reactions to contact with his father are so strong that such an arrangement could not be started without strong physical coercive measures. Furthermore, he refers to the fact that [L.] has made serious threats about what he would do, namely take his own life. The expert also pointed to the strain this would inflict on [L.] and that this may jeopardise his further development. This would, in addition, inflict substantial strains on the mother. As the second alternative the expert considered a limited access arrangement, with supervision, possibly with the aim of increasing it to ordinary access. The expert pointed out that such a process may involve relatively high human (and financial) costs and that it would be a stressful process for [L.] and the rest of the family. Furthermore, it was noted that the outcome may be uncertain, since neither the mother nor [L.] will, at the outset, be very motivated to attaining concrete results in the form of contact with the father. The expert concluded that this is a possibility, but that it would require support by both parties and having sufficient resources in and around the family at their disposal. He also pointed out that the chances of failing abysmally would be present. The third alternative considered is no access at all between the father and the boys. To justify such a solution, the expert referred to the necessity of safeguarding the good progress the boys are making and of sparing them, especially [L.], from further uncertainty and conflicts connected with the issue of access.", "The expert did not reach any unambiguous conclusion in his report, except from finding that an ordinary access arrangement appears to be quite impossible to implement. As far as the other alternatives are concerned, he has kept the options more open. In his testimony before the court and after having been present during the appeal hearing, the expert expressed the view that he strongly favours that there should be no access between the father and the boys. In addition to [L.]'s clearly expressed unwillingness to have access to his father, the expert referred to the difficult situation that the family and [L.] in particular have been in over several years. He further referred to the fact that the mother was the sole provider for the children, and that she and the family had reached their'limit of tolerance'. It is also the understanding of the High Court that the expert deems the costs of a supervised arrangement to be too high and the benefits to be too uncertain for the expert to have been able to recommend access under supervision as an alternative.", "The High Court agrees that an ordinary access arrangement would not be an acceptable alternative, but has evaluated in particular whether an arrangement with supervised access would be possible. Like the expert, the High Court has concluded that such an arrangement would be disproportionately demanding and that it presumably may be difficult to find persons with the necessary competence who are willing to subject themselves to such a time consuming process as is in question here. The High Court also agrees with the expert that the strain that such a process will necessarily inflict on the family must also be considered, especially since the mother has sole care of the children. On the basis of its impressions during the hearing, the High Court agrees with the expert that the'tolerance limit'for whatever additional strains that can be inflicted appears to have been reached. Even if neither the [Psychologist O .] nor the expert appears to have been able to clarify the reasons for [L.]'s strong objections to having contact with his father, this must, on the basis of the circumstances of the case, be accorded substantial weight in the decision. In view of this, there would in the view of the High Court be an not unappreciable risk that the boy's development may be directly jeopardised by having to go through such a process that is under discussion here. In addition, considerable flexibility would be required of both parties, which, on the basis of the High Court's impressions from the hearing, is uncertain, on the part of the mother, but especially on the part of the father.", "Despite the fact that ..., a refusal to grant access may be justified only in very special circumstances, the High Court has concluded that there should be no access in this case since, on the basis of an overall assessment, this would not be in the best interest of the children. Even though the issue of access is at the outset to be considered separately with regard to each of the boys and even though it is assumed that [A.] does not have the same antagonistic relationship to his father as [L.], the High Court finds no reason to grant access with regard to [A.] as well. As the High Court understands the expert, it would cause unpleasant tensions within the family if only one of the children were to have access and that such an arrangement was not advisable, something with which the High Court agrees. Given the strains that the family has been under over several years, in the High Court's view, it is now important that peace prevails in this matter.", "Having reached this conclusion, the High Court does not find it necessary to establish a provisional arrangement in respect of the access issue. ”", "18. The High Court Judgment contained the following unanimous conclusion regarding the substantive questions:", "“ [The applicant] is not granted a right of access to [L.], born on *,*, 1994, and [A.], born on *,*, 1996. “", "19. The applicant appealed against the High Court's judgment as a whole, asking primarily that it be quashed and in the alternative that he be granted a right of access to his children. He challenged the High Court's procedure, namely its omission to deal with the interim order by the City Court.", "He moreover appealed against the High Court's assessment of the evidence, notably its reasoning regarding the allegations on sexual abuse, including the following passage, which in his view was “curious”.", "“In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [ L.'s ] strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.”", "The applicant submitted that in the light of the evidence it was hard to understand the High Court's conclusion on sexual abuse, even more so when it was stated in the judgment that it “has not found it necessary for its decision to go further into or take a stance on this ”. In the applicant's view, this was obviously an error; should a judge find that there were many elements to indicate that sexual abuse had occurred, it was evident that this conviction would also have an effect on a decision regarding access for the parent found to be a probable abuser. The applicant further disputed the lawfulness of the High Court's rejection of any access rights, which decision could not be reconciled with the rule that the best interests of the child should prevail. In the applicant's view, L's horror picture of his father should be removed by arranging for access. This was a clear case of the so-called Parental Alienation Syndrome, with clear hatred, fear and anxiety, unlike the ambivalence shown by children who have been exposed to actual abuse.", "20. On 20 December 2002, the Appeals Selection Committee of the Supreme Court refused the applicant leave to appeal.", "21. The applicant has submitted a medical certificate dated 7 June 2003 by Dr R.K., which stated:", "“I the undersigned have known [the applicant] since December 2000.", "He has had a very tough time psychologically during the period since the judgment. He feels that he has been unjustifiably held liable of sexual abuse against his son and feels powerless in the system. He has been very depressed lately. He is struggling with problems of sleeplessness, bad appetite and loss of weight. He is isolating himself. At times he has had suicidal thoughts. This has adversely affected his family life and members of his family have had a particularly difficult time during the past six months.”", "22. The applicant has moreover filed a statement by Dr H.V., Psychiatrist, of 4 September 2006, which concludes:", "“It is highly probable that [the applicant] has developed symptoms that are compatible with Post Traumatic Stress Disorder after what he had experienced in Chile. This has been further fortified by a situation combining anxiety and depression in the form of an adaptation disturbance as a result of his fight to get access to his children, especially when the court deprived him of his right of access.", "He presents a relatively high level of pressure from suffering but which he nevertheless manages to master satisfactorily. He receives regular treatment by a psychologist and medical treatment.”" ]

[ "II. RELEVANT DOMESTIC LAW", "23. At the time of the national courts'consideration of the present case, the right of access between a parent and a child was governed by sections 44 and 44A of the Children Act 1981 ( Lov om barn og foreldre ( barnelova )).", "Under section 44 the child had a right of access to both parents, even if they lived apart, and the parents had mutual responsibility for implementing the right of access. Under section 44A the parent with whom the child did not live had a right of access to the child unless otherwise agreed or determined. The provision contained more detailed rules on the extent of access, its implementation and the procedure. It provided that decisions should first and foremost be based on what was best for the child.", "24. Provisions governing the contents of judgments in civil proceedings may be found in Chapter 12 of the 1912 Code of Civil Procedure ( tvistemålsloven ). In so far as relevant Article 144 provides:", "“A judgment shall contain:", "...", "3. A brief presentation of the object of the case and of the parties'submissions; when appropriate, reference may be made to written pleadings filed in the case, or to entries in the court record; if so, the material referred to shall be included in transcripts of the judgment;", "4. Reasoning for the decision; they shall decisively and exhaustively indicate the facts of the case on which the court bases its decision", "5. An operative part.", "... .”", "THE LAW", "I. THE SCOPE OF THE ISSUES BEFORE THE COURT", "25. In his observations at the merits stage, the applicant firstly reverted to his complaint under Article 6 § 2 of the Convention and requested the Court to reconsider its decision of 1 June 2006 declaring this part of the application inadmissible on grounds of non-exhaustion. It was the fault of the lawyer who had represented him before the national courts that this complaint had not been pursued before the Supreme Court.", "26. However, the above decision is final and the Court finds that no reasons have been brought forward for it to examine whether it should be re-opened.", "27. Secondly the applicant complained about lack of impartiality of the High Court on account of the participation of a judge who had been divorced from a brother of the judge who had dealt with the case in the City Court.", "28. However, the Court observes that this is a new complaint, which is not covered by its decision on admissibility and therefore falls outside the ambit of the case.", "29. In the light of the above, the Court will confine its examination to the applicant's complaints under Articles 6 § 1 and 8 of the Convention, declared admissible on 1 June 2006, concerning the impugned reasoning in the High Court's judgment of 27 September 2002.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "30. Article 8 of the Convention reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Arguments of the parties", "1. The applicant", "31. The applicant maintained that the relevant passage of the High Court's judgment amounted to an affirmation of suspicion that he had committed sexual abuse. Referring to a medical statement of 7 June 2003 (see paragraph 2 1 above) the applicant submitted that, having been labelled a sexual abuser, he had suffered serious psychological and social problems. He also invoked a psychiatrist's statement of 4 September 2006 (see paragraph 2 2 above). The impugned passage entailed an unjustified interference with his right to respect for private and family life in violation of Article 8 of the Convention.", "2. The Government", "32. The Government pointed out that that reference to the allegation and the evidence adduced in this respect was due to the fact that this was the main argument presented by the mother. They emphasised that the disputed passage did not determine the applicant's civil rights or determine the question of criminal guilt. The High Court's decision that it was not necessary to explore whether he had assaulted his son did therefore not in any respect affect the applicant's rights under Article 8. The question of abuse did not affect the outcome of the proceedings in question. Any such assessment would have been superfluous, since the other circumstances in the case were more than sufficient for the Court to determine that access should not be granted. Article 8 was therefore not applicable to the obiter dictum at issue.", "B. Assessment by the Court", "33. The Court does not find that the issue under Article 8 of the Convention can, as suggested by the Government, be analysed solely with reference to the outcome of the case before the High Court. Even though the impugned passage in the High Court's judgment of 27 September 2002 had no bearing on its conclusion with regard to the applicant's claim of access rights in respect of his sons, it nonetheless conveyed information to the effect that the High Court, having regard to the state of the evidence, held a suspicion that the applicant had sexually abused L. It not only related to the most intimate aspects of the applicant's private life but it also suggested that he might have engaged in highly reprehensible conduct vis-à-vis a person to whom he had family ties, his son. The information was moreover capable of adversely affecting his enjoyment of private and family life, in the ordinary sense of these terms. Therefore, in the Court's view, the facts underlying the applicant's complaint fell within the scope of Article 8 of the Convention which provision is therefore applicable to the matter at hand.", "34. Furthermore, the Court finds that the inclusion by the High Court of the disputed statement as a part of its own reasoning in the judgment constituted an interference with the applicant's right to respect for his private and family life as guaranteed by Article 8 § 1 of the Convention. It will therefore have to consider whether the interference was justified under Article 8 § 2.", "35. In this regard the Court notes that it is undisputed that the interference was “in accordance with the law” and the Court finds no reason to hold otherwise.", "36. As to the question of whether the inclusion of the statement pursued any of the legitimate aims enumerated in Article 8 § 2, the Court has taken note of the Government's explanation, made in the context of Article 6 § 1, that it was included because the abuse argument had been the mother's principal submission, though it had not affected the High Court's decision. The Court has further noted the applicant's submission, in connection with his complaint under Article 6 § 2 (declared inadmissible on 1 June 2006), that the relevant passage amounted to an affirmation of suspicion that he had committed sexual abuse and that, despite the High Court's statement that this matter had not been decisive for the outcome, it was hard to believe that this was not the case.", "The Court for its part finds no reason to doubt that the impugned statement had been prompted by H.T.'s principal submission and the applicant's objection thereto, that he had sexually abused L. The Court is prepared to accept that when the High Court touched upon this matter in its reasoning concerning the applicant's request to be granted a right of access to the children, it was in the pursuit of one or more of the legitimate aims enumerated in Article 8 § 2, notably for the protection of the rights and freedoms of others.", "37. However, turning to the next criterion in Article 8 § 2, the one of necessity, it is not apparent to the Court why the High Court, in the first part of the impugned statement, held:", "“In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred.”", "when in the second part it went on to say:", "“The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.”", "It thus appears that, without it serving any purpose for its resolution of the case, the High Court took judicial notice of the evidence before it and affirmed on this basis a suspicion of its own that the applicant had committed a serious crime, sexual abuse against one of his sons. No cogent reasons have come to light as to why the High Court in part dealt with, in part omitted to deal with the issue of sexual abuse. In the Court's opinion, the national court should either have disposed of the issue, with all that means in terms of evidentiary assessment and reasoning, or have left it on the side.", "38. Furthermore, the Court observes that the above portrayal of the applicant's conduct in an authoritative judicial ruling was likely to carry great significance by the way it stigmatised him and was capable of having a major impact on his personal situation as well as his honour and reputation. Indeed, as it appears from the medical certificate of 3 June 2003, the statement had harmed him both psychologically and physically, had had a stifling effect on his social life and had prejudiced his family life. Despite its character and potentially damaging effects on his enjoyment of private and family life, the inclusion of the said passage in the High Court's judgment was not supported by any cogent reasons.", "39. In the light of the above, the Court finds that the interference with the applicant's right to respect for his private and family occasioned by the impugned passage in the High Court's judgment, was not sufficiently justified in the circumstances and, notwithstanding the national court's margin of appreciation in such matters, was disproportionate to the legitimate aims pursued. Accordingly, the contested part of the High Court's judgment gave rise to a violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "40. Article 6 § 1 of the Convention, in so far as is relevant, reads:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”", "A. Arguments of the parties", "1. The applicant", "41. Relying on the above provision, the applicant complained about the way in which he had been portrayed in the High Court's judgment and its assessment of the evidence in this respect. He accepted that, in deciding on parental access to a child, a court should be able to consider the validity of an accusation that the parent concerned had sexually abused the child. However, he submitted that the High Court had pointed to sexual abuse whilst at the same time refraining from making a real assessment of the evidence and taking a stance on this matter. The impugned statement had caused him considerable moral injury and suffering and prejudice to his private and family life.", "2. The Government", "42. The Government argued that the disputed passage in the High Court's judgment did not involve the determination of a civil right within the meaning of Article 6 § 1 of the Convention. As clearly stated in the judgment, the High Court did not find it necessary to determine whether abuse had occurred. The outcome of the case depended solely on other elements and it was therefore not necessary to assess the question of abuse. The disputed passage was merely an obiter dictum. Article 6 § 1 was therefore not applicable to the said passage alone.", "43. The sole civil right determined by the High Court concerned the applicant's right to access to his children. To assess whether the reasoning was adequate for the purposes of Article 6 § 1 in this respect, the Court ought to consider the judgment as a whole. The reasons given for not granting the applicant access were highly detailed, both with regard to fact and law. Although the mother had claimed before the High Court that the applicant had assaulted the oldest child, the sole question before the High Court was whether the applicant should be granted access to the children. Based on the evidence presented, the testimonies of the two parties and five witnesses and the statements from the court appointed expert, it was clear to the High Court that the applicant should not be granted access to the children irrespective of whether he had abused the oldest child.", "The High Court was therefore in no respect obliged to address the issue of abuse. Its reference to the allegation and the evidence adduced in this respect was due to the fact that this was the main argument presented by the mother. However, it was nonetheless explicitly clear from the judgment that the allegations of abuse did not affect the High Court's decision not to grant the applicant access to the children. Thus, there was no need to give reasons with regard to this factual accusation by the mother.", "44. In substance, the applicant argued that the High Court should have determined whether he had abused the child or should not have commented on the issue at all. If such an argument were to prevail, this would entail that national courts in the Member States could not give obiter dicta without also in this respect giving full reasons according to Article 6 § 1. This would be a severe break with the traditional view of the right to give obiter dicta, and even more so in this case since the disputed passage did not determine a civil right according to Article 6 § 1.", "45. In the view of the Government, the rationale for the requirement in Article 6 § 1 that lower courts give reasons, namely to enable the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001 ), did not apply to obiter dicta. All in all, under existing case-law, the national courts could only be obliged to indicate the grounds on which they based their decision (see, inter alia, Hadjianastassiou v. Greece, judgment of 16 December 1992, Series A no. 252, p. 16, § 33 ). An explicit statement in a judgment that the court did not find it necessary to conclude on a factual argument presented by one of the parties could thus not violate the obligation to give adequate reasons.", "B. Assessment by the Court", "1. Applicability of Article 6 § 1", "46. The Court notes that the Government do not seem to contest the applicability of Article 6 § 1 to the proceedings in which the national courts determined the applicant's claim for a right of access to his two sons. The Court for its part is satisfied that the relevant proceedings concerned a “right” that was arguably recognised under national law, namely under sections 44 and 44A of the Children Act 1981, in their respective versions as in force at the material time. Moreover, the dispute was genuine and serious; it related not only to the actual existence of a right but also to its scope and the manner of its exercise. The result of the proceedings was directly decisive for the right in question which, moreover, was “civil” in character. Thus, having regard to its own case-law ( see, for instance, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 32- 35, § § 72-79; Zander v. Sweden, judgment of 25 November 1993, Series A no. 279-B, and Kerojärvi v. Finland, judgment of 19 July 1995, Series A no. 322; see also more recent judgments, where the applicability of Article 6 § 1 was undisputed: Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, pp. 38-39, § § 88-90; Olsson v. Sweden (no. 2), judgment of 27 November 1992, Series A no. 250, pp. 37-40, § § 95107; Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996 ‑ III, pp. 1010-11, § 87-88; Görgülü v. Germany, no. 74969/01, § 56-60, 26 February 2004; Bianchi v. Switzerland, no. 7548/04, § § 101-115, 22 June 2006 ), the Court finds that Article 6 § 1 was applicable to the proceedings in question.", "47. Meanwhile, the Government argued that, because the impugned passage in the High Court's judgment of 27 September 2002 was an obiter dictum, the latter did not involve the determination of a dispute attracting the applicability of Article 6 § 1 to the matter at hand. However, the Court is unable to accept this argument. Although the statement in question may not have had a bearing on the outcome, it was nonetheless closely related to the issue to be determined by the High Court. The Court is of the view that Article 6 § 1 was applicable to the proceedings as a whole, including to the reasons stated by the High Court in its judgment.", "48. In sum, Article 6 § 1 was applicable to the subject-matter of the applicant's complaint.", "2. Compliance with Article 6 § 1", "49. Turning to the question of compliance the Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal an appellate court may, in principle, simply endorse the reasons for the lower court's decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2930, § § 59 and 60). A lower court or authority in turn must give such reasons as to enable the parties to make effective use of any existing right of appeal (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001).", "50. The Court sees no reason to doubt that the High Court's judgment provided reasons that must be deemed sufficiently detailed for its conclusion that the deprivation of access was on balance justified by the children's best interest.", "51. However, the problem in the present instance is rather one of excess of reasoning on a matter that was of a particularly sensitive nature and of paramount importance for all the persons concerned. The Court, having regard to its findings above in respect of Article 8 of the Convention, does not find it necessary to carry out a separate examination in relation to Article 6 § 1 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "52. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "53. The applicant sought no compensation for pecuniary damage but claimed an amount, not exceeding 1,000,000 Norwegian kroner (“NOK”, approximately 123,650 euros – “EUR”), to be determined by the Court according to its own discretion.", "54. The Government did not offer any comments on the above claim.", "55. The Court, having regard to the medical evidence adduced (see paragraphs 2 1 -2 2 above), accepts that the applicant must have suffered some non-pecuniary damage as a result of the matter found to constitute violations of the Convention. Making an assessment on an equitable basis it awards the applicant EUR 7,000.", "B. Costs and expenses", "56. The applicant further sought the reimbursement of legal costs and expenses, totalling NOK 148,107.75, in respect of the following items:", "(a) NOK 125,781.25 (approximately EUR 15,500 ) for his lawyer's work (125 hours at a rate of NOK 805 per hour, plus 25% value added tax- “VAT”) in the proceedings before the Court;", "(b) NOK 18,489 (approximately EUR 2,300) which he had reimbursed to the Norwegian legal aid authorities in respect of legal aid received in the national proceedings;", "(c) NOK 3,475 for medical expenses;", "(d) NOK 3,622.50 for a psychiatric opinion in connection with his application to the Court.", "57. As regards item (a) the Government were of the view that the number of hours claimed was excessive and should be reduced by 50%. As to items (b), (c) and (d) they did not make any comments.", "58. According to the Court's case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. As regards item (a) the Court notes that only parts of the pleadings of the applicant's lawyer related to the complaints in respect of which the Court has found violations of the Convention. It finds it reasonable to award EUR 7,500 in respect of this item. As to item (b), the Court is satisfied that parts of these costs were necessarily incurred in order to prevent or obtain redress for the matter found to constitute violations of the Convention and awards EUR 1,000. As to items (c) and (d) (altogether around EUR 865), the Court notes that the former item was substantiated in part whereas the latter item was substantiated in full; it finds it reasonable to award EUR 700 for these two items.", "C. Default interest", "59. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1948 and lives in Tartu.", "A. Historical background", "6. Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006 ). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005 ‑ XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006).", "7. After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) and the Constitution of the Republic of Estonia Implementation Act ( Eesti Vabariigi põhiseaduse rakendamise seadus ) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience ( süümevanne ) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act ( Seadus süümevande andmise korra kohta ).", "8. In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value.", "9. On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States ’ Security and Intelligence Authorities which Have Operated in Estonia Act ( Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus ) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question.", "10. On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision.", "11. As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue.", "12. On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service ( Kaitsepolitseiamet ). Information about such persons ’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995.", "13. According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB.", "14. On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual ’ s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned.", "15. On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act ( Okupatsioonirežiimide poolt represseeritud isiku seadus ) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question.", "B. Publication of information about the applicant ’ s employment by the KGB", "16. From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security.", "17. On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice.", "18. According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant ’ s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong.", "19. On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows:", "“ANNOUNCEMENTS OF THE ESTONIAN INTERNAL SECURITY SERVICEabout persons who have served in or co-operated with security organisations or intelligence or counterintelligence organisations of armed forces of States which have occupied Estonia", "Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons.", "...", "Announcement no. 695 of 27.02.2004", "MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver", "1. Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989", "2. Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991”", "20. In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa .”", "21. The applicant raised the issue with the Chancellor of Justice ( Õiguskantsler ) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person ’ s place of employment at the time of the publication of the announcement was also made public.", "22. The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice.", "23. After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public.", "C. Court proceedings initiated by the applicant", "24. On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier ( okupant ) and an informant ( koputaja ) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him.", "25. At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked.", "26. By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant ’ s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant ’ s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with.", "27. The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa ” and, thus, the notion “former” ( endine ) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” ( okupant ) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant ’ s rights.", "28. The Administrative Court found that the applicant ’ s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful.", "29. The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR.", "30. The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State.", "31. By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person ’ s fundamental rights caused by the acts of third parties as the person ’ s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution.", "32. The Court of Appeal found as follows:", "“10. ... The Chancellor of Justice established in his proceedings that according to the defendant ’ s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations ’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].”", "33. In respect of the applicant ’ s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant ’ s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names.", "34. On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant.", "i. demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;", "ii. decentralisation, especially at local and regional levels and within state institutions;", "iii. demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society;", "iv. debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens.", "6. This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one ’ s actions.", "7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.", "8. The Assembly recommends that the prosecution of individual crimes go hand-in-hand with the rehabilitation of people convicted of \"crimes\" which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force.", "9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.", "...", "11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.", "12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.", "13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process ... ”", "42. On 25 January 2006 the PACE adopted Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes. It reads, in so far as relevant, as follows:", "“ 2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.", "3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.", "...", "5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).", "6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.", "7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.", "8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.", "...", "12. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes.", "13. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.", "14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.”", "I. whereas from the outset European integration has been a response to the suffering inflicted by two world wars and the Nazi tyranny that led to the Holocaust and to the expansion of totalitarian and undemocratic Communist regimes in Central and Eastern Europe, as well as a way of overcoming deep divisions and hostility in Europe through cooperation and integration and of ending war and securing democracy in Europe,", "J. whereas the process of European integration has been successful and has now led to a European Union that encompasses the countries of Central and Eastern Europe which lived under Communist regimes from the end of World War II until the early 1990s, and whereas the earlier accessions of Greece, Spain and Portugal, which suffered under long ‑ lasting fascist regimes, helped secure democracy in the south of Europe,", "K. whereas Europe will not be united unless it is able to form a common view of its history, recognises Nazism, Stalinism and fascist and Communist regimes as a common legacy and brings about an honest and thorough debate on their crimes in the past century,", "...", "3. Underlines the importance of keeping the memories of the past alive, because there can be no reconciliation without truth and remembrance; reconfirms its united stand against all totalitarian rule from whatever ideological background;", "4. Recalls that the most recent crimes against humanity and acts of genocide in Europe were still taking place in July 1995 and that constant vigilance is needed to fight undemocratic, xenophobic, authoritarian and totalitarian ideas and tendencies;", "5. Underlines that, in order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe ’ s troubled past must be supported, as there can be no reconciliation without remembrance;", "6. Regrets that, 20 years after the collapse of the Communist dictatorships in Central and Eastern Europe, access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies, although steps must be taken to ensure that this process is not abused for political purposes;", "...", "9. Calls on the Commission and the Member States to make further efforts to strengthen the teaching of European history and to underline the historic achievement of European integration and the stark contrast between the tragic past and the peaceful and democratic social order in today ’ s European Union;", "10. Believes that appropriate preservation of historical memory, a comprehensive reassessment of European history and Europe-wide recognition of all historical aspects of modern Europe will strengthen European integration;", "...", "13. Calls for the establishment of a Platform of European Memory and Conscience to provide support for networking and cooperation among national research institutes specialising in the subject of totalitarian history, and for the creation of a pan-European documentation centre/memorial for the victims of all totalitarian regimes;", "...", "15. Calls for the proclamation of 23 August as a Europe-wide Day of Remembrance for the victims of all totalitarian and authoritarian regimes, to be commemorated with dignity and impartiality;", "16. Is convinced that the ultimate goal of disclosure and assessment of the crimes committed by the Communist totalitarian regimes is reconciliation, which can be achieved by admitting responsibility, asking for forgiveness and fostering moral renewal ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "35. On 6 February 1995 the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) was passed. It entered into force on 28 March 1995.", "36. The Act provided for registration and disclosure of persons who had served in or co-operated with certain security or intelligence organisations of Nazi Germany and Soviet Union, enumerated in the Disclosure Act, between 17 June 1940 and 31 December 1991 (sections 1 to 3). Section 4 of the Disclosure Act stipulated that it applied to staff members of the security or intelligence organisations as well as to persons who had co-operated with these organisations and set forth criteria as to what was to be deemed as the co-operation in question.", "37. Section 5 provided that the persons concerned were registered on the basis of a personal confession submitted to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act or on the basis of other available evidence.", "38. In case the person concerned did not make a personal confession or knowingly provided false information, information about his service in or co-operation with the security or intelligence organisations was to be made public (sections 6 to 8). Conversely, persons who submitted a personal confession within one year of the entry into force of the Disclosure Act without providing false information were, as a rule, not made public (sections 7(2) and 8(1)) and information concerning them was classified as state secret for fifty years (section 6 of the State Secrets Act ( Riigisaladuse seadus )).", "39. Before presentation of the notice for publication the person concerned was notified of the text thereof by the Estonian Internal Security Service (section 8(2) of the Disclosure Act). He or she had the right, within one month of receipt of the notice, to have access to the pertinent documents in the Estonian Internal Security Service and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The burden of proof of the person ’ s service in security or intelligence organisations or co-operation therewith lied with the Estonian Internal Security Service (section 8(4)).", "40. In a judgment of 31 January 2003 (case no. 3-257/2003) the Tallinn Administrative Court granted a complaint against a notice of the Estonian Internal Security Service. It found that the complainant ’ s employment in the NKVD ( People ’ s Commissariat for Internal Affairs, a predecessor of the KGB) had not been proven by proper evidence. The court ordered the Estonian Internal Security Service to delete the data on the complainant from its register. This judgment was upheld by the Tallinn Court of Appeal judgment of 8 December 2003 (case no. 2-3/394/2003). The Court of Appeal noted that the burden of proof in the cases falling under the Disclosure Act lied with the Estonian Internal Security Service and emphasised that registration and disclosure of the persons in question could not be based on mere suspicions.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS", "41. On 27 June 1996 the Parliamentary Assembly of the Council of Europe ( PACE ) adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems. It reads, in so far as relevant:", "“ 1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over-regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome.", "...", "3. The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of the rule of law, and organised crime instead of human rights. At worst, the result could be the \"velvet restoration\" of a totalitarian regime, if not a violent overthrow of the fledgling democracy. In that worst case, the new undemocratic regime of a bigger country can present also an international danger for its weaker neighbours. The key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.", "4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures.", "5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of:", "IV. RELEVANT EUROPEAN UNION MATERIAL", "43. On 23 September 2008 the European Parliament adopted a Declaration on the proclamation of 23 August as European Day of Remembrance for Victims of Stalinism and Nazism. The Declaration reads as follows:", "“ The European Parliament,", "...", "D. whereas the influence and significance of the Soviet order and occupation on and for citizens of the post-Communist States are little known in Europe,", "...", "1. Proposes that 23 August be proclaimed European Day of Remembrance for Victims of Stalinism and Nazism, in order to preserve the memory of the victims of mass deportations and exterminations, and at the same time rooting democracy more firmly and reinforcing peace and stability in our continent ... ”", "44. On 2 April 200 9 the European Parliament adopted a Resolution on European conscience and totalitarianism. The Resolution reads as follows:", "“ The European Parliament,", "...", "– having regard to the Truth and Justice Commissions established in various parts of the world, which have helped those who have lived under numerous former authoritarian and totalitarian regimes to overcome their differences and achieve reconciliation,", "...", "A. whereas historians agree that fully objective interpretations of historical facts are not possible and objective historical narratives do not exist; whereas, nevertheless, professional historians use scientific tools to study the past, and try to be as impartial as possible,", "...", "F. whereas the memories of Europe ’ s tragic past must be kept alive in order to honour the victims, condemn the perpetrators and lay the foundations for reconciliation based on truth and remembrance,", "G. whereas millions of victims were deported, imprisoned, tortured and murdered by totalitarian and authoritarian regimes during the 20th century in Europe; whereas the uniqueness of the Holocaust must nevertheless be acknowledged,", "H. whereas the dominant historical experience of Western Europe was Nazism, and whereas Central and Eastern European countries have experienced both Communism and Nazism; whereas understanding has to be promoted in relation to the double legacy of dictatorship borne by these countries,", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "45. The applicant complained that his right to respect for his private and family life had been breached owing to the publication of the information that he had worked as a driver of the KGB. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "46. The Government contested that argument.", "A. Admissibility", "1. The parties ’ submissions", "47. The Government argued that the applicant had not exhausted domestic remedies. He had not contested the notice of 27 February 2004 of the Estonian Internal Security Service neither before the Service nor before an administrative court. Only by contesting the notice could he have prevented publication of the announcement and disclosure of the fact of his service in the KGB. The Government additionally suggested that the fact that the announcement had already been published by the time the court proceedings took place, and that the Chancellor of Justice had expressed his opinion on the matter in the meantime, may have played certain role in the domestic courts ’ assessment of the proportionality of the interference. Although the applicant ’ s subsequent complaint to the administrative courts was admissible, it could not bring along the same consequence as contestation of the notice of 27 February 2004, that is prevention of the disclosure.", "48. The applicant submitted that he had not wished to contest the notice by the Estonian Internal Security Service as the fact of his work in the security department had been known to everyone. Negative consequences for him had occurred several months later when the announcement in which he had been called a person who had occupied Estonia had been published on the Internet.", "2. The Court ’ s assessment", "49. As regards the question whether the applicant was required to contest the notice presented to him by the Estonian Internal Security Service in order to comply with the requirement of exhaustion of domestic remedies, the Court has taken note of the domestic case-law which demonstrates that publication of an announcement in Riigi Teataja Lisa could be prevented by contesting the notice in question (see paragraph 40 above). The Court observes, however, that the present case differs from the one referred to above in that in the present case the applicant did not dispute the fact of his service in the KGB. It would appear that the question of whether the publication amounted to a disproportionate interference with the private life of the person falling under the Disclosure Act could be raised either through challenging the Estonian Internal Security Service ’ s initial notice or the actual publication of the announcement in Riigi Teataja Lisa. The Court notes that in the present case, although the applicant did not use the possibility to contest the notice, the administrative courts nevertheless examined on the merits his complaint against the publication of the announcement. Therefore, the Government ’ s argument about non-exhaustion of domestic remedies must be rejected.", "50. The Court considers that the Government ’ s additional arguments on non-exhaustion (see paragraph 47 above) are not pertinent. Firstly, the argument about the relevance of the fact that the announcement had been published by the time of the court proceedings does not find support in the Court of Appeal ’ s reasoning (see paragraph 31 above). Secondly, as concerns the fact that the opinion of the Chancellor of Justice – according to which the Disclosure Act was not unconstitutional (see paragraph 23 above) – was known to the domestic courts, it is not for the Court to speculate whether the domestic courts would have decided the applicant ’ s case differently if they would have dealt with it before the Chancellor of Justice gave his opinion. In any event, this opinion was not binding on the courts which were independent in deciding the case. Therefore, the Government ’ s additional arguments on non-exhaustion must also be rejected.", "51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "52. The applicant was of the opinion that in the announcement of the Estonian Internal Security Service published in Riigi Teataja Lisa in 2004 he had been considered as a person who had occupied Estonia whereas in the announcements published later, in 2005, the persons in question had not been referred to as persons who had occupied Estonia but rather as persons who had been in the service of the intelligence organisations of the USSR. He argued that it was unclear on the basis of which evidence he was deemed as an occupier and why he was considered to be dangerous. He submitted that “occupier” ( okupant ) was a word that was understood to refer to a serious crime involving conquering the country with the use of arms and exercising occupation therein. At the time when the applicant had worked as a driver for the security department, the activities of this institution had been supervised by the local Communist Party committee where the Prime Minister of the Republic of Estonia of the time of the submission of the observations had held a position of responsibility.", "53. The applicant had never concealed his employment in the security department. This fact could be seen from his employment record and no employer had had any problems with that. However, after the publication of the announcement on the Internet under the title referring to an “occupier” he was being considered as an occupier, a traitor, a snitch among his colleagues and acquaintances. He was forced to quit his job and lost his income. The applicant considered that it was wrong and offending to call him an occupier.", "(b) The Government", "54. The Government emphasised that it was not in dispute that from 1980 until 1991 the applicant had worked as a driver in the KGB. Furthermore, the interference with the applicant ’ s right to respect for his private life was in accordance with law and it was necessary in a democratic society in the interests of national security, public safety and for the protection of the rights and freedoms of others. The Government pointed out that for the transfer from a totalitarian regime to a democratic system, Estonia took various measures which, in aggregate, had to ensure the development and security of the democratic system. Criminal liability for crimes against humanity and war crimes committed under the totalitarian regime was established and an obligation to take an oath of conscience was introduced for those seeking the highest offices in the country. The Disclosure Act dealt with the persons who had not committed any crimes but had been employed by or collaborated with the intelligence or counterintelligence authorities of the States which had occupied Estonia. It was found that such persons had to come to terms with their past and not to try to forget, conceal or be silent about it. There was also a significant public interest in the publicity of information relating to the past; this had to guarantee transparency and clarity as well as overall internal peace in the society. Obtaining complete information about the members and agents of the security and intelligence authorities which had operated on the territory of Estonia was also important for the protection of independence and security of the Republic of Estonia. Estonia was lacking the relevant information; such information, including the lists of persons who had worked in the KGB, was in the hands of foreign States. There could be attempts to recruit former staff of the security authorities and make them perform security or intelligence tasks, or they could be subject to blackmailing. Such situation was dangerous and damaging for Estonia. The Government referred to recent cases where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason.", "55. The Government also pointed out that persons falling under the Disclosure Act could express their loyalty to the Republic of Estonia by submitting a confession, in which case their data was not disclosed. Moreover, in order to secure protection to the persons concerned, the disclosure was subject to prior judicial review. As regards the question whether it was necessary to also disclose information about persons who, as the applicant, had worked as drivers, the Government argued that the formal job title was not decisive as the drivers could also perform other tasks, especially in rural regions where the applicant had worked. There had even been separate positions formally combining the tasks of the driver with other functions, such as “driver-intelligence officer” dealing with secret surveillance, and for some of the drivers the driver ’ s position had been a step for advancement to the next, “more important” position, like that of an operative agent or intelligence officer. The Government also argued that the Estonian Internal Security Service, having regard to their limited resources, focused on cases which were more important and which could involve real danger to the Republic of Estonia.", "2. The Court ’ s assessment", "56. The Court considers that the publication of the information about the applicant ’ s service in the KGB concerned facts about his personal past that were made available to the public and also affected his reputation. It therefore constituted an interference with his right to respect for his private life (compare Sidabras and Džiautas v. Lithuania, nos. 55480 /00 and 59330/00, §§ 42-50, ECHR 2004 ‑ VIII).", "57. The Court further notes that the lawfulness of the interference was not in dispute between the parties. It observes that the interference in question was based on the Diclosure Act that had been adopted by the Riigikogu and published according to the rules in force. Nor has it been disputed that the text of the law was sufficiently clear to enable those affected to foresee the consequences it entailed. The law ’ s accessibility and public awareness of it is also confirmed by the information provided by the Government according to which 1,153 persons submitted a confession to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act in order not to have information about their service in or collaboration with the security and intelligence organisations published. Thus, the Court is satisfied that the impugned interference was lawful for the purposes of the second paragraph of Article 8 of the Convention.", "58. As regards the purpose of the interference, the Court notes that the registration and disclosure of the former employees and collaborators of the security and intelligence organisations of the regimes that had operated in Estonia were part of the measures taken to ensure the transparency, clarity and internal peace in the society, as well as to avoid security threats. The Court has also taken note of the cases referred to by the Government where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason (see paragraph 54 above). The Court concludes that the interference in question pursued legitimate aims within the meaning of paragraph 2 of Article 8, namely the protection of national security and public safety, the prevention of disorder as well as well as the protection of the rights and freedoms of others (compare, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 54-55 ).", "59. Accordingly, the Court proceeds to the examination of whether the measure was “necessary in a democratic society”. The Court observes in this connection that there is no uniform approach among High Contracting Parties as to the measures to dismantle the heritage of former communist totalitarian systems (see Matyjek v. Poland (dec.), no. 38184/03, § 36, ECHR 2006 ‑ VII ). Different measures have been applied and their application has given rise to a number of cases before the Court concerning a variety of issues such as restrictions on the persons ’ eligibility to stand for elections (see Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006 ‑ IV, and Ādamsons v. Latvia, no. 3669/03, 24 June 2008) or to their employment (see Vogt v. Germany, 26 September 1995, Series A no. 323; Volkmer v. Germany (dec.), no. 39799/98, 22 November 2001; Sidabras and Džiautas, cited above; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, 7 April 2009) as well as lack of access to the information on the basis of which the persons ’ collaboration with former secret services was established (see Matyjek v. Poland, no. 38184/03, 24 April 2007) or reduction of pensions of the persons concerned (see Cichopek and Others v. Poland (dec.) no. 15189/10 and other applications, 14 May 2013). Against this background, the Court turns to the proportionality analysis of the impugned measures in the present case.", "60. The Court reiterates that in a number of previous cases it has criticised the lack of individualisation of the impugned measures. Thus, in Ādamsons it considered that the group of persons – former KGB agents – to which the restrictions to stand for elections applied, had been designed in a too broad manner without having regard to the period of service of the persons concerned, specific tasks assigned to them or their individual behaviour (see Ādamsons, cited above, § 125). Similarly, in Žičkus the lack of differentiation in domestic law between different levels of former involvement with the KGB was pointed out by the Court (see Žičkus, cited above, § 33). In addition to the lack of differentiation in domestic law as regards the premises for the application of the restrictions, the Court has also addressed the issue of broadly fashioned restrictions applied to the individuals concerned. Thus, in Sidabras and Džiautas, it noted that with the exception of references to “lawyers” and “notaries”, domestic law contained no definition of the specific private sector jobs, functions or tasks which the applicants were barred from holding (see Sidabras and Džiautas, cited above, § 59).", "61. The Court is of the view that the above considerations also apply to the present case. It notes that the Disclosure Act made no distinction between different levels of former involvement with the KGB. It is true that under the applicable procedure the applicant was informed beforehand of the text of the announcement to be published, and given a possibility to contest the factual information contained in it. However, there was no procedure put in place to assess the specific tasks performed by individual employees of the former security services in order to differentiate the danger they could possibly pose several years after the termination of their career in these institutions. The Court is not convinced that there existed a reasonable link between the legitimate aims sought by the enactment of the Disclosure Act and the publication of information about all former employees of the former security services including drivers, as in the applicant ’ s case, regardless of the specific function they performed in these services.", "62. The Court also notes that although the Disclosure Act came into force three and a half years after Estonia had declared its independence on 20 August 1991, the publication of the information about the former employees of the security services was stretched over several years. Thus, in the applicant ’ s case the information in question was only published in 2004 – almost thirteen years after the restoration of the Estonian independence. The Court is of the opinion that any threat the former servicemen of the KGB could initially pose to the newly created democracy must have considerably decreased with the passage of time. It notes that it does not appear from the file that any assessment of the possible threat posed by the applicant at the time of the publication of the information was carried out (compare Žičkus, loc. cit. ).", "63. Lastly, the Court observes that the Disclosure Act in itself did not impose any restrictions on the applicant ’ s employment. Nevertheless, according to the applicant he was derided by his colleagues and forced to quit his job. The Court considers that even if such a result was not sought by the Disclosure Act, it is nevertheless indicative of the seriousness of the interference with the applicant ’ s right to respect for his private life.", "64. The foregoing considerations are sufficient to enable the Court to conclude that the applicant ’ s right to respect for his private life was subject to a disproportionate interference in the present case.", "There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "65. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "66. The applicant claimed 2,556 euros (EUR) – loss of his four months ’ salary – in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage.", "67. The Government argued that it had not been proven that the applicant had been forced to quit his work, or that he had lost his income. In respect of non-pecuniary damage, the Government were of the opinion that as the Convention had not been violated, there was no basis for awarding any compensation. In the event that the Court found a violation, such a finding itself would constitute sufficient just satisfaction. If the Court decided to award monetary compensation, the Government left it to the Court to determine a reasonable sum in non-pecuniary damages.", "68. The Court considers that the applicant has not submitted any proof to determine the sum of the alleged pecuniary damage. It therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "69. The applicant also claimed EUR 1,508.65 for the costs and expenses incurred before the domestic authorities and before the Strasbourg Court.", "70. The Government were of the opinion that part of the legal costs claimed by the applicant were completely irrelevant to the present case and in respect of other alleged costs no invoices had been submitted or money paid. The Government asked the Court to reject the applicant ’ s claims for costs and expenses.", "71. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that absence of proof of payment does not necessarily result in the rejection of a claim for costs and expenses that is in itself well-founded (see S. v. Estonia, no. 17779/08, § 55, 4 October 2011, and Krejčíř v. the Czech Republic, nos. 39298/04 and 8723/05, § 137, 26 March 2009). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,444.74 covering costs under all heads.", "C. Default interest", "72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1948 and lives in Tartu.", "A. Historical background", "6. Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006 ). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005 ‑ XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006).", "7. After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) and the Constitution of the Republic of Estonia Implementation Act ( Eesti Vabariigi põhiseaduse rakendamise seadus ) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience ( süümevanne ) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act ( Seadus süümevande andmise korra kohta ).", "8. In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value.", "9. On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States ’ Security and Intelligence Authorities which Have Operated in Estonia Act ( Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus ) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question.", "10. On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision.", "11. As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue.", "12. On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service ( Kaitsepolitseiamet ). Information about such persons ’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995.", "13. According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB.", "14. On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual ’ s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned.", "15. On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act ( Okupatsioonirežiimide poolt represseeritud isiku seadus ) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question.", "B. Publication of information about the applicant ’ s employment by the KGB", "16. From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security.", "17. On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice.", "18. According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant ’ s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong.", "19. On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows:", "“ANNOUNCEMENTS OF THE ESTONIAN INTERNAL SECURITY SERVICEabout persons who have served in or co-operated with security organisations or intelligence or counterintelligence organisations of armed forces of States which have occupied Estonia", "Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons.", "...", "Announcement no. 695 of 27.02.2004", "MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver", "1. Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989", "2. Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991”", "20. In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa .”", "21. The applicant raised the issue with the Chancellor of Justice ( Õiguskantsler ) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person ’ s place of employment at the time of the publication of the announcement was also made public.", "22. The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice.", "23. After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public.", "C. Court proceedings initiated by the applicant", "24. On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier ( okupant ) and an informant ( koputaja ) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him.", "25. At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked.", "26. By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant ’ s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant ’ s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with.", "27. The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa ” and, thus, the notion “former” ( endine ) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” ( okupant ) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant ’ s rights.", "28. The Administrative Court found that the applicant ’ s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful.", "29. The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR.", "30. The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State.", "31. By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person ’ s fundamental rights caused by the acts of third parties as the person ’ s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution.", "32. The Court of Appeal found as follows:", "“10. ... The Chancellor of Justice established in his proceedings that according to the defendant ’ s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations ’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].”", "33. In respect of the applicant ’ s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant ’ s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names.", "34. On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant.", "i. demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;", "ii. decentralisation, especially at local and regional levels and within state institutions;", "iii. demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society;", "iv. debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens.", "6. This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one ’ s actions.", "7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.", "8. The Assembly recommends that the prosecution of individual crimes go hand-in-hand with the rehabilitation of people convicted of \"crimes\" which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force.", "9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.", "...", "11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.", "12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.", "13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process ... ”", "42. On 25 January 2006 the PACE adopted Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes. It reads, in so far as relevant, as follows:", "“ 2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.", "3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.", "...", "5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).", "6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.", "7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.", "8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.", "...", "12. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes.", "13. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.", "14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.”", "I. whereas from the outset European integration has been a response to the suffering inflicted by two world wars and the Nazi tyranny that led to the Holocaust and to the expansion of totalitarian and undemocratic Communist regimes in Central and Eastern Europe, as well as a way of overcoming deep divisions and hostility in Europe through cooperation and integration and of ending war and securing democracy in Europe,", "J. whereas the process of European integration has been successful and has now led to a European Union that encompasses the countries of Central and Eastern Europe which lived under Communist regimes from the end of World War II until the early 1990s, and whereas the earlier accessions of Greece, Spain and Portugal, which suffered under long ‑ lasting fascist regimes, helped secure democracy in the south of Europe,", "K. whereas Europe will not be united unless it is able to form a common view of its history, recognises Nazism, Stalinism and fascist and Communist regimes as a common legacy and brings about an honest and thorough debate on their crimes in the past century,", "...", "3. Underlines the importance of keeping the memories of the past alive, because there can be no reconciliation without truth and remembrance; reconfirms its united stand against all totalitarian rule from whatever ideological background;", "4. Recalls that the most recent crimes against humanity and acts of genocide in Europe were still taking place in July 1995 and that constant vigilance is needed to fight undemocratic, xenophobic, authoritarian and totalitarian ideas and tendencies;", "5. Underlines that, in order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe ’ s troubled past must be supported, as there can be no reconciliation without remembrance;", "6. Regrets that, 20 years after the collapse of the Communist dictatorships in Central and Eastern Europe, access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies, although steps must be taken to ensure that this process is not abused for political purposes;", "...", "9. Calls on the Commission and the Member States to make further efforts to strengthen the teaching of European history and to underline the historic achievement of European integration and the stark contrast between the tragic past and the peaceful and democratic social order in today ’ s European Union;", "10. Believes that appropriate preservation of historical memory, a comprehensive reassessment of European history and Europe-wide recognition of all historical aspects of modern Europe will strengthen European integration;", "...", "13. Calls for the establishment of a Platform of European Memory and Conscience to provide support for networking and cooperation among national research institutes specialising in the subject of totalitarian history, and for the creation of a pan-European documentation centre/memorial for the victims of all totalitarian regimes;", "...", "15. Calls for the proclamation of 23 August as a Europe-wide Day of Remembrance for the victims of all totalitarian and authoritarian regimes, to be commemorated with dignity and impartiality;", "16. Is convinced that the ultimate goal of disclosure and assessment of the crimes committed by the Communist totalitarian regimes is reconciliation, which can be achieved by admitting responsibility, asking for forgiveness and fostering moral renewal ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "35. On 6 February 1995 the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) was passed. It entered into force on 28 March 1995.", "36. The Act provided for registration and disclosure of persons who had served in or co-operated with certain security or intelligence organisations of Nazi Germany and Soviet Union, enumerated in the Disclosure Act, between 17 June 1940 and 31 December 1991 (sections 1 to 3). Section 4 of the Disclosure Act stipulated that it applied to staff members of the security or intelligence organisations as well as to persons who had co-operated with these organisations and set forth criteria as to what was to be deemed as the co-operation in question.", "37. Section 5 provided that the persons concerned were registered on the basis of a personal confession submitted to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act or on the basis of other available evidence.", "38. In case the person concerned did not make a personal confession or knowingly provided false information, information about his service in or co-operation with the security or intelligence organisations was to be made public (sections 6 to 8). Conversely, persons who submitted a personal confession within one year of the entry into force of the Disclosure Act without providing false information were, as a rule, not made public (sections 7(2) and 8(1)) and information concerning them was classified as state secret for fifty years (section 6 of the State Secrets Act ( Riigisaladuse seadus )).", "39. Before presentation of the notice for publication the person concerned was notified of the text thereof by the Estonian Internal Security Service (section 8(2) of the Disclosure Act). He or she had the right, within one month of receipt of the notice, to have access to the pertinent documents in the Estonian Internal Security Service and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The burden of proof of the person ’ s service in security or intelligence organisations or co-operation therewith lied with the Estonian Internal Security Service (section 8(4)).", "40. In a judgment of 31 January 2003 (case no. 3-257/2003) the Tallinn Administrative Court granted a complaint against a notice of the Estonian Internal Security Service. It found that the complainant ’ s employment in the NKVD ( People ’ s Commissariat for Internal Affairs, a predecessor of the KGB) had not been proven by proper evidence. The court ordered the Estonian Internal Security Service to delete the data on the complainant from its register. This judgment was upheld by the Tallinn Court of Appeal judgment of 8 December 2003 (case no. 2-3/394/2003). The Court of Appeal noted that the burden of proof in the cases falling under the Disclosure Act lied with the Estonian Internal Security Service and emphasised that registration and disclosure of the persons in question could not be based on mere suspicions.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS", "41. On 27 June 1996 the Parliamentary Assembly of the Council of Europe ( PACE ) adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems. It reads, in so far as relevant:", "“ 1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over-regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome.", "...", "3. The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of the rule of law, and organised crime instead of human rights. At worst, the result could be the \"velvet restoration\" of a totalitarian regime, if not a violent overthrow of the fledgling democracy. In that worst case, the new undemocratic regime of a bigger country can present also an international danger for its weaker neighbours. The key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.", "4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures.", "5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of:", "IV. RELEVANT EUROPEAN UNION MATERIAL", "43. On 23 September 2008 the European Parliament adopted a Declaration on the proclamation of 23 August as European Day of Remembrance for Victims of Stalinism and Nazism. The Declaration reads as follows:", "“ The European Parliament,", "...", "D. whereas the influence and significance of the Soviet order and occupation on and for citizens of the post-Communist States are little known in Europe,", "...", "1. Proposes that 23 August be proclaimed European Day of Remembrance for Victims of Stalinism and Nazism, in order to preserve the memory of the victims of mass deportations and exterminations, and at the same time rooting democracy more firmly and reinforcing peace and stability in our continent ... ”", "44. On 2 April 200 9 the European Parliament adopted a Resolution on European conscience and totalitarianism. The Resolution reads as follows:", "“ The European Parliament,", "...", "– having regard to the Truth and Justice Commissions established in various parts of the world, which have helped those who have lived under numerous former authoritarian and totalitarian regimes to overcome their differences and achieve reconciliation,", "...", "A. whereas historians agree that fully objective interpretations of historical facts are not possible and objective historical narratives do not exist; whereas, nevertheless, professional historians use scientific tools to study the past, and try to be as impartial as possible,", "...", "F. whereas the memories of Europe ’ s tragic past must be kept alive in order to honour the victims, condemn the perpetrators and lay the foundations for reconciliation based on truth and remembrance,", "G. whereas millions of victims were deported, imprisoned, tortured and murdered by totalitarian and authoritarian regimes during the 20th century in Europe; whereas the uniqueness of the Holocaust must nevertheless be acknowledged,", "H. whereas the dominant historical experience of Western Europe was Nazism, and whereas Central and Eastern European countries have experienced both Communism and Nazism; whereas understanding has to be promoted in relation to the double legacy of dictatorship borne by these countries,", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "45. The applicant complained that his right to respect for his private and family life had been breached owing to the publication of the information that he had worked as a driver of the KGB. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "46. The Government contested that argument.", "A. Admissibility", "1. The parties ’ submissions", "47. The Government argued that the applicant had not exhausted domestic remedies. He had not contested the notice of 27 February 2004 of the Estonian Internal Security Service neither before the Service nor before an administrative court. Only by contesting the notice could he have prevented publication of the announcement and disclosure of the fact of his service in the KGB. The Government additionally suggested that the fact that the announcement had already been published by the time the court proceedings took place, and that the Chancellor of Justice had expressed his opinion on the matter in the meantime, may have played certain role in the domestic courts ’ assessment of the proportionality of the interference. Although the applicant ’ s subsequent complaint to the administrative courts was admissible, it could not bring along the same consequence as contestation of the notice of 27 February 2004, that is prevention of the disclosure.", "48. The applicant submitted that he had not wished to contest the notice by the Estonian Internal Security Service as the fact of his work in the security department had been known to everyone. Negative consequences for him had occurred several months later when the announcement in which he had been called a person who had occupied Estonia had been published on the Internet.", "2. The Court ’ s assessment", "49. As regards the question whether the applicant was required to contest the notice presented to him by the Estonian Internal Security Service in order to comply with the requirement of exhaustion of domestic remedies, the Court has taken note of the domestic case-law which demonstrates that publication of an announcement in Riigi Teataja Lisa could be prevented by contesting the notice in question (see paragraph 40 above). The Court observes, however, that the present case differs from the one referred to above in that in the present case the applicant did not dispute the fact of his service in the KGB. It would appear that the question of whether the publication amounted to a disproportionate interference with the private life of the person falling under the Disclosure Act could be raised either through challenging the Estonian Internal Security Service ’ s initial notice or the actual publication of the announcement in Riigi Teataja Lisa. The Court notes that in the present case, although the applicant did not use the possibility to contest the notice, the administrative courts nevertheless examined on the merits his complaint against the publication of the announcement. Therefore, the Government ’ s argument about non-exhaustion of domestic remedies must be rejected.", "50. The Court considers that the Government ’ s additional arguments on non-exhaustion (see paragraph 47 above) are not pertinent. Firstly, the argument about the relevance of the fact that the announcement had been published by the time of the court proceedings does not find support in the Court of Appeal ’ s reasoning (see paragraph 31 above). Secondly, as concerns the fact that the opinion of the Chancellor of Justice – according to which the Disclosure Act was not unconstitutional (see paragraph 23 above) – was known to the domestic courts, it is not for the Court to speculate whether the domestic courts would have decided the applicant ’ s case differently if they would have dealt with it before the Chancellor of Justice gave his opinion. In any event, this opinion was not binding on the courts which were independent in deciding the case. Therefore, the Government ’ s additional arguments on non-exhaustion must also be rejected.", "51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "52. The applicant was of the opinion that in the announcement of the Estonian Internal Security Service published in Riigi Teataja Lisa in 2004 he had been considered as a person who had occupied Estonia whereas in the announcements published later, in 2005, the persons in question had not been referred to as persons who had occupied Estonia but rather as persons who had been in the service of the intelligence organisations of the USSR. He argued that it was unclear on the basis of which evidence he was deemed as an occupier and why he was considered to be dangerous. He submitted that “occupier” ( okupant ) was a word that was understood to refer to a serious crime involving conquering the country with the use of arms and exercising occupation therein. At the time when the applicant had worked as a driver for the security department, the activities of this institution had been supervised by the local Communist Party committee where the Prime Minister of the Republic of Estonia of the time of the submission of the observations had held a position of responsibility.", "53. The applicant had never concealed his employment in the security department. This fact could be seen from his employment record and no employer had had any problems with that. However, after the publication of the announcement on the Internet under the title referring to an “occupier” he was being considered as an occupier, a traitor, a snitch among his colleagues and acquaintances. He was forced to quit his job and lost his income. The applicant considered that it was wrong and offending to call him an occupier.", "(b) The Government", "54. The Government emphasised that it was not in dispute that from 1980 until 1991 the applicant had worked as a driver in the KGB. Furthermore, the interference with the applicant ’ s right to respect for his private life was in accordance with law and it was necessary in a democratic society in the interests of national security, public safety and for the protection of the rights and freedoms of others. The Government pointed out that for the transfer from a totalitarian regime to a democratic system, Estonia took various measures which, in aggregate, had to ensure the development and security of the democratic system. Criminal liability for crimes against humanity and war crimes committed under the totalitarian regime was established and an obligation to take an oath of conscience was introduced for those seeking the highest offices in the country. The Disclosure Act dealt with the persons who had not committed any crimes but had been employed by or collaborated with the intelligence or counterintelligence authorities of the States which had occupied Estonia. It was found that such persons had to come to terms with their past and not to try to forget, conceal or be silent about it. There was also a significant public interest in the publicity of information relating to the past; this had to guarantee transparency and clarity as well as overall internal peace in the society. Obtaining complete information about the members and agents of the security and intelligence authorities which had operated on the territory of Estonia was also important for the protection of independence and security of the Republic of Estonia. Estonia was lacking the relevant information; such information, including the lists of persons who had worked in the KGB, was in the hands of foreign States. There could be attempts to recruit former staff of the security authorities and make them perform security or intelligence tasks, or they could be subject to blackmailing. Such situation was dangerous and damaging for Estonia. The Government referred to recent cases where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason.", "55. The Government also pointed out that persons falling under the Disclosure Act could express their loyalty to the Republic of Estonia by submitting a confession, in which case their data was not disclosed. Moreover, in order to secure protection to the persons concerned, the disclosure was subject to prior judicial review. As regards the question whether it was necessary to also disclose information about persons who, as the applicant, had worked as drivers, the Government argued that the formal job title was not decisive as the drivers could also perform other tasks, especially in rural regions where the applicant had worked. There had even been separate positions formally combining the tasks of the driver with other functions, such as “driver-intelligence officer” dealing with secret surveillance, and for some of the drivers the driver ’ s position had been a step for advancement to the next, “more important” position, like that of an operative agent or intelligence officer. The Government also argued that the Estonian Internal Security Service, having regard to their limited resources, focused on cases which were more important and which could involve real danger to the Republic of Estonia.", "2. The Court ’ s assessment", "56. The Court considers that the publication of the information about the applicant ’ s service in the KGB concerned facts about his personal past that were made available to the public and also affected his reputation. It therefore constituted an interference with his right to respect for his private life (compare Sidabras and Džiautas v. Lithuania, nos. 55480 /00 and 59330/00, §§ 42-50, ECHR 2004 ‑ VIII).", "57. The Court further notes that the lawfulness of the interference was not in dispute between the parties. It observes that the interference in question was based on the Diclosure Act that had been adopted by the Riigikogu and published according to the rules in force. Nor has it been disputed that the text of the law was sufficiently clear to enable those affected to foresee the consequences it entailed. The law ’ s accessibility and public awareness of it is also confirmed by the information provided by the Government according to which 1,153 persons submitted a confession to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act in order not to have information about their service in or collaboration with the security and intelligence organisations published. Thus, the Court is satisfied that the impugned interference was lawful for the purposes of the second paragraph of Article 8 of the Convention.", "58. As regards the purpose of the interference, the Court notes that the registration and disclosure of the former employees and collaborators of the security and intelligence organisations of the regimes that had operated in Estonia were part of the measures taken to ensure the transparency, clarity and internal peace in the society, as well as to avoid security threats. The Court has also taken note of the cases referred to by the Government where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason (see paragraph 54 above). The Court concludes that the interference in question pursued legitimate aims within the meaning of paragraph 2 of Article 8, namely the protection of national security and public safety, the prevention of disorder as well as well as the protection of the rights and freedoms of others (compare, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 54-55 ).", "59. Accordingly, the Court proceeds to the examination of whether the measure was “necessary in a democratic society”. The Court observes in this connection that there is no uniform approach among High Contracting Parties as to the measures to dismantle the heritage of former communist totalitarian systems (see Matyjek v. Poland (dec.), no. 38184/03, § 36, ECHR 2006 ‑ VII ). Different measures have been applied and their application has given rise to a number of cases before the Court concerning a variety of issues such as restrictions on the persons ’ eligibility to stand for elections (see Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006 ‑ IV, and Ādamsons v. Latvia, no. 3669/03, 24 June 2008) or to their employment (see Vogt v. Germany, 26 September 1995, Series A no. 323; Volkmer v. Germany (dec.), no. 39799/98, 22 November 2001; Sidabras and Džiautas, cited above; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, 7 April 2009) as well as lack of access to the information on the basis of which the persons ’ collaboration with former secret services was established (see Matyjek v. Poland, no. 38184/03, 24 April 2007) or reduction of pensions of the persons concerned (see Cichopek and Others v. Poland (dec.) no. 15189/10 and other applications, 14 May 2013). Against this background, the Court turns to the proportionality analysis of the impugned measures in the present case.", "60. The Court reiterates that in a number of previous cases it has criticised the lack of individualisation of the impugned measures. Thus, in Ādamsons it considered that the group of persons – former KGB agents – to which the restrictions to stand for elections applied, had been designed in a too broad manner without having regard to the period of service of the persons concerned, specific tasks assigned to them or their individual behaviour (see Ādamsons, cited above, § 125). Similarly, in Žičkus the lack of differentiation in domestic law between different levels of former involvement with the KGB was pointed out by the Court (see Žičkus, cited above, § 33). In addition to the lack of differentiation in domestic law as regards the premises for the application of the restrictions, the Court has also addressed the issue of broadly fashioned restrictions applied to the individuals concerned. Thus, in Sidabras and Džiautas, it noted that with the exception of references to “lawyers” and “notaries”, domestic law contained no definition of the specific private sector jobs, functions or tasks which the applicants were barred from holding (see Sidabras and Džiautas, cited above, § 59).", "61. The Court is of the view that the above considerations also apply to the present case. It notes that the Disclosure Act made no distinction between different levels of former involvement with the KGB. It is true that under the applicable procedure the applicant was informed beforehand of the text of the announcement to be published, and given a possibility to contest the factual information contained in it. However, there was no procedure put in place to assess the specific tasks performed by individual employees of the former security services in order to differentiate the danger they could possibly pose several years after the termination of their career in these institutions. The Court is not convinced that there existed a reasonable link between the legitimate aims sought by the enactment of the Disclosure Act and the publication of information about all former employees of the former security services including drivers, as in the applicant ’ s case, regardless of the specific function they performed in these services.", "62. The Court also notes that although the Disclosure Act came into force three and a half years after Estonia had declared its independence on 20 August 1991, the publication of the information about the former employees of the security services was stretched over several years. Thus, in the applicant ’ s case the information in question was only published in 2004 – almost thirteen years after the restoration of the Estonian independence. The Court is of the opinion that any threat the former servicemen of the KGB could initially pose to the newly created democracy must have considerably decreased with the passage of time. It notes that it does not appear from the file that any assessment of the possible threat posed by the applicant at the time of the publication of the information was carried out (compare Žičkus, loc. cit. ).", "63. Lastly, the Court observes that the Disclosure Act in itself did not impose any restrictions on the applicant ’ s employment. Nevertheless, according to the applicant he was derided by his colleagues and forced to quit his job. The Court considers that even if such a result was not sought by the Disclosure Act, it is nevertheless indicative of the seriousness of the interference with the applicant ’ s right to respect for his private life.", "64. The foregoing considerations are sufficient to enable the Court to conclude that the applicant ’ s right to respect for his private life was subject to a disproportionate interference in the present case.", "There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "65. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "66. The applicant claimed 2,556 euros (EUR) – loss of his four months ’ salary – in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage.", "67. The Government argued that it had not been proven that the applicant had been forced to quit his work, or that he had lost his income. In respect of non-pecuniary damage, the Government were of the opinion that as the Convention had not been violated, there was no basis for awarding any compensation. In the event that the Court found a violation, such a finding itself would constitute sufficient just satisfaction. If the Court decided to award monetary compensation, the Government left it to the Court to determine a reasonable sum in non-pecuniary damages.", "68. The Court considers that the applicant has not submitted any proof to determine the sum of the alleged pecuniary damage. It therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "69. The applicant also claimed EUR 1,508.65 for the costs and expenses incurred before the domestic authorities and before the Strasbourg Court.", "70. The Government were of the opinion that part of the legal costs claimed by the applicant were completely irrelevant to the present case and in respect of other alleged costs no invoices had been submitted or money paid. The Government asked the Court to reject the applicant ’ s claims for costs and expenses.", "71. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that absence of proof of payment does not necessarily result in the rejection of a claim for costs and expenses that is in itself well-founded (see S. v. Estonia, no. 17779/08, § 55, 4 October 2011, and Krejčíř v. the Czech Republic, nos. 39298/04 and 8723/05, § 137, 26 March 2009). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,444.74 covering costs under all heads.", "C. Default interest", "72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1948 and lives in Tartu.", "A. Historical background", "6. Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as “Molotov-Ribbentrop Pact”), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. Interrupted by the German occupation in 1941-1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991 (see Kolk and Kislyiy v. Estonia (dec.), nos. 23052/04 and 24018/04, ECHR 2006 ‑ I, and Penart v. Estonia (dec.), no. 14685/04, 24 January 2006 ). After the independence of the Republic of Estonia was restored on 20 August 1991, Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over the Soviet armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonia and the conditions under which they could reside temporarily in Estonia. Under the terms of the treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in active service with the Russian armed forces (see Nagula v. Estonia (dec.), no. 39203/02, ECHR 2005 ‑ XII (extracts); Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006; and Dorochenko v. Estonia (dec.), no. 10507/03, 5 January 2006).", "7. After the regaining of independence Estonia carried out comprehensive legislative reforms for transition from a totalitarian regime to a democratic system and for rectifying injustices. On 28 June 1992 the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) and the Constitution of the Republic of Estonia Implementation Act ( Eesti Vabariigi põhiseaduse rakendamise seadus ) were adopted by a referendum. The Constitution Implementation Act provided that until 31 December 2000, persons standing in elections or seeking certain high positions, such as those of ministers or judges, or any other elected or appointed position in an agency of the national government or a local authority, had to take a written oath of conscience ( süümevanne ) affirming that they had not been in the service or agents of security, intelligence or counterintelligence services of countries which had occupied Estonia. On 8 July 1992 the Riigikogu (the Estonian Parliament) adopted the Procedure for Taking Oath of Conscience Act ( Seadus süümevande andmise korra kohta ).", "8. In order to ensure national security of the Republic of Estonia, persons having been in the service of or having collaborated with the security, intelligence or counterintelligence services of the countries which had occupied Estonia, had to be ascertained. Such a security authority was first and foremost the Committee for State Security of the USSR and its local arm, the Estonian SSR Committee for State Security (also known as “the KGB”). However, the most sensitive of the KGB materials were removed from Estonia and the government committee set up by the Estonian authorities to liquidate the KGB managed to get hold of documents of mainly historical value.", "9. On 10 March 1994 the Riigikogu adopted the Procedure for the Collection, Recording, Preservation and Use of the Materials of Other States ’ Security and Intelligence Authorities which Have Operated in Estonia Act ( Eestis tegutsenud teiste riikide julgeoleku- ja luureorganite materjalide kogumise, arvelevõtmise, säilitamise ja kasutamise korra seadus ) which established the obligation to hand over for preservation to the Estonian National Archives the materials in question.", "10. On 1 June 1994 the Riigikogu Temporary Committee for the Investigation of the Activities of the Security and Intelligence Authorities of the USSR and Other States in Estonia submitted to the Riigikogu a draft decision proposing the Government to initiate, by 15 September 1994 at the latest, a Draft Act on the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia. On 28 June 1994 the Riigikogu adopted the proposed decision.", "11. As the Government did not submit the Draft Act by the time requested by the Committee, on 5 December 1994 the Riigikogu Temporary Committee itself decided to initiate the Draft Act in issue.", "12. On 6 February 1995 the Riigikogu passed the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) (“the Diclosure Act”). According to the Disclosure Act, the persons in question were to be registered by the Estonian Internal Security Service ( Kaitsepolitseiamet ). Information about such persons ’ service or co-operation was to be made public unless they themselves made a pertinent confession about that to the Estonian Internal Security Service within one year from the entry into force of the Disclosure Act. The Disclosure Act entered into force on 28 March 1995.", "13. According to the information provided by the Government, 1,153 persons submitted a confession under the Disclosure Act by 1 April 1996. For the first time, names of the persons subject to disclosure were published in Riigi Teataja Lisa (Appendix to the State Gazette) on 30 January 1997. From 1997 until 2009, on thirteen occasions, the names of a total of 647 persons were published in Riigi Teataja Lisa. Among them there were 42 drivers, of whom at least seven had advanced to higher positions during their career in the KGB.", "14. On 18 June 2002 the Riigikogu made a statement declaring the Soviet communist regime which in its view committed crimes – including genocide, war crimes and crimes against humanity – during the occupation, as well as the bodies of the Soviet Union, such as NKVD, NKGB, KGB and others, which forcefully executed the regime, and their activities to be criminal. The statement emphasised that this did “not mean collective liability of their members and employees. Each individual ’ s liability [was determined by] his or her specific activities, an ethical assessment of which should be made first and foremost by each person himself or herself”. Riigikogu also noted that the threat of the repetition of such crimes had not disappeared and that the regimes relying on extremist ideologies threatened the World peace and free development of the people until their criminal nature was fully disclosed and condemned.", "15. On 17 December 2003 the Riigikogu passed the Persons Repressed by Occupying Powers Act ( Okupatsioonirežiimide poolt represseeritud isiku seadus ) aimed at alleviating the injustices committed against persons who were unlawfully repressed by the States that occupied Estonia between 16 June 1940 and 20 August 1991. Certain pension rights and other benefits were foreseen to the persons who fell under the Act in question.", "B. Publication of information about the applicant ’ s employment by the KGB", "16. From 1980 to 1991 the applicant was employed as a driver by the Committee for State Security.", "17. On 27 February 2004 the applicant was invited to the Estonian Internal Security Service and presented with a notice according to which he had been registered pursuant to the Disclosure Act. It was stated in the notice that a pertinent announcement would be published in Riigi Teataja Lisa and the text of the announcement was set out. Furthermore, it was mentioned in it that the person concerned had the right, within one month of the receipt of the notice, to have access to the documents proving his or her links to the security, intelligence of counterintelligence organisations, and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The applicant signed a document stating that he had received the notice.", "18. According to the applicant his request to be shown the material gathered in respect of him was not met whereas he was told that he could lodge a complaint against the notice with an administrative court within one month. According to the Government the applicant ’ s argument, that he could not examine the documents on which the notice had been based, was declaratory, unproved and wrong.", "19. On 16 June 2004 an announcement was published both in the paper and Internet version of Riigi Teataja Lisa. It read as follows:", "“ANNOUNCEMENTS OF THE ESTONIAN INTERNAL SECURITY SERVICEabout persons who have served in or co-operated with security organisations or intelligence or counterintelligence organisations of armed forces of States which have occupied Estonia", "Hereby the Estonian Internal Security Service announces that pursuant to section 5(1) of the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act the Estonian Internal Security Service has registered the following persons.", "...", "Announcement no. 695 of 27.02.2004", "MIHHAIL SÕRO (born on 12.12.1948, Estonia, Põlva County, Värska rural municipality) – AS Tarbus bus driver", "1. Committee for State Security of the Estonian SSR[,] Tartu department – driver[,] 12.08.1980 – 1989", "2. Committee for State Security of the Estonian SSR[,] Põlva branch – driver[,] 1989 – 05.11.1991”", "20. In the Internet version, which had legal force equal to that of the paper version, the announcements of the Estonian Internal Security Service were published under the following section title: “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa .”", "21. The applicant raised the issue with the Chancellor of Justice ( Õiguskantsler ) who, having analysed the matter and sought additional information from the Estonian Internal Security Service, addressed the Riigikogu with a report, dated 12 July 2005, where he concluded that the Disclosure Act was unconstitutional in so far as all employees of the security and intelligence organisations were made public with no exception made in respect of the personnel who merely performed technical tasks not related to the main functions of the organisations. He further found that the Disclosure Act was unconstitutional in that the person ’ s place of employment at the time of the publication of the announcement was also made public.", "22. The Constitutional Law Committee of the Riigikogu disagreed with the assessment of the Chancellor of Justice.", "23. After the applicant had again addressed the Chancellor of Justice, the latter replied by a letter of 31 January 2006 that he had not deemed necessary to initiate constitutional review proceedings in respect of the Disclosure Act. The Chancellor of Justice had in the meantime been briefed by the Estonian Internal Security Service about the practice according to which the persons who had performed merely technical tasks were not being made public.", "C. Court proceedings initiated by the applicant", "24. On 20 June 2006 the applicant lodged a complaint with the Tallinn Administrative Court. He asked that the court declare the text published in Riigi Teataja Lisa unlawful and oblige the Estonian Internal Security Service delete the word okupant (occupier, invader) and add the word endine (former). In that way the information that he had been a foreign invader occupying Estonia from 1980-1991 could be disproved. He noted that he had never been accused of or provided with any evidence showing that he had participated in the forceful occupation of the Estonian territory as a member of the armed forces of a foreign country or participated in the exercise of the occupation powers. He disagreed having been associated with the crimes committed by the employees of security organisations of the Nazi Germany and the Stalinist regime and argued that a person could only be held individually accountable for his own acts but that principle was ignored by the Disclosure Act. He asserted that he had only worked for the Committee for State Security as a driver and knew nothing about gathering information. As a result of the publication of the announcement the applicant had lost his work and he had been a victim of groundless accusations by third parties. He was being called an occupier ( okupant ) and an informant ( koputaja ) and it was being said that “he [was] not a proper man” if the Estonian Internal Security Service dealt with him.", "25. At the Tallinn Administrative Court hearing on 15 January 2007 the applicant submitted, inter alia, that he had in the meantime changed his employment but was, at the time of the court hearing, back in the bus company where he had previously worked.", "26. By a judgment of 29 January 2007 the Tallinn Administrative Court dismissed the applicant ’ s complaint. It noted that the applicant had failed to contest the notice which he had been presented with by the Estonian Internal Security Service on 27 February 2004. Accordingly, the notice had been made public pursuant to the Disclosure Act. The Administrative Court concluded that the publication of the announcement had become possible because of the applicant ’ s inaction as he had failed to contest the notice and disprove the information it contained. The information contained in the published announcement corresponded to the information which the applicant had previously been presented with.", "27. The Administrative Court further verified that in the Internet version of Riigi Teataja Lisa the announcements of the Estonian Internal Security Service were published under the section title “Copies of announcements of the Estonian Internal Security Service about persons who have served in intelligence or counterintelligence organisations of the former USSR to be published in Riigi Teataja Lisa ” and, thus, the notion “former” ( endine ) also applied to the announcement concerning the applicant. Furthermore, the word “occupier” ( okupant ) had not been used in respect of the applicant. The Administrative Court did not establish that the publication of the announcement was unlawful or violated the applicant ’ s rights.", "28. The Administrative Court found that the applicant ’ s request for the review of the constitutionality of the Disclosure Act would have been pertinent in case he would have contested the notice issued on 27 February 2004. The applicant had been informed that pursuant to the Disclosure Act he had the right, within a month, to familiarise himself with the documents and contest the information contained in the notice before the Estonian Internal Security Service or a court. Thus, the law had given him a possibility to immediately counter the information gathered. If a court then would have reviewed the issue of the constitutionality of the Disclosure Act, the Estonian Internal Security Service would have been obliged to proceed with the publishing or to refrain from it, depending on the results of the review. In the circumstances at hand, however, the announcement had been published and the notice no. 695 of 27 February 2004, which it had been based on, was lawful.", "29. The Administrative Court also noted that the applicant had not produced any evidence to disprove the information published. The applicant himself had confirmed that he had worked as a driver of the former Committee for State Security of the Estonian SSR.", "30. The applicant appealed arguing that after the publication of the announcement he had become a victim of groundless mocking and had to quit his work. He had sustained substantial pecuniary and non-pecuniary damage. He pointed out that the notice of 27 February 2004 had not caused him any negative results. Rather, what had been of importance was the publication of the announcement in Riigi Teataja Lisa on 16 June 2004. He maintained that in the published announcement he had been depicted as an occupier of the Estonian State. It remained unclear, however, which acts he had committed against Estonia and in what way these acts had been criminal. His work as a driver of the Committee for State Security had been of a merely technical nature and had in fact not been directed against the Estonian State.", "31. By a judgment of 22 November 2007 the Tallinn Court of Appeal dismissed the appeal. The Court of Appeal considered that the fact that a person did not contest the initial notice before its publication did not deprive him of a right to lodge a complaint against the publication of the announcement in Riigi Teataja Lisa. It also considered that the implementation of the Disclosure Act could in some circumstances involve indirect interference with a person ’ s fundamental rights caused by the acts of third parties as the person ’ s reputation could be damaged as a result of the disclosure of his relations with the Soviet security organisations. However, in the case in question the interference was in conformity with the Constitution.", "32. The Court of Appeal found as follows:", "“10. ... The Chancellor of Justice established in his proceedings that according to the defendant ’ s administrative practice information about the merely technical employees was not, by way of exception, disclosed. According to the assessment of the Court of Appeal, the [applicant] cannot demand an exception to be made in respect of him. According to the assessment of the defendant, drivers of the security and intelligence organisations were related to the performance of the organisations ’ substantial tasks ... The court has no ground to take a different position in this question relating to the security risks. The Estonian State cannot establish decades later with absolute certainty whether a specific driver performed merely technical or also substantial tasks. Thus, one has to proceed from the possibility that a KGB driver may also pose a potential security risk and the disclosure of the information about him may be in the public interests. Therefore, it is proportionate to apply the [Disclosure Act] in respect of the persons who worked as drivers in the security or intelligence organisations. Thereby account must be taken of the fact that the publication of the announcement and the indirect interferences caused by that were not inevitably foreseen by law; the [applicant] could have prevented these consequences by making a confession pursuant to ... the [Disclosure Act].”", "33. In respect of the applicant ’ s complaint about the use of the language in the text of the announcement the Court of Appeal noted that the word “to occupy” had not referred to the applicant but rather to a State (former Soviet Union). Nor had the applicant been treated as a person co-operating with the Committee for State Security (an informant or a sneak) but rather as its staff member. In the announcement the period of the applicant ’ s employment had also been indicated. There was nothing to imply that he was accused of continuous contact with an intelligence or security organisation of a foreign country. The defendant was not responsible for arbitrary conclusions that third parties may have drawn from the announcement. Lastly, the Court of Appeal considered that it was proportionate to publish the current places of work of the persons concerned, inter alia, in order to avoid confusion in the public that might otherwise arise in respect of persons with identical or similar names.", "34. On 14 February 2008 the Supreme Court declined to hear an appeal lodged by the applicant.", "i. demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;", "ii. decentralisation, especially at local and regional levels and within state institutions;", "iii. demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society;", "iv. debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens.", "6. This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one ’ s actions.", "7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.", "8. The Assembly recommends that the prosecution of individual crimes go hand-in-hand with the rehabilitation of people convicted of \"crimes\" which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force.", "9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.", "...", "11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.", "12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.", "13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process ... ”", "42. On 25 January 2006 the PACE adopted Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes. It reads, in so far as relevant, as follows:", "“ 2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.", "3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.", "...", "5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).", "6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.", "7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.", "8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.", "...", "12. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes.", "13. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.", "14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.”", "I. whereas from the outset European integration has been a response to the suffering inflicted by two world wars and the Nazi tyranny that led to the Holocaust and to the expansion of totalitarian and undemocratic Communist regimes in Central and Eastern Europe, as well as a way of overcoming deep divisions and hostility in Europe through cooperation and integration and of ending war and securing democracy in Europe,", "J. whereas the process of European integration has been successful and has now led to a European Union that encompasses the countries of Central and Eastern Europe which lived under Communist regimes from the end of World War II until the early 1990s, and whereas the earlier accessions of Greece, Spain and Portugal, which suffered under long ‑ lasting fascist regimes, helped secure democracy in the south of Europe,", "K. whereas Europe will not be united unless it is able to form a common view of its history, recognises Nazism, Stalinism and fascist and Communist regimes as a common legacy and brings about an honest and thorough debate on their crimes in the past century,", "...", "3. Underlines the importance of keeping the memories of the past alive, because there can be no reconciliation without truth and remembrance; reconfirms its united stand against all totalitarian rule from whatever ideological background;", "4. Recalls that the most recent crimes against humanity and acts of genocide in Europe were still taking place in July 1995 and that constant vigilance is needed to fight undemocratic, xenophobic, authoritarian and totalitarian ideas and tendencies;", "5. Underlines that, in order to strengthen European awareness of crimes committed by totalitarian and undemocratic regimes, documentation of, and accounts testifying to, Europe ’ s troubled past must be supported, as there can be no reconciliation without remembrance;", "6. Regrets that, 20 years after the collapse of the Communist dictatorships in Central and Eastern Europe, access to documents that are of personal relevance or needed for scientific research is still unduly restricted in some Member States; calls for a genuine effort in all Member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies, although steps must be taken to ensure that this process is not abused for political purposes;", "...", "9. Calls on the Commission and the Member States to make further efforts to strengthen the teaching of European history and to underline the historic achievement of European integration and the stark contrast between the tragic past and the peaceful and democratic social order in today ’ s European Union;", "10. Believes that appropriate preservation of historical memory, a comprehensive reassessment of European history and Europe-wide recognition of all historical aspects of modern Europe will strengthen European integration;", "...", "13. Calls for the establishment of a Platform of European Memory and Conscience to provide support for networking and cooperation among national research institutes specialising in the subject of totalitarian history, and for the creation of a pan-European documentation centre/memorial for the victims of all totalitarian regimes;", "...", "15. Calls for the proclamation of 23 August as a Europe-wide Day of Remembrance for the victims of all totalitarian and authoritarian regimes, to be commemorated with dignity and impartiality;", "16. Is convinced that the ultimate goal of disclosure and assessment of the crimes committed by the Communist totalitarian regimes is reconciliation, which can be achieved by admitting responsibility, asking for forgiveness and fostering moral renewal ... ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "35. On 6 February 1995 the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) was passed. It entered into force on 28 March 1995.", "36. The Act provided for registration and disclosure of persons who had served in or co-operated with certain security or intelligence organisations of Nazi Germany and Soviet Union, enumerated in the Disclosure Act, between 17 June 1940 and 31 December 1991 (sections 1 to 3). Section 4 of the Disclosure Act stipulated that it applied to staff members of the security or intelligence organisations as well as to persons who had co-operated with these organisations and set forth criteria as to what was to be deemed as the co-operation in question.", "37. Section 5 provided that the persons concerned were registered on the basis of a personal confession submitted to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act or on the basis of other available evidence.", "38. In case the person concerned did not make a personal confession or knowingly provided false information, information about his service in or co-operation with the security or intelligence organisations was to be made public (sections 6 to 8). Conversely, persons who submitted a personal confession within one year of the entry into force of the Disclosure Act without providing false information were, as a rule, not made public (sections 7(2) and 8(1)) and information concerning them was classified as state secret for fifty years (section 6 of the State Secrets Act ( Riigisaladuse seadus )).", "39. Before presentation of the notice for publication the person concerned was notified of the text thereof by the Estonian Internal Security Service (section 8(2) of the Disclosure Act). He or she had the right, within one month of receipt of the notice, to have access to the pertinent documents in the Estonian Internal Security Service and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The burden of proof of the person ’ s service in security or intelligence organisations or co-operation therewith lied with the Estonian Internal Security Service (section 8(4)).", "40. In a judgment of 31 January 2003 (case no. 3-257/2003) the Tallinn Administrative Court granted a complaint against a notice of the Estonian Internal Security Service. It found that the complainant ’ s employment in the NKVD ( People ’ s Commissariat for Internal Affairs, a predecessor of the KGB) had not been proven by proper evidence. The court ordered the Estonian Internal Security Service to delete the data on the complainant from its register. This judgment was upheld by the Tallinn Court of Appeal judgment of 8 December 2003 (case no. 2-3/394/2003). The Court of Appeal noted that the burden of proof in the cases falling under the Disclosure Act lied with the Estonian Internal Security Service and emphasised that registration and disclosure of the persons in question could not be based on mere suspicions.", "III. RELEVANT COUNCIL OF EUROPE DOCUMENTS", "41. On 27 June 1996 the Parliamentary Assembly of the Council of Europe ( PACE ) adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems. It reads, in so far as relevant:", "“ 1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over-regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome.", "...", "3. The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of the rule of law, and organised crime instead of human rights. At worst, the result could be the \"velvet restoration\" of a totalitarian regime, if not a violent overthrow of the fledgling democracy. In that worst case, the new undemocratic regime of a bigger country can present also an international danger for its weaker neighbours. The key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.", "4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures.", "5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of:", "IV. RELEVANT EUROPEAN UNION MATERIAL", "43. On 23 September 2008 the European Parliament adopted a Declaration on the proclamation of 23 August as European Day of Remembrance for Victims of Stalinism and Nazism. The Declaration reads as follows:", "“ The European Parliament,", "...", "D. whereas the influence and significance of the Soviet order and occupation on and for citizens of the post-Communist States are little known in Europe,", "...", "1. Proposes that 23 August be proclaimed European Day of Remembrance for Victims of Stalinism and Nazism, in order to preserve the memory of the victims of mass deportations and exterminations, and at the same time rooting democracy more firmly and reinforcing peace and stability in our continent ... ”", "44. On 2 April 200 9 the European Parliament adopted a Resolution on European conscience and totalitarianism. The Resolution reads as follows:", "“ The European Parliament,", "...", "– having regard to the Truth and Justice Commissions established in various parts of the world, which have helped those who have lived under numerous former authoritarian and totalitarian regimes to overcome their differences and achieve reconciliation,", "...", "A. whereas historians agree that fully objective interpretations of historical facts are not possible and objective historical narratives do not exist; whereas, nevertheless, professional historians use scientific tools to study the past, and try to be as impartial as possible,", "...", "F. whereas the memories of Europe ’ s tragic past must be kept alive in order to honour the victims, condemn the perpetrators and lay the foundations for reconciliation based on truth and remembrance,", "G. whereas millions of victims were deported, imprisoned, tortured and murdered by totalitarian and authoritarian regimes during the 20th century in Europe; whereas the uniqueness of the Holocaust must nevertheless be acknowledged,", "H. whereas the dominant historical experience of Western Europe was Nazism, and whereas Central and Eastern European countries have experienced both Communism and Nazism; whereas understanding has to be promoted in relation to the double legacy of dictatorship borne by these countries,", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "45. The applicant complained that his right to respect for his private and family life had been breached owing to the publication of the information that he had worked as a driver of the KGB. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "46. The Government contested that argument.", "A. Admissibility", "1. The parties ’ submissions", "47. The Government argued that the applicant had not exhausted domestic remedies. He had not contested the notice of 27 February 2004 of the Estonian Internal Security Service neither before the Service nor before an administrative court. Only by contesting the notice could he have prevented publication of the announcement and disclosure of the fact of his service in the KGB. The Government additionally suggested that the fact that the announcement had already been published by the time the court proceedings took place, and that the Chancellor of Justice had expressed his opinion on the matter in the meantime, may have played certain role in the domestic courts ’ assessment of the proportionality of the interference. Although the applicant ’ s subsequent complaint to the administrative courts was admissible, it could not bring along the same consequence as contestation of the notice of 27 February 2004, that is prevention of the disclosure.", "48. The applicant submitted that he had not wished to contest the notice by the Estonian Internal Security Service as the fact of his work in the security department had been known to everyone. Negative consequences for him had occurred several months later when the announcement in which he had been called a person who had occupied Estonia had been published on the Internet.", "2. The Court ’ s assessment", "49. As regards the question whether the applicant was required to contest the notice presented to him by the Estonian Internal Security Service in order to comply with the requirement of exhaustion of domestic remedies, the Court has taken note of the domestic case-law which demonstrates that publication of an announcement in Riigi Teataja Lisa could be prevented by contesting the notice in question (see paragraph 40 above). The Court observes, however, that the present case differs from the one referred to above in that in the present case the applicant did not dispute the fact of his service in the KGB. It would appear that the question of whether the publication amounted to a disproportionate interference with the private life of the person falling under the Disclosure Act could be raised either through challenging the Estonian Internal Security Service ’ s initial notice or the actual publication of the announcement in Riigi Teataja Lisa. The Court notes that in the present case, although the applicant did not use the possibility to contest the notice, the administrative courts nevertheless examined on the merits his complaint against the publication of the announcement. Therefore, the Government ’ s argument about non-exhaustion of domestic remedies must be rejected.", "50. The Court considers that the Government ’ s additional arguments on non-exhaustion (see paragraph 47 above) are not pertinent. Firstly, the argument about the relevance of the fact that the announcement had been published by the time of the court proceedings does not find support in the Court of Appeal ’ s reasoning (see paragraph 31 above). Secondly, as concerns the fact that the opinion of the Chancellor of Justice – according to which the Disclosure Act was not unconstitutional (see paragraph 23 above) – was known to the domestic courts, it is not for the Court to speculate whether the domestic courts would have decided the applicant ’ s case differently if they would have dealt with it before the Chancellor of Justice gave his opinion. In any event, this opinion was not binding on the courts which were independent in deciding the case. Therefore, the Government ’ s additional arguments on non-exhaustion must also be rejected.", "51. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "52. The applicant was of the opinion that in the announcement of the Estonian Internal Security Service published in Riigi Teataja Lisa in 2004 he had been considered as a person who had occupied Estonia whereas in the announcements published later, in 2005, the persons in question had not been referred to as persons who had occupied Estonia but rather as persons who had been in the service of the intelligence organisations of the USSR. He argued that it was unclear on the basis of which evidence he was deemed as an occupier and why he was considered to be dangerous. He submitted that “occupier” ( okupant ) was a word that was understood to refer to a serious crime involving conquering the country with the use of arms and exercising occupation therein. At the time when the applicant had worked as a driver for the security department, the activities of this institution had been supervised by the local Communist Party committee where the Prime Minister of the Republic of Estonia of the time of the submission of the observations had held a position of responsibility.", "53. The applicant had never concealed his employment in the security department. This fact could be seen from his employment record and no employer had had any problems with that. However, after the publication of the announcement on the Internet under the title referring to an “occupier” he was being considered as an occupier, a traitor, a snitch among his colleagues and acquaintances. He was forced to quit his job and lost his income. The applicant considered that it was wrong and offending to call him an occupier.", "(b) The Government", "54. The Government emphasised that it was not in dispute that from 1980 until 1991 the applicant had worked as a driver in the KGB. Furthermore, the interference with the applicant ’ s right to respect for his private life was in accordance with law and it was necessary in a democratic society in the interests of national security, public safety and for the protection of the rights and freedoms of others. The Government pointed out that for the transfer from a totalitarian regime to a democratic system, Estonia took various measures which, in aggregate, had to ensure the development and security of the democratic system. Criminal liability for crimes against humanity and war crimes committed under the totalitarian regime was established and an obligation to take an oath of conscience was introduced for those seeking the highest offices in the country. The Disclosure Act dealt with the persons who had not committed any crimes but had been employed by or collaborated with the intelligence or counterintelligence authorities of the States which had occupied Estonia. It was found that such persons had to come to terms with their past and not to try to forget, conceal or be silent about it. There was also a significant public interest in the publicity of information relating to the past; this had to guarantee transparency and clarity as well as overall internal peace in the society. Obtaining complete information about the members and agents of the security and intelligence authorities which had operated on the territory of Estonia was also important for the protection of independence and security of the Republic of Estonia. Estonia was lacking the relevant information; such information, including the lists of persons who had worked in the KGB, was in the hands of foreign States. There could be attempts to recruit former staff of the security authorities and make them perform security or intelligence tasks, or they could be subject to blackmailing. Such situation was dangerous and damaging for Estonia. The Government referred to recent cases where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason.", "55. The Government also pointed out that persons falling under the Disclosure Act could express their loyalty to the Republic of Estonia by submitting a confession, in which case their data was not disclosed. Moreover, in order to secure protection to the persons concerned, the disclosure was subject to prior judicial review. As regards the question whether it was necessary to also disclose information about persons who, as the applicant, had worked as drivers, the Government argued that the formal job title was not decisive as the drivers could also perform other tasks, especially in rural regions where the applicant had worked. There had even been separate positions formally combining the tasks of the driver with other functions, such as “driver-intelligence officer” dealing with secret surveillance, and for some of the drivers the driver ’ s position had been a step for advancement to the next, “more important” position, like that of an operative agent or intelligence officer. The Government also argued that the Estonian Internal Security Service, having regard to their limited resources, focused on cases which were more important and which could involve real danger to the Republic of Estonia.", "2. The Court ’ s assessment", "56. The Court considers that the publication of the information about the applicant ’ s service in the KGB concerned facts about his personal past that were made available to the public and also affected his reputation. It therefore constituted an interference with his right to respect for his private life (compare Sidabras and Džiautas v. Lithuania, nos. 55480 /00 and 59330/00, §§ 42-50, ECHR 2004 ‑ VIII).", "57. The Court further notes that the lawfulness of the interference was not in dispute between the parties. It observes that the interference in question was based on the Diclosure Act that had been adopted by the Riigikogu and published according to the rules in force. Nor has it been disputed that the text of the law was sufficiently clear to enable those affected to foresee the consequences it entailed. The law ’ s accessibility and public awareness of it is also confirmed by the information provided by the Government according to which 1,153 persons submitted a confession to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act in order not to have information about their service in or collaboration with the security and intelligence organisations published. Thus, the Court is satisfied that the impugned interference was lawful for the purposes of the second paragraph of Article 8 of the Convention.", "58. As regards the purpose of the interference, the Court notes that the registration and disclosure of the former employees and collaborators of the security and intelligence organisations of the regimes that had operated in Estonia were part of the measures taken to ensure the transparency, clarity and internal peace in the society, as well as to avoid security threats. The Court has also taken note of the cases referred to by the Government where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason (see paragraph 54 above). The Court concludes that the interference in question pursued legitimate aims within the meaning of paragraph 2 of Article 8, namely the protection of national security and public safety, the prevention of disorder as well as well as the protection of the rights and freedoms of others (compare, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 54-55 ).", "59. Accordingly, the Court proceeds to the examination of whether the measure was “necessary in a democratic society”. The Court observes in this connection that there is no uniform approach among High Contracting Parties as to the measures to dismantle the heritage of former communist totalitarian systems (see Matyjek v. Poland (dec.), no. 38184/03, § 36, ECHR 2006 ‑ VII ). Different measures have been applied and their application has given rise to a number of cases before the Court concerning a variety of issues such as restrictions on the persons ’ eligibility to stand for elections (see Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006 ‑ IV, and Ādamsons v. Latvia, no. 3669/03, 24 June 2008) or to their employment (see Vogt v. Germany, 26 September 1995, Series A no. 323; Volkmer v. Germany (dec.), no. 39799/98, 22 November 2001; Sidabras and Džiautas, cited above; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, 7 April 2009) as well as lack of access to the information on the basis of which the persons ’ collaboration with former secret services was established (see Matyjek v. Poland, no. 38184/03, 24 April 2007) or reduction of pensions of the persons concerned (see Cichopek and Others v. Poland (dec.) no. 15189/10 and other applications, 14 May 2013). Against this background, the Court turns to the proportionality analysis of the impugned measures in the present case.", "60. The Court reiterates that in a number of previous cases it has criticised the lack of individualisation of the impugned measures. Thus, in Ādamsons it considered that the group of persons – former KGB agents – to which the restrictions to stand for elections applied, had been designed in a too broad manner without having regard to the period of service of the persons concerned, specific tasks assigned to them or their individual behaviour (see Ādamsons, cited above, § 125). Similarly, in Žičkus the lack of differentiation in domestic law between different levels of former involvement with the KGB was pointed out by the Court (see Žičkus, cited above, § 33). In addition to the lack of differentiation in domestic law as regards the premises for the application of the restrictions, the Court has also addressed the issue of broadly fashioned restrictions applied to the individuals concerned. Thus, in Sidabras and Džiautas, it noted that with the exception of references to “lawyers” and “notaries”, domestic law contained no definition of the specific private sector jobs, functions or tasks which the applicants were barred from holding (see Sidabras and Džiautas, cited above, § 59).", "61. The Court is of the view that the above considerations also apply to the present case. It notes that the Disclosure Act made no distinction between different levels of former involvement with the KGB. It is true that under the applicable procedure the applicant was informed beforehand of the text of the announcement to be published, and given a possibility to contest the factual information contained in it. However, there was no procedure put in place to assess the specific tasks performed by individual employees of the former security services in order to differentiate the danger they could possibly pose several years after the termination of their career in these institutions. The Court is not convinced that there existed a reasonable link between the legitimate aims sought by the enactment of the Disclosure Act and the publication of information about all former employees of the former security services including drivers, as in the applicant ’ s case, regardless of the specific function they performed in these services.", "62. The Court also notes that although the Disclosure Act came into force three and a half years after Estonia had declared its independence on 20 August 1991, the publication of the information about the former employees of the security services was stretched over several years. Thus, in the applicant ’ s case the information in question was only published in 2004 – almost thirteen years after the restoration of the Estonian independence. The Court is of the opinion that any threat the former servicemen of the KGB could initially pose to the newly created democracy must have considerably decreased with the passage of time. It notes that it does not appear from the file that any assessment of the possible threat posed by the applicant at the time of the publication of the information was carried out (compare Žičkus, loc. cit. ).", "63. Lastly, the Court observes that the Disclosure Act in itself did not impose any restrictions on the applicant ’ s employment. Nevertheless, according to the applicant he was derided by his colleagues and forced to quit his job. The Court considers that even if such a result was not sought by the Disclosure Act, it is nevertheless indicative of the seriousness of the interference with the applicant ’ s right to respect for his private life.", "64. The foregoing considerations are sufficient to enable the Court to conclude that the applicant ’ s right to respect for his private life was subject to a disproportionate interference in the present case.", "There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "65. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "66. The applicant claimed 2,556 euros (EUR) – loss of his four months ’ salary – in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage.", "67. The Government argued that it had not been proven that the applicant had been forced to quit his work, or that he had lost his income. In respect of non-pecuniary damage, the Government were of the opinion that as the Convention had not been violated, there was no basis for awarding any compensation. In the event that the Court found a violation, such a finding itself would constitute sufficient just satisfaction. If the Court decided to award monetary compensation, the Government left it to the Court to determine a reasonable sum in non-pecuniary damages.", "68. The Court considers that the applicant has not submitted any proof to determine the sum of the alleged pecuniary damage. It therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "B. Costs and expenses", "69. The applicant also claimed EUR 1,508.65 for the costs and expenses incurred before the domestic authorities and before the Strasbourg Court.", "70. The Government were of the opinion that part of the legal costs claimed by the applicant were completely irrelevant to the present case and in respect of other alleged costs no invoices had been submitted or money paid. The Government asked the Court to reject the applicant ’ s claims for costs and expenses.", "71. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that absence of proof of payment does not necessarily result in the rejection of a claim for costs and expenses that is in itself well-founded (see S. v. Estonia, no. 17779/08, § 55, 4 October 2011, and Krejčíř v. the Czech Republic, nos. 39298/04 and 8723/05, § 137, 26 March 2009). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,444.74 covering costs under all heads.", "C. Default interest", "72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1923 and lives in Vienna.", "Background to the case", "7. The applicant is a survivor of the Holocaust. In 1940 he was arrested by the SS during a raid, following which he was subjected to forced labour by the Nazi regime. Subsequently, he was deported to the Mauthausen concentration camp, and was liberated from its Gusen II sub-camp in May 1945.", "8. In its July/August 2015 issue, the right-wing periodical Aula published an article entitled “The liberated from Mauthausen as mass murderers” (“ Mauthausen-Befreite als Massenmörder ”; hereinafter “the 2015 article”). It contained, among other things, the following passages:", "“The fact that a not inconsiderable number of prisoners freed from Mauthausen became a plague for the people is deemed proved by the judiciary and is nowadays only disputed by concentration camp fetishists. ...", "[O]n 7 May [1945] Mauthausen and Gusen were under the control of the Americans. All of a sudden, 18,000 registered prisoners were free, in addition to an unknown number of unregistered prisoners. Robbing and plundering, murdering and defiling, the criminals plagued the country as it suffered from the ‘ liberation ’ [from the Nazi regime].”", "German original:", "“ Die Tatsache, dass ein nicht unerheblicher Teil der befreiten Häftlinge aus Mauthausen den Menschen zur Landplage gereichte, gilt für die Justiz als erwiesen und wird heute nur noch von KZ-Fetischisten bestritten. ...", "[A]m 7. Mai [1945] war Mauthausen samt Gusen in amerikanischer Hand. Auf einen Schlag waren über 18.000 registrierte Häftlinge frei, noch dazu eine unbekannte Anzahl nicht erfaßter Insassen. Raubend und plündernd, mordend und schändend plagten die Kriminellen das unter der ‘ Befreiung ’ [vom NS-Regime] leidende Land. ”", "9. Because of this article, an Austrian member of parliament from the Green Party ( Die Grünen ), H.W., submitted a statement of facts to the Graz public prosecutor ’ s office ( Staatsanwaltschaft ) in September 2015, requesting an investigation into whether the text of the article amounted to a violation of the National Socialism Prohibition Act ( Verbotsgesetz ). The investigations launched in respect of the author of the article, M.W.D., for possible offences under the National Socialism Prohibition Act, libel and false suspicion (Article 297 of the Criminal Code) and incitement to hatred (Article 283 of the Criminal Code), were ultimately discontinued by the public prosecutor ’ s office, with the following reasoning, inter alia :", "“According to the [dictionary], the term ‘ Landplage ’ [literally ‘ plague on the country ’ ] is to be understood as a plague that represents considerable nuisance in vast areas and causes great damage. It is understandable that the release of several thousand people from the Mauthausen concentration camp represented a nuisance to the areas affected in Austria. Since, in addition to the predominantly Jewish camp inmates, those liberated also included prisoners who had been deposited in Mauthausen because of violent and property-related offences, it cannot be ruled out that in the context of the liberation criminal acts ... were committed by those who were liberated. ... The constituent element of the offence of false suspicion ... is therefore not fulfilled.”", "German original:", "“ Unter dem ... verwendeten Begriff ‘ Landplage ’ ist laut Duden eine Plage, die in weiten Gebieten eine große Belästigung darstellt und durch die großer Schaden entsteht, zu verstehen. Es ist nachvollziehbar, dass die Freilassung mehrerer tausend Menschen aus dem Konzentrationslager Mauthausen eine Belästigung für die betroffenen Gebiete Österreichs darstellte. Da zu den Befreiten neben den überwiegend jüdischen Lagerinsassen, auch aufgrund von Gewalt- und Eigentumsdelikten in Mauthausen deponierte Häftlinge zählten, kann auch nicht ausgeschlossen werden, dass im Rahmen der Befreiung strafbare Handlungen ... von Befreiten begangen wurden. ... Das Tatbestandsmerkmal der falschen Verdächtigung ... ist daher nicht erfüllt. ”", "10. This reasoning prompted the same member of parliament to submit a parliamentary question ( parlamentarische Anfrage ) to the Minister of Justice. In his answer of 25 March 2016 the Minister explained that the termination of the proceedings had ultimately corresponded to the factual and legal situation. However, he criticised the formulation of the reasons given for discontinuing the investigation.", "11. In February 2016 the same periodical published another article by the same author entitled “The greatest rogue in the whole country is, and will always be, the informer” (“ Der größte Lump im ganzen Land ist und bleibt der Denunziant ”; hereinafter “the 2016 article”). It was directed against the parliamentarian H.W. The author reported on the discontinuation of the criminal proceedings against him, summarised the 2015 article, and repeated the impugned statements verbatim (see paragraph 8 above). He concluded that the investigation “was crushed by the objectivity of the public prosecutor ’ s office” and discontinued because of the absence of a criminal offence.", "12. The Austrian Press Council ( Österreichischer Presserat ) issued a decision on 30 March 2016 (GZ 2016/S 002 – III), in which it concluded that the publication of the 2015 article “The liberated from Mauthausen as mass murderers” constituted a grave violation of section 7 (protection against libel and discrimination) of the Code of Ethics of the Austrian Press. It found as follows:", "“... The Chamber finds particularly reprehensible the passage which first of all refers to all those liberated from Mauthausen and immediately afterwards states that ‘ robbing and plundering, murdering and defiling, the criminals plagued the country as it suffered from the ‘ liberation ’.", "The author has evidently aimed to stigmatise concentration camp victims as criminals, similarly to what the Nazi regime tried to do before the end of the Second World War.", "The Chamber considers this to be a perpetrator-victim reversal. The State-organised mass murder that took place in the Mauthausen concentration camp is not mentioned in the article. ...", "The Chamber also views the terms used in the article ‘ concentration camp fetishists ’ ... as extremely critical and as evidence that the author demonstrates a trivialising stance towards the atrocities committed in the Mauthausen concentration camp. ”", "Proceedings concerning the 2015 article", "13. On 30 June 2016 eight former Mauthausen concentration camp prisoners, the daughter of a deceased former Mauthausen prisoner, and a former prisoner at the Theresienstadt concentration camp lodged a civil action under Article 1330 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) in respect of the 2015 article, seeking an interim injunction ( Einstweilige Verfügung ), an injunction ( Unterlassung ), the retraction of the impugned statements and the publication of the retraction. The applicant was not among the claimants.", "14. By a decision of 5 August 2016 the Graz Civil Court ( Landesgericht für Zivilrechtssachen ) granted an interim injunction to secure the claim, in which the defendants (the Aula Publishing Company Ltd ( Verlags GmbH ) and the author of the article, M.W.D.) were obliged to refrain from repeating and/or spreading the impugned statements literally or synonymously, until a final decision had been given.", "15. The interim injunction was upheld by the Graz Court of Appeal ( Oberlandesgericht ) on 7 October 2016, as well as by the Supreme Court ( Oberster Gerichtshof ) in a decision of 29 November 2016. Much of the legal discussion in the domestic proceedings revolved around the question whether the claimants were sufficiently affected by the impugned statements and therefore had locus standi to seek the injunction. The Supreme Court concluded as follows in respect of that issue:", "“In the instant case, those imprisoned by the National Socialist regime because of their faith, their origins or their political views were not only described as ‘ criminals ’ in the impugned article entitled ‘ The liberated from Mauthausen as mass murderers ’, but they were also accused of having committed very serious crimes. If, given this factual situation, the lower courts have concluded that the claimants (resistance fighters and persons persecuted on political or racial grounds, and the heir of a person who was persecuted on racial grounds) were sufficiently affected by the impugned statements ..., and that the statements were not only morally lacking in respect for the victims of National Socialism, but also contained untrue accusations of criminal behaviour which can hardly be surpassed in their intensity, such a conclusion cannot be seen as an incorrect assessment to be addressed by the Supreme Court.”", "German original:", "“ Im vorliegenden Fall wurden im inkriminierten Artikel unter der Überschrift ‘ Mauthausen-Befreite als Massenmörder ’ die vom NS-Regime auch aufgrund ihres Glaubens, ihrer Herkunft oder ihrer politischen Gesinnung inhaftierten Häftlinge nicht nur als ‘ Kriminelle ’ bezeichnet, sondern diesen auch noch pauschal unterstellt, schwerste kriminelle Handlungen begangen zu haben. Wenn die Vorinstanzen bei dieser Sachlage zu der Einschätzung gelangten, dass die Kläger (Widerstandskämpfer bzw. politisch und aus rassischen Gründen Verfolgte bzw. eine Erbin eines aus rassischen Gründen Verfolgten) von den inkriminierten Äußerungen in ausreichendem Maß betroffen sind ..., und es den Vorwürfen nicht nur in moralischer Hinsicht an Respekt vor den Opfern des Nationalsozialismus mangle, sondern es sich um unwahre und an Intensität kaum zu überbietende Vorwürfe von kriminellem Verhalten handle, so ist darin keine vom Obersten Gerichtshof aufzugreifende Fehlbeurteilung zu erblicken. ”", "16. On 14 February 2017 the injunction proceedings were terminated by a court settlement before the Graz Civil Court, by which the defendants undertook, on pain of judicial enforcement, “to henceforth refrain from repeating and/or spreading the literal and/or synonymous assertion that the former prisoners liberated from the Mauthausen concentration camp, its sub-camps or other concentration camps were mass murderers and/or a plague for the population and/or plagued the country by robbing and plundering, murdering and defiling, and committed the most serious crimes”. Moreover, they were obliged to retract the impugned statements and to publish the retraction in the periodical Aula.", "17. The applicant, not having been a party to the civil proceedings, was therefore not a party to the court settlement either.", "Proceedings concerning the 2016 article", "18. In a separate set of proceedings, on 15 July 2016, the applicant and nine of the ten claimants who had been party to the civil proceedings described above (see paragraphs 13-16) brought a claim for compensation against the owner of the periodical Aula and requested publication of a subsequent judgment under section 8a in conjunction with section 6 of the Media Act ( Mediengesetz ) on account of the statements cited in the 2016 article (see paragraph 11 above). They argued that the offences of defamation (Article 111 of the Criminal Code ( Strafgesetzbuch )) and insult (Article 115 of the Criminal Code) had been committed by the impugned media article and that their human dignity had been violated. The 2015 article was not the subject matter of those proceedings.", "19. The claimants argued that in defamation cases against a group of people, it was decisive for the question of their legal standing that every individual belonging to that group was identifiable, even if not named personally – which was the case here. They reiterated that they had all been victims of the National Socialist regime, and had been imprisoned because of their origins, their beliefs or their faith. At the time of their arrest and/or deportation to the concentration camps, some of them had been children, and others political detainees. They had never committed any criminally significant acts, either before their imprisonment or after their liberation from the concentration camps.", "20. The claimants further argued that the author of the 2016 article had not only repeated the impugned statements in a triumphant manner; he had also indicated that he identified with them. Moreover, because of the discontinuation of the criminal investigation, he had received confirmation of his own point of view that the statements had been permissible.", "21. On 9 September 2016 the Graz Regional Criminal Court ( Landesgericht für Strafsachen; hereinafter “the Criminal Court”) dismissed the claim for compensation and the application for publication. The decisive question for the court was whether an average consumer would individually recognise the claimants and would associate the defamatory allegations with them. It reiterated that in May 1945 about 20,000 people had been liberated from Mauthausen. Because of this large number, the court found that it could not be established that the applicants were individually identifiable in the article in question. It held as follows:", "“In principle, statements covering several persons under a collective name can be punishable under Articles 111 and 115 of the Criminal Code and can therefore give rise to a claim under section 6(1) of the Media Act. ... According to the now established and consistent case-law, the size of the group affected by such a statement is decisive, as is whether the recipient of the statement may associate a particular accusation, on the basis of its meaning, with a single member of the group ... If the claimants are counted as part of the group of approximately 18,000 to 20,000 prisoners liberated from Mauthausen, they cannot have legal standing, that is, they cannot be personally affected, since in the case of groups the entitlement of any individual to bring a claim has to be limited where the group comprises more than approximately fifty people ... A group of 18,000 to 20,000 people is in any event too large for each individual member of the group to be entitled to bring the claim.”", "German original:", "“ Grundsätzlich können auch Äußerungen, die mehrere Personen bloß unter einer Kollektivbezeichnung erfassen, strafbar im Sinne der §§ 111 und 115 StGB [Strafgesetzbuch] und somit anspruchsbegründend für § 6 Abs. 1 Medien[gesetz] sein. Die Identifizierbarkeit muss sich aus dem Medienbericht selbst ergeben. ... Nach nunmehr gefestigter und ständiger Judikatur kommt es einerseits auf die Größe des von einer Äußerung betroffenen Kollektivs an aber auch darauf, ob der Erklärungsempfänger den jeweiligen Vorwurf nach dessen Sinngehalt auf ein einzelnes Mitglied des Kollektivs beziehen kann ... Zählt man die Antragsteller als dem Kollektiv der rund 18.000 bis 20.000 befreiten Mauthausen-Häftlinge zugehörig, können sie daher nicht aktivlegitimiert sein, somit nicht persönlich betroffen sein, da bei Kollektiven die Antragsberechtigung jedes Einzelnen dort zu limitieren ist, wo das Kollektiv mehr als etwa 50 Personen umfasst ... Ein Kollektiv von 18.000 bis 20.000 Personen ist nach Ansicht des Erstgerichts jedenfalls zu groß, um die Antragslegitimation jedem einzelnen Mitglied dieses Kollektivs zuzusprechen. ”", "22. In addition, the Criminal Court reiterated that in criminal law, the rule in dubio pro reo (as opposed to the “rule of ambiguity” ( Unklarheitenregel ) under civil law – see paragraph 32 below) meant that if the semantic content ( Bedeutungsinhalt ) of a statement was ambiguous or disputed, the court always had to interpret it in the most favourable way for the accused. It summarised the article in question and, applying this rule, concluded that it did not contain any separate – defamatory – statements, but that it only described, albeit in a highly polemical and sensationalistic manner ( in äußerst polemischer und reißerischer Art und Weise ), the outcome of the investigation by the Graz public prosecutor ’ s office in respect of M.W.D.", "23. The claimants appealed, arguing, in particular, that they had indeed been individually identifiable to readers of the 2016 article. While it was true that initially there had been about 20,000 people liberated from Mauthausen, this group today only consisted of those few former prisoners who were still alive. In addition, all of the claimants were known to the public, some of them in particular because of their activism as Holocaust survivors. It followed that they had legal standing to bring their claim. Moreover, they reiterated that the manner in which the article was written expressed the author ’ s identification with and confirmation of the impugned statements. The average reader of the article would conclude that it was permissible to call all former Mauthausen prisoners “criminals” who had been “robbing and plundering, murdering and defiling” and had constituted a “plague”.", "24. The Graz Court of Appeal ( Oberlandesgericht ) dismissed the appeal in a decision of 21 July 2017. It did not elaborate on the question of the claimants ’ legal standing. The Court of Appeal held that despite the lack of an explanation from the Criminal Court as to which different interpretations had prompted it to have recourse to the principle in dubio pro reo, it agreed – without any further explanation – with the outcome of this legal assessment, namely that the statements in question did not have a separate meaning from those published in the 2015 article, even if the average reader of the periodical Aula were to understand the article as confirming that such statements were not criminally significant.", "25. Moreover, it held that nobody could personally be affected within the meaning of section 6 (1) of the Media Act by the verbatim repetition of a statement (which could have fulfilled the objective factual elements of the offences under Articles 111, 115 and 297 of the Criminal Code) aimed at helping readers to understand the report on the outcome of the criminal proceedings.", "26. On 19 January 2018 the applicant suggested that the Attorney General ( Generalprokuratur ) lodge a plea of nullity for observance of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) with the Supreme Court under Article 23 (1) of the Code of Criminal Procedure ( Strafprozessordnung ) against the Graz Court of Appeal ’ s judgment of 21 July 2017. The Attorney General did not act on that suggestion, but explained the following, inter alia :", "“The fact that the article in question could also have been interpreted differently, to the effect that an opportunity was taken to publish the impugned statements once again, does not lead to a legal presumption of arbitrariness in the sense of manifestly insufficient reasoning ...”", "German original:", "“ Dass auch eine andere Interpretation des gegenständlichen Artikels, nämlich dahin dass darin gleichsam die Gelegenheit genutzt wurde, die inkriminierten Äußerungen ein weiteres Mal zu publizieren, im Bereich des Möglichen gelegen wäre, führt nicht zur rechtlichen Annahme von Willkür im Sinne einer offenbar unzureichenden Begründung ... ”", "RELEVANT DOMESTIC LAW AND PRACTICEProceedings under Article 1330 of the Civil Code", "Proceedings under Article 1330 of the Civil Code", "Proceedings under Article 1330 of the Civil Code", "27. Article 1330 of the Civil Code defines the legal consequences of defamation and regulates the requirements for an action for damages and an injunction. It reads as follows in its relevant parts:", "“(1) Anyone who has suffered material damage or loss of profit as a result of defamation may claim compensation.", "(2) The same applies if anyone disseminates statements of fact which jeopardise another person ’ s credit, income or livelihood and if the untruth of the statement was known or must have been known to him or her. In such a case the public retraction of the statement may also be requested ...”", "28. According to the Supreme Court ’ s case-law, in the case of defamation of a group, individuals belonging to the group are entitled to bring a claim if the group is limited in size. The intensity of an accusation is naturally higher if the group is smaller in size, and is reduced if the group is larger. The decisive factor is whether the individual was personally identifiable (see Supreme Court judgment of 8 November 2001, no. 6 Ob 231/01s).", "29. Pursuant to Article 1490 (2) of the Civil Code, the three-year limitation period under Article 1489 of the Civil Code applies to claims for damages and for an injunction on account of false defamatory statements of fact (Article 1330 (2) of the Civil Code), even if they also damage a person ’ s reputation for the purposes of Article 1330 (1) of the Civil Code (see Supreme Court judgment of 14 May 2009, no. 6 Ob 265/08a).", "30. Pursuant to section 1 of the Enforcement Act ( Exekutionsordnung ), court judgments or settlements concerning complaints under Article 1330 of the Civil Code constitute enforceable legal instruments. Therefore, if one party breaches the injunction agreed upon in a court settlement, the other party to the settlement may request the enforcement of the injunction pursuant to section 355 of the Enforcement Act, which may result in a fine or imprisonment for up to one year in total and/or an obligation to provide collateral for damage resulting from any further violations.", "31. According to the Supreme Court ’ s case-law (see, for example, judgment of 10 April 1991, no. 1 Ob 36/89), claims in respect of non-pecuniary damage sustained as a result of humiliation caused by a media report can only be asserted under the Media Act (see paragraph 37 in fine below), whereas Article 1330 of the Civil Code does not provide for compensation for non-pecuniary damage.", "32. The Supreme Court ’ s case-law further states that the assessment of the semantic content of a statement in civil proceedings is, in general, a question of law ( Rechtsfrage ), which depends on the particular circumstances of the specific case, in particular the concrete wording and the context in which the statement was made (see judgment of 12 October 2006, no. 6 Ob 159/06k). The so-called “rule of ambiguity” ( Unklarheitenregel ) states that what is decisive in establishing the semantic content is how the statements in question are understood within their context by a significant part of the addressees (RIS-Justiz RS0031883, most recently reiterated in the judgment of 27 February 2019, no. 6 Ob 220/18y). In the case of ambiguous statements, the defendant must, in principle, accept the less favourable interpretation (RIS-Justiz RS0079648; see, among many other authorities, Supreme Court judgment of 22 September 2015, 4 Ob 127/15b ). However, the application of the “rule of ambiguity” has to be weighed against the basic right to freedom of expression (judgment of 20 October 2009, 4 Ob 132/09d).", "Proceedings under the Media Act", "33. In cases of alleged violations of personality rights, sections 6 et seq. of the Media Act regulate an affected person ’ s entitlement to compensation from the owners of media publications in which the violation of personality rights occurred. Section 6 (1) of the Media Act reads as follows:", "“ If the objective factual elements [ objektiver Tatbestand ] of the offences of defamation, insult, ridicule or false accusation are fulfilled by media content, the person affected shall be entitled to claim compensation from the media owner for the prejudice suffered. The amount of the damage has to be assessed on the basis of the extent and the consequences of the publication, and in particular also the manner and the extent of the dissemination of the media content; the preservation of the media owner ’ s economic existence must be taken into account. The amount of the compensation may not exceed 20,000 euros, and in cases of false accusation or of defamation with particularly serious consequences [it may not exceed] 50,000 euros.”", "34. According to the Supreme Court ’ s case-law, not all principles of tort law are applicable to claims for compensation under the Media Act, as they are essentially claims under civil law sui generis (see Supreme Court judgment of 7 October 1997, no. 14 Os 75/97). It is not relevant whether the media owner was guilty, nor does the claimant have to provide proof of a specific amount of damage (see Supreme Court judgment of 20 September 1995, no. 13 Os 127, 128/95). Despite their civil-law nature, such claims are examined in criminal proceedings. According to the Supreme Court, the ruling on compensation amounts to a criminal sanction (see Supreme Court judgment of 12 November 2002, no. 14 Os 118/02).", "35. A person who was affected by a statement falling under section 6 of the Media Act and is thus entitled to claim compensation must in principle be an individual, that is, a natural person and not a legal entity or a group (see Supreme Court judgment of 29 June 2011, no. 15 Os 151/10k). Concerning defamatory statements affecting groups, the question whether each individual of the group is entitled to claim compensation under section 6 of the Media Act depends on his or her identifiability, which is closely connected to the size of the group (see Supreme Court judgment of 22 January 1979, no. 13 Os 172/78). With regard to small groups, the Supreme Court has held that the statement would normally be meant in such a way that every individual of the group was affected. Thus, every individual is entitled to file a claim.", "36. If the group consists of a large number of people, the domestic courts have generally found that individuals were not affected. However, in certain cases the Supreme Court has accepted that members of larger groups were personally affected (see for instance judgments of 11 January 1978, no. 10 Os 196/77 and 29 June 2011, no. 15 Os 151/10k).", "37. Under section 8 (1) of the Media Act, an affected person may claim compensation under sections 6 to 7c of the Media Act in criminal proceedings in which the media owner is the defendant, or a party for the purposes of section 41 (6) of the Media Act in separate proceedings for publication of the judgment under section 34 (2) of the Media Act. In this case, the ruling on the claim for compensation will be included in the judgment terminating the proceedings.", "38. If no such criminal proceedings have been initiated – for example, because the affected person has not brought a private prosecution for defamation under Article 71 of the Code of Criminal Procedure in conjunction with Article 111 and Article 117 (1) of the Criminal Code – the claim for damages may be lodged in a separate application under section 8a of the Media Act. In this case, the ruling on compensation will be given in a separate judgment.", "39. In accordance with section 8a (1) of the Media Act, in proceedings concerning a separate application for compensation the provisions governing criminal proceedings based on a private prosecution are applicable mutatis mutandis unless the Media Act provides otherwise. Pursuant to section 8a (2) of the Media Act, the application must be lodged within six months after the impugned statement was first disseminated, broadcast or made downloadable; otherwise the claim becomes time-barred.", "40. In addition to the claims under sections 6 et seq. of the Media Act for (financial) compensation, the third chapter of the Media Act provides for the right to have counterstatements published free of charge (section 9 of the Media Act). According to the prevailing opinion, such a claim is to be classified as an action for the removal of interference ( Beseitigungsanspruch ).", "41. Pursuant to section 12 of the Media Act, actions under sections 9 and 10 of the Media Act for the removal of interference (so-called counterstatement proceedings – Gegendarstellungsverfahren ) must first be brought by means of a request for publication directed at the media owner or the editorial staff of the media company. If the request for publication is not complied with and a counterstatement or subsequent notice has not been published at all or has not been published in a satisfactory manner, the affected person may apply to the competent criminal court for an order to publish a counterstatement or a subsequent notice against the media owner as a defendant pursuant to section 14 (1) of the Media Act.", "42. For the purposes of section 6 (1) of the Media Act, the criminal offence of “defamation” is to be understood as defined in Article 111 of the Criminal Code, which reads as follows:", "“(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him or her of behaviour contrary to honour or morality and such as to make him or her contemptible or otherwise lower him or her in public esteem shall be liable to imprisonment not exceeding six months or a fine ...", "(2) Anyone who commits this offence in a printed document, by broadcasting or otherwise [acting] in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...", "(3) The offender shall not be punished if the statement is proved to be true. In the case of the offence defined in paragraph 1, he or she shall also not be liable if circumstances are established which gave him or her sufficient reason to believe that the statement was true.”", "43. The term “insult” within the meaning of section 6 (1) of the Media Act is defined by Article 115 (1) of the Criminal Code, which reads as follows:", "“Anybody who publicly or in front of multiple other people insults or ridicules another, does bodily harm to another or threatens another with bodily harm is liable to imprisonment for up to three months or a fine not exceeding 180 daily rates, unless this conduct is punishable by an offence with a more severe penalty.”", "44. The term “false accusation” is defined in Article 297 (1) of the Criminal Code, which reads as follows:", "“Anybody who puts another at risk of official prosecution by falsely suspecting the person of an offence requiring official prosecution or of breaching official or professional duties, knowing (Article 5 (3)) that the suspicion is false, shall be liable to imprisonment for up to one year or a fine not exceeding 720 penalty units; the penalty shall be imprisonment for six months to five years if the offence of which the other person is falsely accused is punishable by more than one year ’ s imprisonment.”" ]

[ "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "45. The applicant complained that the Austrian courts had failed to comply with their positive obligation under Article 8 of the Convention to protect his reputation and his personal integrity against untrue, defamatory statements made in the right-wing periodical “Aula” in 2016. Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityApplicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "Applicability of Article 8 of the Convention", "46. The Court has held that any negative stereotyping of a group, when it reaches a certain level, is capable of impacting on the group ’ s sense of identity and the feelings of self-worth and self-confidence of members of the group. It is in this sense that it can be seen as affecting the private life of members of the group (see Aksu v. Turkey [GC ], nos. 4149/04 and 41029/04, § 58, ECHR 2012). The Court considers that similar considerations apply in the instant case, when it comes to the defamation of former Mauthausen prisoners, who, as survivors of the Holocaust, can be seen as constituting a (heterogeneous) social group. Furthermore, while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking there may be positive obligations inherent in effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Aksu, cited above, § 59; Tavlı v. Turkey, no. 11449/02, § 28, 9 November 2006; and Ciubotaru v. Moldova, no. 27138/04, § 50, 27 April 2010).", "47. The Court considers that the facts underlying the instant case fall within the scope of the applicant ’ s private life, even though he was not named personally in the article in question (compare Aksu, cited above, § 58), which is why Article 8 of the Convention is applicable.", "Exhaustion of domestic remedies", "(a) The Government ’ s arguments", "48. The Government contended that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. They argued that he could have brought an action under Article 1330 of the Civil Code in respect of the 2015 article within the time-limit of three years and could possibly have reached a settlement, as ten other former concentration camp prisoners had done (see paragraph 16 above). However, the applicant had only challenged the 2016 article in proceedings under sections 6 and 8a of the Media Act. As judgments adopted under the Media Act did not have binding effect on subsequent civil proceedings under Article 1330 of the Civil Code, the applicant could also have brought an action under Article 1330 of the Civil Code in respect of the 2016 article.", "49. Next, the Government submitted that in his application under section 8a of the Media Act, the applicant ’ s claim for compensation in accordance with section 6 of the Media Act had solely concerned the 2016 article. He had not, however, brought such a claim in respect of the 2015 article, although that article had been the source of the impugned statements, whereas the main object of the 2016 article had been to describe the criminal proceedings subsequent to the earlier article. Instead, the applicant had let the six-month deadline for a claim for compensation expire as far as the 2015 article was concerned (see paragraph 39 above).", "50. Furthermore, the Government argued that the applicant had not made an application for publication in accordance with section 12 of the Media Act, or an application under section 14 (1) of the Media Act for a court order to publish a counterstatement against the media owner, both these remedies being aimed at removing untrue statements.", "51. Finally, the Government submitted that the applicant had had the opportunity to report the impugned statements to the authorities under Articles 111, 115 and/or 297 of the Criminal Code. During such criminal proceedings, he could have brought his claim for compensation under section 8 of the Media Act. However, he had not made use of that remedy either.", "52. The Government concluded from the above that the application had to be declared inadmissible for non-exhaustion of domestic remedies.", "(b) The applicant ’ s arguments", "53. The applicant argued that taking legal action in connection with the 2015 article would not have been a suitable remedy for preventing the violation of his rights under Article 8 of the Convention in the present case. By the time the second article forming the subject matter of the instant application had been published in February 2016, any claims under the Media Act in relation to the 2015 article had already become time-barred (on account of the time-limit of six months pursuant to section 8a (2) of the Media Act; see paragraph 39 above). The applicant contended that the fact that no legal action had been taken in relation to previously published content which had breached the law did not prompt the conclusion that legal action in relation to different published content was not justified.", "54. The applicant submitted that the institution of counterstatement proceedings (see paragraph 41 above) under sections 12 et seq. of the Media Act did not constitute an effective remedy for the purposes of Article 35 of the Convention either. Proceedings of that kind were aimed at securing an entirely different form of legal protection. By means of his application under sections 6 and 8a of the Media Act, the applicant had sought compensation for the non-pecuniary damage resulting from the humiliation he had suffered. By contrast, counterstatement proceedings had the purpose of rectifying false media coverage and offered no possibility of enforcing compensation payments. Such proceedings would therefore also have been unsuitable for setting aside judgments that dismissed claims and thus for redressing the violation of the Convention in his case.", "55. The applicant argued that the same applied to a civil action under Article 1330 of the Civil Code: it would not have been capable of providing financial compensation for the non-pecuniary damage he had suffered. Even though cease-and-desist claims and claims in respect of pecuniary damage could be brought under Article 1330 of the Civil Code, the Supreme Court ’ s case-law suggested that there was no right to compensation for non ‑ pecuniary damage. Moreover, a civil action could not bring about the setting aside of judgments by which claims under the Media Act were dismissed.", "56. Lastly, the applicant found that the Government ’ s suggested remedies of requesting a criminal investigation with respect to the impugned statements under Articles 111 and/or 115 of the Criminal Code or reporting them to the authorities under Article 297 of the Criminal Code would not have been effective either. Fulfilling the elements of the offence defined in section 6 of the Media Act merely required the presence of the actus reus as defined in the above Articles of the Criminal Code. In addition, Articles 111 and 115 governed offences subject to private prosecution, which could only be prosecuted by the injured party, and not by the public prosecutor ’ s office of its own motion. Thus, a prosecution would in addition have required proof of fault and would therefore have been less likely to be successful than the claims for damages which the applicant himself had brought. A prosecution pursuant to Article 297 of the Criminal Code would also have been unlikely to be successful, as it required the victim to have been exposed to prosecution himself, which had not been the case with the applicant.", "(c) The Court ’ s assessment", "(i) General principles", "57. The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted. Article 35 § 1 requires that the complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and further, that any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV). The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).", "58. The obligation to exhaust domestic remedies requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015, with further references).", "59. An applicant who has made use of a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III ). Where a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009).", "(ii) Application of the above principles to the instant case", "60. The Court notes that under domestic law, in order to have his reputation protected from defamatory statements, the applicant had the choice between several different legal avenues (see paragraphs 27-44 above), which will be examined in turn below. The Court reiterates that the applicant ’ s goals in the domestic proceedings were: (1) to have the domestic courts establish that the impugned passages of the 2016 article were defamatory and violated his personality rights as protected under Article 8 of the Convention, and to have the statements retracted and the retraction published; and (2) to obtain compensation for the non-pecuniary damage he (allegedly) had suffered as a result of the defamatory article.", " Effectiveness of the remedies under Article 1330 of the Civil Code and sections 12 and 14 (1) of the Media Act", "61. Concerning the Government ’ s argument that the applicant failed to bring actions under Article 1330 of the Civil Code in relation to both the 2015 and 2016 articles, the Court considers that this would have been an effective remedy for the applicant ’ s first declared aim, namely to have the statements in question retracted.", "62. Concerning his second goal, namely to obtain compensation for non ‑ pecuniary damage, the Court considers it necessary to examine its case ‑ law on a related issue, namely whether, in privacy cases, an applicant ’ s victim status depends on the absence of such compensation.", "63. The Court reiterates its settled case-law to the effect that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Nada v. Switzerland [GC], no 10593/08, § 128, ECHR 2012). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010; compare also Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006 ‑ V).", "64. When it comes to compensation for non-pecuniary damage in privacy cases, the Court has held that a victim of a violation cannot expect that a breach of Article 8 of the Convention will automatically follow if he or she does not receive a certain amount of pecuniary compensation (see Mertinas and Mertinienė v. Lithuania (dec.), no. 43579/09, § 51, 8 November 2016, and, mutatis mutandis, Kahn v. Germany, no. 16313/10, § 75, 17 March 2016). The Contracting States may regulate questions of compensation for non-pecuniary damage differently, and the imposition of financial limits is not in itself incompatible with a State ’ s positive obligation under Article 8 of the Convention (see Mertinas and Mertinienė, cited above, § 51). However, such limits must not be such as to deprive the individual of his or her privacy and thereby empty the right of its effective content (see Biriuk v. Lithuania, no. 23373/03, § 45, 25 November 2008, and Armonienė v. Lithuania, no. 36919/02, § 46, 25 November 2008).", "65. Whether it is appropriate in a particular case to award compensation for non-pecuniary damage in addition to the finding of a violation depends on the circumstances of the case. The fact that an applicant was refused compensation in respect of a violation of his right to respect for his private life does not automatically disclose a failure on the domestic authorities ’ part to protect the applicant ’ s right to respect for his private life (see Egill Einarsson v. Iceland (no. 2), no. 31221/15, § 39, 17 July 2018; Rothe v. Austria, no. 6490/07, § 78, 4 December 2012; and Küchl v. Austria, no. 51151/06, § 95, 4 December 2012 ). However, in a case where the Supreme Court of Cyprus denied applicants equitable relief in respect of damage caused by an unlawful administrative act without sufficiently explaining its reasoning, the Court has found a violation of Article 8 (see Taliadorou and Stylianou v. Cyprus, nos. 39627/05 and 39631/05, § 58, 16 October 2008). The Court observes that all these cases presuppose that the domestic courts operated under a legal framework which allowed them to conduct an assessment as to whether or not compensation for non ‑ pecuniary damage should be granted in a given case.", "66. The Court notes in this context that it has regularly made awards in respect of non-pecuniary damage in cases where an applicant ’ s personality rights had been violated by media publications (see, among many other authorities, Armonienė, cited above, § 52, Biriuk cited above, § 51, and Pfeifer v. Austria, no. 12556/03, § 53, 15 November 2007). In other cases, it has held that the finding of a violation of Article 8 of the Convention constituted sufficient just satisfaction and rejected the claim for non ‑ pecuniary damage (see, among other authorities, Egill Einarsson v. Iceland, no. 24703/15, § 57, 7 November 2017, and Buck v. Germany, no. 41604/98, § 63, ECHR 2005 ‑ IV).", "67. The Court concludes that it follows a fortiori from its case-law concerning privacy cases triggered by media publications as set out above that a remedy available at national level must give the domestic courts at least the possibility of making an award in respect of damage, if appropriate in the specific case. Consequently, a remedy which does not allow a claim to be made in respect of non-pecuniary damage cannot be considered effective for the purposes of privacy cases under Article 8 of the Convention such as the instant one.", "68. Since the applicant ’ s declared goal was additionally to obtain compensation for the non-pecuniary damage resulting from the publication of the statements in question, it follows that a claim under Article 1330 of the Civil Code cannot be considered effective for his purposes, as based on the Supreme Court ’ s case-law, it does not entail the possibility of obtaining redress for non-pecuniary damage in the event of a finding of a violation of his personality rights (see paragraph 31 above).", "69. The same considerations apply to the remedies under sections 12 and 14 (1) of the Media Act (see the Government ’ s objections in paragraph 5 0 above), which, contrary to claims under sections 6 to 7c of the Media Act, do not provide for the possibility of a claim for compensation (see paragraph 41 above).", "70. The applicant therefore was not obliged to make use of the above remedies, and the Government ’ s objections of non-exhaustion of domestic remedies in this respect must be dismissed.", " Effectiveness of reporting the impugned statements to the public prosecutor ’ s office under Article 297 of the Criminal Code", "71. The Government argued that the applicant could have reported the impugned statements to the authorities under Article 297 of the Criminal Code (see paragraph 51 above). The Court notes that the statements in question had already been investigated in that respect, but that the public prosecutor was of the opinion that the constituent elements of the offence had not been fulfilled. The Federal Minister of Justice later confirmed that the discontinuation corresponded to the factual and legal situation (see paragraph 10 above). The Court therefore cannot but conclude that pursuing this legal avenue would not have been effective. The Government ’ s objection of non-exhaustion of domestic remedies in this respect must therefore be dismissed.", " Effectiveness of requesting a criminal investigation under Articles 111 and 115 of the Criminal Code", "72. According to the Government, the applicant could also have requested the criminal investigation of the impugned statements under Articles 111 and/or 115 of the Criminal Code. The Court notes that this legal remedy is closely related to bringing a claim under section 6 and 8a of the Media Act (see below), as the terms “defamation” and “insult” contained in section 6 of the Media Act are to be understood as defined in Articles 111 and 115 of the Criminal Code respectively (see paragraphs 42 ‑ 43 above). Claimants can either choose between bringing a private prosecution and bringing a separate claim under the Media Act, or pursue both of these legal avenues at the same time. In the applicant ’ s case, they served the same purpose, namely to have the impugned statements retracted and to obtain compensation for non-pecuniary damage.", "73. The Court reiterates that where a remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see Micallef, cited above, § 58). A claim under section 6 and 8a of the Media Act requires solely the proof of the actus reus, whereas a private prosecution would have required to prove in addition the mens rea of the defendant. Moreover, the applicant has explained why he found that a private prosecution appeared less likely to be successful for his purposes (see paragraph 56 above), a choice which he was entitled to make under the circumstances. The Government ’ s objection of non-exhaustion of domestic remedies in this respect must therefore likewise be dismissed.", " Effectiveness of the claim under sections 6 and 8a of the Media Act in respect of the 2015 article", "74. The Court reiterates that the applicant stated that he had chosen to bring a claim under sections 6 and 8a of the Media Act in respect of the 2016 article, as under Article 1330 of the Civil Code, he could not have been awarded compensation for the non-pecuniary damage resulting from the alleged defamation suffered. However, given that section 8a (2) of the Media Act requires such a claim to be brought in relation to the first publication with allegedly defamatory content, the Government argued that in the instant case, this was the 2015 article, in respect of which the applicant had failed to exhaust domestic remedies by missing the six-month deadline.", "75. The Court notes that such a claim was, in principle, suitable to provide compensation for non-pecuniary damage in addition to a retraction of the (allegedly) defamatory statements. However, when the article in question was published in February 2016, the six-month deadline (see paragraph 39 above) for bringing a claim in respect of the 2015 article (which was published in the July/August 2015 issue of the periodical) had already expired. If the Government ’ s logic were to be followed, this would mean that the applicant no longer had a remedy available in respect of the first article when the second one was published. However, the domestic courts did not explain whether this deadline, provided for the “first dissemination” of an article (see paragraph 39 above), was applicable at all in the present case of a repetition of statements in a new context in another press article. The lack of an explanation is all the more relevant as the article was published under a different heading and added new comments about the alleged “objectivity of the public prosecutor ’ s office” – elements which were not present in the first article.", "76. The Government ’ s objection of non-exhaustion of domestic remedies in this respect must therefore also be dismissed.", " Conclusion as to the admissibility of the application", "77. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties ’ submissions and third-party comments", "The parties ’ submissions and third-party comments", "The parties ’ submissions and third-party comments", "78. The applicant alleged that the Austrian courts had failed to comply with their positive obligation to protect his reputation and his personal integrity against the defamatory, untrue statements made in the periodical Aula. During the Nazi regime, the dehumanising description “plague on the country” ( Landplage ) had been used in connection with persons who in Nazi ideology were considered inferior human beings ( Untermenschen ). The average reader could only have understood the 2016 article as meaning that the applicant had been imprisoned in the concentration camp because of a judgment based on the rule of law, and that those liberated from the camp had gone on to commit very serious crimes. Even if it were assumed that the allegations in the article had been directed against a group of people, every single member of the group had also been individually concerned because of the seriousness of the accusations.", "79. The Government reiterated their arguments in relation to the admissibility of the application. In relation to the proceedings in question, they referred to the reasons given by the domestic courts, which they considered well argued, for dismissing the claim.", "80. The Government pointed out, however, that they found it particularly regrettable that the tragic past of the applicant and the other Mauthausen concentration camp survivors had been described by the periodical Aula in such a disgraceful manner.", "81. The Polish Government submitted that in cases where there were indications that statements concerning the past which were inconsistent with historical facts could actually lead to incitement of racial hatred and discrimination against ethnic, religious and social groups, it might be justified or even necessary to limit the freedom of expression as regards the publication of such statements. When balancing the right to freedom of expression against the right to respect for private life, the Convention States were entitled to treat cases regarding the denial of the Holocaust and other statements relating to Nazi crimes as a separate category, and to adopt a policy that such statements demonstrating disdain towards the victims of the Holocaust did not deserve State protection under the head of freedom of speech (with reference to Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005).", "The Court ’ s assessment", "82. The Court reiterates that under both the State ’ s positive and negative obligations under Article 8, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Aksu, cited above, § 62, with further references). In the instant case, however, the domestic courts never reached the stage of conducting a balancing exercise between the competing Convention rights, as they essentially considered that the applicant could not possibly be personally affected by a publication which reiterated the course of criminal proceedings, or by statements repeated therein which did not have a separate meaning from their first publication in 2015.", "83. At the outset, the first-instance court found that the claimants lacked legal standing to bring the claim. It based its interpretation of the domestic law relating to the legal standing of a group on previous domestic case-law (see paragraph 21 above). The very particular question of whether members of a group can be personally affected by a statement which concerns a historical event involving a group that was large at the time but has since been reduced to a rather small number of individuals, as in the instant case, appears not to have yet been dealt with by the domestic courts (see paragraph 35 above). The Court of Appeal, as the second- and last-instance court in the proceedings, did not mention the question of legal standing at all, notwithstanding this apparent lack of established case-law, the extensive arguments raised by the applicant in his initial claim and in his appeal (see paragraphs 18-20 and 23 above), and the fact that the determination of this preliminary question was essential for the examination of the merits of the claim. Since no finding was made on this issue, the core of the applicant ’ s claim – namely that in his view, he had indeed been personally affected by the defamatory nature of the statements, because the group had meanwhile been reduced to a very small number of members – was consequently never examined by the domestic courts. As explained above, the courts failed to adduce relevant and sufficient arguments to support their point of view.", "84. In substance, the Criminal Court considered that the 2016 article merely described the course of the preliminary investigation by the public prosecutor ’ s office and its result. It held that there was no separate meaning to the statements. The question how it reached that conclusion was left unanswered, even though it should have been necessary to examine this point in detail.", "85. The Court of Appeal explicitly noted that the first-instance court had not explained how it had reached the conclusion that, in dubio pro reo, there was no separate meaning to the 2016 article. Nonetheless, it limited itself to simply agreeing with the outcome of the lower court ’ s interpretation without making any findings in that respect itself. The Court of Appeal dismissed the claim, with the additional argument that no one could be offended by a report on the course of a criminal investigation, despite its own finding that the average reader could have understood the 2016 article as meaning that the statements in question were permissible.", "86. When looking at the statements in question within the context of the 2016 article, the Court is not persuaded by the domestic courts ’ view that the claimants could not have been personally affected by them. The whole context of the 2016 article was very different from that of the 2015 article: while the 2015 article focused on the historical event of the liberation of the Mauthausen prisoners, the 2016 article concerned the criminal investigations in respect of the author of the articles and the person who had reported him to the public prosecutor ’ s office. Therefore, the Court takes the view that a comprehensive explanation of the reasons for the domestic courts ’ interpretation should have been required.", "87. The Court concludes that because of the lack of a comprehensive examination of the questions of legal standing and whether the statements had the same or a separate meaning in the context of the 2016 article, the domestic courts never actually examined the core of the applicant ’ s claim of defamation. The domestic courts have therefore failed to comply with their procedural obligation under Article 8 of the Convention to conduct a comprehensive assessment of a matter affecting the applicant ’ s privacy rights (see Taliadorou and Stylianou, cited above, § 58).", "There has accordingly been a violation of Article 8.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "88. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "89. Under the head of pecuniary damage, the applicant claimed the sum of 4,984.80 euros (EUR; this sum includes VAT), which he had had to reimburse the defendant company for its legal representation; EUR 150 in court fees for the domestic proceedings; as well as EUR 20,000, which he expected he would have been granted in respect of non-pecuniary damage had he succeeded with his claim at national level. He further claimed EUR 15,000 in respect of non-pecuniary damage.", "90. The Government pointed out that not only the applicant but all claimants in the proceedings under the Media Act had been ordered to reimburse the procedural costs of the opposing party. It could not be verified from the documents provided whether or how much the applicant had actually contributed to the reimbursement of these costs. In relation to the damages the domestic courts could have awarded, the Government submitted that they could not accept this claim under the head of pecuniary damage, and that the applicant had failed to substantiate his claims.", "91. In respect of the claim for non-pecuniary damage, the Government submitted that the finding of a violation in comparable cases often constituted sufficient reparation in itself (citing, for example, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 51, ECHR 2003 ‑ XI, and Albert-Engelmann-Gesellschaft mbH v. Austria, no. 46389/99, § 38, 19 January 2006), as a judgment by the Court guaranteed applicants broad public attention and therefore restored their reputation. They found the applicant ’ s claims in any event excessive and not substantiated.", "92. Concerning the defendant company ’ s costs and expenses, the Court reiterates that the absence of proof of actual payment is not justification for rejecting a claim for costs and expenses that is in itself well-founded (see Krejčíř v. Czech Republic, nos. 39298/04 and 8723/05, § 137, 26 March 2009). However, it agrees with the Government that the applicant can only claim his share of the costs, which, in the light of the fact that there were ten claimants altogether, can be assessed at 10% of the defendant company counsel ’ s bill. Under the head of pecuniary damage, the Court therefore awards the applicant EUR 49 8.48, as well as the sum of EUR 150 which he had to pay in court fees – hence EUR 648.48 in total.", "93. In relation to the applicant ’ s claim that he would have been granted EUR 20,000 in damages had he succeeded in the domestic proceedings, the Court does not discern a causal link between this hypothetical sum and any pecuniary damage suffered. It therefore dismisses the claim.", "94. Under the head of non-pecuniary damage, the Court considers it appropriate to award EUR 5,000.", "Costs and expenses", "95. The applicant claimed EUR 8,834.92 for the costs and expenses incurred before the domestic courts for his legal representation, and EUR 5,949.36 for those incurred before the Court (all sums including VAT).", "96. The Government submitted in relation to the costs and expenses incurred in the domestic proceedings that the applicant had not shown that they had actually served the purpose of preventing the alleged violation of the Convention. As to the costs incurred before the Court, they argued that under the Lawyers ’ Remuneration Act ( Rechtsanwaltstarifgesetz ), the applicant could only claim EUR 866.00 plus a 50% standard rate for the instant application, as well as the same amount again for the observations submitted to the Court – hence EUR 2,598.00 in total.", "97. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in order to prevent the violation of the Convention and are reasonable as to quantum. The Court considers that in the instant case, the question of the granting of the defendant company ’ s legal costs and the applicant ’ s own legal costs in the domestic proceedings are inseparably related. Since it has concluded (see paragraph 92 above) that the applicant was entitled to reimbursement of the former, it must inevitably follow that he is also entitled to be granted the latter. As the lawyer ’ s bill presented was addressed to all ten claimants, the Court considers it justified to grant 10% of that sum, namely EUR 883.49 (including VAT).", "98. For the costs and expenses incurred in the Convention proceedings the Court awards the full sum claimed, namely EUR 5,949.36 (including VAT).", "Default interest", "99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1948 and lives in Čierne Pole. She was represented by Mr P. Kerecman, a lawyer practising in Košice.", "3. The Government were represented by their co-Agent, Ms M. Bálintová, from the Ministry of Justice.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The applicant’s late son, who had been a Roman Catholic priest, had been convicted, in 1999, of sexual abuse and threatening the moral education of young people (on account of having attempted to have non ‑ consensual oral sex with a minor boy) and, in 2002, of disorderly conduct (on account of having had consensual oral sex with an adult man in a public place). Those criminal convictions had become spent ( zahladenie ) in 2001 and 2003 respectively, because the applicant’s son had complied with the conditions of his conditional sentence subject to a probationary period. He died in 2006.", "6. Two years after the applicant’s son’s death, between March and May 2008, three tabloid newspapers published articles about his conviction for sexual abuse and a possible link between it and his supposed suicide. The articles were entitled “Priest confessed to abuse of minor boys. Secret of priest’s suicide”, “Priest abused Roma boys. He confessed before his suicide”, and “ Protected priests. The Church provided a guarantee to get a paedophile priest out of prison”. The articles asserted that before his supposed suicide the applicant’s son had confessed to his acts and his bisexual orientation; that the bishop to whom he was subordinate had been informed of the criminal charges, following which the Church had offered a guarantee of his good behaviour; and that by virtue of that kind of guarantee, the applicant’s son had either been released, not put in detention, or not convicted. The articles, one of which was accompanied by pictures of the applicant’s son, mentioned his full name and many details of his private and intimate life, some of which related to the distant past, which were described in expressive terms and presented as stemming either from the criminal files or from the statements of people who had been approached by the journalists (including two of the applicant’s son’s victims, the above ‑ mentioned bishop, a former mayor and some of the applicant’s son’s former parishioners).", "7. On 27 August 2008 the applicant instituted proceedings against the publishers of the three newspapers, seeking post-mortem protection of her late son’s personal integrity on the basis of Article 15 of the Civil Code, as well as protection of her own personal integrity on the basis of Article 11 of the Civil Code. She argued that although her son had confessed to the offence of disorderly conduct, he had never done so with regard to sexual abuse; that one of his purported victims had retracted his accusations of abuse; and that both convictions had become spent. She further asserted that she was not aware of any guarantee offered in the proceedings against her son, that no such information appeared from the relevant decisions and that her son had died as a result of drug intoxication and medical negligence. In the applicant’s view, the articles contained many false and misleading allegations which did not correspond to the criminal courts’ findings, and contained disproportionate value judgments characterising her son as a criminal and his acts as “disgusting paedophile orgies”, the aim of which was to cause a sensation and increase the newspapers’ sale figures. The applicant claimed that those allegations and judgments interfered with both her late son’s and her own privacy rights; moreover, since their publication she had faced adverse reactions and questions from her neighbours and people who had known her son, which significantly affected her period of mourning and contributed to a deterioration in her health.", "8. In the framework of the above-mentioned proceedings, the Michalovce District Court obtained the observations of all of the parties and heard the applicant, her relatives, the defendants’ representatives and several witnesses. The relevant records show the following information.", "9. The mayor whose quotes were referred to in one of the articles denied having spoken to any newspapers.", "10. The authors of the articles mainly stated that they could not remember concrete sources or details, and that they had essentially based the articles on the Internet and other media, on the criminal file, and their personal communication with the bishop and unidentified people living in the parishes concerned, whose statements were deemed to be an expression of their opinions needing no verification. The journalist M.K. referred to a very good source who had provided him with a written document, and to a police record concerning the questioning of the applicant’s son; he claimed to have verified the authenticity of the written document but did not remember any details. M.K. asserted that he had also contacted police spokespersons and had sent an email to the bishop’s office, but he was not sure whether he had saved their exchange (it is not clear from the file whether M.K. complied with the District Court’s request to submit a copy of that exchange). According to the journalist, the story was unusual and interesting, and he had wanted to inform people that even in such a case, the Church had protected the convicted priest and had not removed him; he had wanted to point out in some way the situation within the Church.", "On the other hand, the journalist M.B. asserted that she had not wanted to discuss or assess the situation within the Church but to provide a forum for people’s reactions to the serious facts concerned. She stated that all the facts that she had mentioned in the article would have been confirmed by the bishop.", "As to the question of the basis for the value judgment alleging that the applicant’s son had committed suicide, probably under the weight of a bad conscience, the journalist A.H. replied that she did not remember whether she had had any support for that information and, if she did, where it had come from.", "11. According to a report by the bishop’s office, requested by the court and dated 4 October 2011, that office had not received any questions concerning the applicant’s son from the journalist M.K. or from any other newspapers.", "12. By a judgment of 2 May 2012, the District Court ordered each of the defendants to publish a formal apology to the applicant for having published untrue allegations about her late son, but dismissed her financial claims. The court stated that the applicant’s son’s criminal convictions were indisputable and that although they had become spent, that legal fiction could not be considered absolute since there were situations where those convictions could still be taken into account. The court further considered that the applicant’s son’s criminal prosecution had been of public interest and that the journalists had been entitled to cover the facts that undeniably appeared from the criminal files.", "However, the applicant’s application had to be partially granted because the articles contained untrue allegations, concerning, inter alia, the guarantee offered by the Church, which had interfered with the applicant’s late son’s personal integrity. Those allegations were mainly based on a record of the applicant’s son’s statement before an unidentified authority, of which only a partial copy had been submitted and which had not proved to be authentic since it did not correspond to any record from the criminal proceedings; the allegations were also based on the statements of other persons interviewed by the journalists, for the dissemination of which the defendants bore objective responsibility.", "On the other hand, it had not been objectively proven that the applicant’s own integrity or dignity had been affected, given that she had not lived with her son, who had worked a long way from where she lived. Even if the applicant’s son had been entitled to non-pecuniary damages, which was not the case here owing to his reprehensible behaviour, that right was of a personal character and could not be transferred to the applicant, hence the dismissal of that part of her action.", "13. The applicant appealed, mainly challenging the decision not to order an apology for the publication of the pictures of her late son or any non ‑ pecuniary damages. An appeal was also lodged by the defendants.", "14. On 17 September 2013 the Košice Regional Court quashed the District Court’s judgment, on the ground that the decision ordering the defendants to publish an apology to the applicant was not supported by the evidence. In its view, the District Court should have assessed whether the facts described in the articles reflected what had really happened, instead of examining the authenticity of the copy of the record of the applicant’s late son’s statement. Therefore, the District Court’s judgment had lacked comprehensive reasoning.", "15. By a new judgment of 24 February 2014 the District Court dismissed the applicant’s action and ordered her to pay the costs incurred by the defendants. It observed that, as a parish priest, the applicant’s son could not be treated as an ordinary person whose personal integrity required higher protection, but rather as a public figure expected to be more tolerant to criticism. As the criminal prosecution of the applicant’s son had been of public interest, and with regard to cases of sexual abuse by clergymen that had occurred in the past and the attitude of the Roman Catholic Church to them, the court found that the journalists had been entitled to cover the facts that undeniably appeared from the criminal files, and they had been entitled to publish the applicant’s late son’s picture in accordance with Article 12 § 3 of the Civil Code. While it was true that the articles had also relied on other sources, the court considered that, seen in the light of the applicant’s son’s conviction, those sources could be deemed credible.", "In particular, as to the copy of the record of the applicant’s son’s statement submitted by one of the defendants, the court considered that the reason why that record did not appear in the criminal files was that it had probably been made before the opening of the prosecution of the applicant’s son. In any event, the facts described in that record were not considered to be fabricated because they corresponded to the facts on the basis of which the applicant’s son had been convicted. The court further noted that the bishop’s office had denied receiving questions from any newspapers, and it had not been proven that the bishop had offered a guarantee on behalf of the applicant’s son; nevertheless, it appeared from the attitude of the bishop’s office that they had attempted to help the applicant’s son as much as possible.", "16. In a subsequent appeal, the applicant mainly challenged the District Court’s failure to duly respond to all her arguments as well its erroneous findings reached without the submission of any new evidence. In her view, the court had also failed to distinguish between allegations of fact and value judgments and to carry out a proportionality test.", "17. On 3 June 2015 the Regional Court upheld the judgment of the District Court, except for the decision on costs, which was quashed and remitted back to the District Court (the final decision on that issue was delivered, in the applicant’s favour, on 17 May 2017). It considered that the dismissal of the applicant’s action was based on correct factual and legal findings, and subscribed to the District Court’s opinion that the facts described in the articles, including those emanating from sources other than the applicant’s son’s criminal convictions, could be considered credible.", "18. The applicant challenged the Regional Court’s judgment by way of a constitutional complaint, alleging a violation of her rights under Articles 6 and 8 of the Convention, recapitulating her previous arguments and referring to the relevant criteria established by the Court’s case-law. She further claimed that the Regional Court had failed to give a duly reasoned decision and had reached arbitrary conclusions which were not supported by credible evidence.", "19. On 8 February 2017 the Constitutional Court declared the complaint inadmissible as manifestly-ill founded. It found that the Regional Court had duly dealt with the applicant’s arguments and that its findings were sufficiently reasoned and acceptable from a constitutional point of view. It further reiterated that, pursuant to its established case-law, a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been established, the whole constitutional complaint had to be dismissed as manifestly ill-founded." ]

[ "RELEVANT LEGAL FRAMEWORK", "20. The right to protection of a person’s personal integrity is guaranteed by Articles 11 et seq. of the Civil Code (Law no. 40/1964 Coll., as amended). The relevant provisions are summarised in the Court’s judgment in Radio Twist a.s. v. Slovakia (no. 62202/00, §§ 33-36, ECHR 2006 ‑ XV).", "21. In addition, Article 15 of the Civil Code provides that after the death of an individual, the right to protection of his or her personal integrity may be asserted by his or her spouse or children or, if there are no spouse and children, by his or her parents.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "22. The applicant complained that the dismissal of her action against the newspaper publishers amounted to a violation of her right to respect for her private life, as guaranteed by Article 8 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”", "Admissibility", "23. It is clear from the Court’s case-law (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, with further references; Editions Plon v. France, no. 58148/00, § 46, ECHR 2004 ‑ IV; and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013), and the Government accepted, that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention.", "24. The Court further considers that the effect of the statements made in the articles in question about the applicant’s son rose above the “threshold of severity” required by the Court’s case-law (see Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018); thus the applicant’s private life has been affected to a degree attracting the application of Article 8. That provision is therefore applicable in the circumstances arising in the present case.", "25. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "26. The applicant argued that the domestic courts had misapplied the relevant criteria established by the Court’s case-law and had failed to achieve a fair balance between the competing rights at stake. Considering that the question of whether the disseminated information was of public importance could only be assessed on the basis of objective criteria, she observed that neither the subjective perception of the journalists, nor the fact that priests’ misconduct had been at that time subject to public discussion, gave any justification for disseminating false statements and inappropriate value judgments concerning her son.", "27. The applicant further emphasised that her son had been a simple parish priest until his death in 2006, hence he had no longer been active in public life at the time of the publication of the articles and could thus not have been considered a person of public interest; moreover, his criminal convictions had occurred a long time ago, and the time interval that had passed had weakened any potential interest of the public in receiving such information. Nor could the involvement of the Church in her son’s case be considered a matter of public concern, as maintained by the Government, since her son had never been in custody and it had not been proven that any guarantee had been offered on his behalf by the Church.", "28. In the applicant’s view, not only did the articles fail to pursue any legitimate aim but their tabloid style and striking language (for example “secrets of a man in a cassock”, “shocking information”, and “disgusting paedophile orgies”) clearly indicated that their authors’ purpose was to shock, meet deadlines and increase sales figures. Also, unlike in Putistin (cited above), the articles in question were directly concerned with her late son’s private and sexual life, his criminal convictions and the reasons for his death, and had identified him using his full name and picture. Although the applicant had not been directly mentioned, the articles and the subsequent negative reactions to them by the people around her had had significant detrimental effects on her, particularly as she was known to be the mother of the deceased, bore the same family name as him, and lived in the village mentioned in the article.", "29. Lastly, the applicant challenged the Government’s argument that the journalists had tried to verify the information provided by sources other than the criminal files, and had acted in good faith. Referring to the records of the court hearings (see paragraph 8 above), she noted that the journalists had merely asserted that they had believed, or did not remember, their sources, and that the journalists’ statements concerning their contacts with the bishop’s office and a mayor had not been proved to be true. Moreover, the authenticity of the only document submitted by the journalists, that is a copy of a record of her late son’s questioning, which the courts had regarded as key evidence, was doubtful.", "30. The Government submitted that the domestic courts had duly applied the relevant criteria formulated by the Court and had struck a fair balance between the applicant’s and the newspaper publishers’ rights. In their view, it followed from the journalists’ statements before the courts that they had considered the information published to be a matter of public concern and that they had attempted to verify by different means the facts provided by their sources. The Government were themselves of the view that, in so far as the articles related to the moral profile of a Roman Catholic priest, that is a person in the public eye, and to the Church’s attitude to him, they constituted a contribution to a debate of public interest, and that the journalists’ conduct could be regarded as being bona fide.", "31. The Government further argued that, although the applicant’s approach as a mother was understandable, she had mainly complained of disrespect to the memory of her son, which demonstrated her bias.", "32. With regard to the time interval between the applicant’s son’s criminal convictions and death, and the publication of the articles, the Government contended that it followed from the Court’s case-law (the Government cited Éditions Plon, cited above, § 53) that the more time that had elapsed, the more the public interest in an open discussion prevailed over the interest in protecting the rights of the deceased person.", "33. Lastly, the Government argued that the applicant, who had not been mentioned in the articles in dispute, had not been directly affected by them, although their impact and effect on her was admittedly greater than in Putistin (cited above). The articles had contained only the facts which were deemed significant for assessing the applicant’s son’s morals and which had originated mainly from his criminal convictions or the statements of third persons; as such, their content was not unacceptable.", "The Court’s assessment", "34. The Court notes at the outset that the applicant can be regarded as having been directly affected by the articles in question (see also paragraph 48 below). Thus the present case requires an examination of the fair balance that has to be struck between her right to the protection of her private life under Article 8 and the newspaper publishers’ right to freedom of expression as guaranteed by Article 10.", "35. In exercising its supervisory function, the Court’s task is to review, in the light of the case as a whole, whether the decisions taken by the domestic courts pursuant to their power of appreciation are in conformity with the relevant criteria laid down in the Court’s case-law (see, among many other authorities, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-113, ECHR 2012; Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78 ‑ 95, 7 February 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-93, ECHR 2015 (extracts)). The Court has already identified a number of criteria in the context of balancing the competing rights, which include the following: contribution to a debate of public interest; the degree of notoriety of the person affected; the subject of the report; the prior conduct of the person concerned; the content, form and consequences of the publication; and, where appropriate, the circumstances in which photos were taken.", "36. In the circumstances of the present case, the Court considers it appropriate to examine the applicable criteria, which are of relevance to the present case, in this specific order: how well known the person concerned was and the prior conduct of that person; the subject matter, content and consequences of the articles; and the contribution to a debate of general interest.", "(a) How well known the person concerned was and the prior conduct of that person", "37. The Court notes that, while alive, the applicant’s son was not a well ‑ known public figure or a high-ranking Church dignitary (see Albert ‑ Engelmann-Gesellschaft mbH v. Austria, no. 46389/99, § 27, 19 January 2006). The domestic courts considered, nevertheless, that, as a parish priest, he could not be treated as an ordinary person but rather as a public figure expected to be more tolerant to criticism (see paragraph 15 above).", "38. The Court further observes that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of, inter alia, the commission of a criminal offence (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and M.L. and W.W. v. Germany, nos. 60798/10 and 65599/10, § 88, 28 June 2018). However, a criminal conviction does not deprive the convicted person of his or her right to be forgotten, all the more so if that conviction has become spent. Even if a person may indeed acquire a certain notoriety during a trial, the public’s interest in the offence and, consequently, the person’s notoriety, can decline with the passage of time. Thus, after a certain period of time has elapsed, persons who have been convicted have an interest in no longer being confronted with their acts, with a view to their reintegration in society. This may be especially true once a convicted person has been finally released (see M.L. and W.W., cited above, § 100).", "39. In the present case, it is true that the applicant’s son’s prior conduct led to him being the subject of criminal proceedings and being convicted. In the light of the Court’s case-law cited above, this cannot, however, deprive him entirely of the protection of Article 8. Moreover, it is to be noted that the applicant’s son was given a conditional sentence and complied with its conditions during the probationary period. Thus, the Court has to take into account that not only were the articles in question published several years after the applicant’s son’s criminal convictions but also after those convictions had become spent (see paragraph 5 above).", "(b) Subject matter, content and consequences of the articles", "40. The Court has repeated time and again the distinction that needs to be made between statements of fact and value judgments (see, among many other authorities, Morice v. France [GC], no. 29369/10, § 126, ECHR 2015). It reiterates that even a value judgment must be based on sufficient facts in order to constitute a fair comment under Article 10 and that the difference between a value judgment and a statement of fact finally lies in the degree of factual proof which has to be established (see, for example, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 40, ECHR 2003 ‑ XI, and Dyuldin and Kislov v. Russia, no. 25968/02, § 48, 31 July 2007).", "41. Furthermore, journalists are under an obligation to respect certain duties and responsibilities (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 97, ECHR 2004 ‑ XI). In particular, the right of journalists to divulge information concerning issues of general interest is subject to their acting in good faith and providing “reliable and precise” information in accordance with the ethics of journalism (see, for example, Godlevskiy v. Russia, no. 14888/03, § 42, 23 October 2008, and Ageyevy v. Russia, no. 7075/10, § 226, 18 April 2013).", "42. Turning to the contents of the articles in question, the Court notes that the material was presented in a sensational and gossip-like manner, with flashy headlines (see paragraph 6 above) placed on the front pages, along with – in the third article – photographs of the applicant’s late son. The Court finds that the allegations made by the tabloid press in respect of the latter were of a serious nature and were presented as statements of fact which had led to his criminal convictions, rather than value judgments.", "43. In this context, the Court observes, first, that despite finding that the articles had also relied on sources other than the criminal files (see paragraph 15 above), the domestic courts did not draw a clear distinction between statements of fact and value judgments.", "44. This failure appears particularly salient in respect of the applicant’s son’s purported suicide, which could not have been mentioned in the criminal files (as it had happened after the convictions) and which the applicant had denied as being her son’s cause of death (see paragraph 7 above). On this point, no conclusion was drawn from the very vague response of the journalist A.H. (see paragraph 10 above).", "45. The Court further observes that many statements in the articles were presented in a way which made them appear to have been verified or confirmed by a credible source of information, be it a mayor or the bishop’s office (see paragraph 6 in fine above). Again, the courts omitted to take account of the evasive answers of the journalists and of their inability to adduce concrete evidence in support of their allegations (see paragraph 10 above). On the contrary, they concluded (see paragraphs 15 and 17 above) that, considered in the light of the applicant’s son’s conviction, the journalists’ unidentified sources could be deemed credible, without attaching any weight to the fact that the bishop’s office had denied having had any communication with the newspapers, and that the information about the Church having offered a guarantee on behalf of the applicant’s son had been disproved.", "46. Moreover, the Court is not convinced by the reasons that the District Court relied on to accept an incomplete copy of the record of the applicant’s son’s questioning as a credible source of information. It notes that if the statement given by the applicant’s son before an unidentified authority had been made before the opening of the prosecution of the applicant’s son, as assumed by the District Court, and had not been reflected in the convicting judgment, it had not been publicly available and the journalist in question should have been particularly careful in using it. However, the journalist was not able to provide the domestic court with any details as to how he had obtained that document or verified its authenticity (see paragraph 10 above).", "47. In such circumstances, the Court finds that the domestic courts failed to carry out an adequate assessment of all the elements relevant to the matter and of the evidence available. Although the journalists must be afforded some degree of exaggeration or even provocation, the Court considers that the frivolous and unverified statements about the applicant’s son’s private life must be taken to have gone beyond the limits of responsible journalism (compare OOO Ivpress and Others v. Russia, nos. 33501/04 and 3 others, § 77, 22 January 2013).", "48. Lastly, the Court is ready to accept that the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof (see Putistin, cited above, § 33, and Dzhugashvili v. Russia (dec.), no. 41123/10, §§ 27 and 30, 9 December 2014).", "(c) Contribution to a debate of general interest", "49. The Court reiterates that in the balancing of interests under Articles 8 and 10 of the Convention, the contribution made by photos or articles in the press is an essential criterion (see Von Hannover (no. 2), cited above, § 109, with further references).", "50. The Court has already accepted that articles focusing on similar topics, namely the discrepancy between the official positions of the Roman Catholic Church in respect of homosexuality, the private conduct of representatives of that Church and the question whether they lived up to their Church’s proclaimed standards, contributed to a debate of general interest (see Verlagsgruppe News GmbH and Bobi, cited above, §§ 75, 76 and 80, and Rothe v. Austria, no. 6490/07, § 55, 4 December 2012).", "51. Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to the techniques of reporting which should be adopted in a particular case (see, among other authorities, Von Hannover, cited above, § 102). That being said, the Court has already accepted that it is legitimate to use individual cases to highlight a more general problem (see Eerikäinen and Others, cited above, § 66).", "52. In the present case, the Court can accept that the subject of sexual abuse by clergymen and the attitude of the Roman Catholic Church thereto, as identified by the domestic courts (see paragraph 15 above), was in the public interest, and that the criminal cases in respect of the applicant’s son were selected as an example illustrating the problems involved.", "53. However, the Court is convinced that it was possible to inform the public adequately about the matter at issue by means which entailed less interference with the applicant’s son’s legitimate interests, namely by reporting only the facts accessible from the publicly available criminal files. In this context, the Court reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life. In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life (see, in particular, Mosley v. the United Kingdom, no. 48009/08, § 114, 10 May 2011). In the light of those considerations, the Court is of the view that the publication of additional, particularly intrusive information concerning the intimate sphere of the applicant’s son’s private life and the publication of his picture cannot be justified by any considerations of general interest.", "54. Thus, the Court finds that, as well as being rather provocative and sensationalist, the articles in question could hardly be considered as having made a contribution to a debate of general interest.", "(d) Conclusion", "55. The Court considers that it was crucial in the present case that the domestic courts make a careful assessment of the presence and level of public interest in the publishing of the information in question, and that the domestic courts strike a balance between any such public interest and the applicant’s individual interests (see Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 3), no. 37986/09, § 83, 7 January 2014).", "56. However, it follows from what has been said above that the domestic courts failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law.", "57. In addition, as regards the procedural protection inherent in Article 8 of the Convention (see, for example, Turek v. Slovakia, no. 57986/00, §§ 111-13, ECHR 2006 ‑ II (extracts)), the Court observes that, in defence of her substantive rights under Article 8 of the Convention, the applicant lodged a complaint under Article 127 of the Constitution. However, the Constitutional Court dismissed that complaint on the basis of the premise, stemming from no more than its own decision ‑ making practice, that no such remedy was available because no violation of the applicable rules of procedure had been established (see paragraph 19 above; see Soltész v. Slovakia, no. 11867/09, § 54, 22 October 2013, and Ringier Axel Springer Slovakia, a.s., cited above, § 86). On this point, the Court considers that subjecting the constitutional review of the applicant’s rights under Article 8 of the Convention to a violation of her procedural rights under Article 6 § 1 amounts to an excessive formalism which is not in line with the procedural safeguards stemming from Article 8 (see, mutatis mutandis, V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009).", "58. The foregoing considerations are sufficient to enable the Court to conclude that, notwithstanding the margin of appreciation allowed to the domestic courts in this field, the State has failed to fulfil its positive obligations under Article 8.", "59. There has accordingly been a violation of Article 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "60. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "61. The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage for her mental suffering and feelings of injustice.", "62. The Government contested the claim as being overstated and requested that, should the Court find any violation of the applicant’s Convention rights, any just satisfaction be awarded in an adequate amount.", "63. The Court awards the applicant EUR 5,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "64. The applicant also claimed EUR 6,371.72 for the costs and expenses incurred before the domestic courts and the Court, including the translation costs.", "65. The Government contested the claim since the applicant had failed to substantiate it by any document proving that she had paid for her legal representation or was under a contractual obligation to do so.", "66. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Under Rule 60 §§ 2 and 3 of the Rules of Court “the applicant must submit itemised particulars of all claims, together with any relevant supporting documents”, failing which “the Chamber may reject the claim in whole or in part” (see Zborovský v. Slovakia, no. 14325/08, § 67, 23 October 2012).", "67. In the instant case, the Court observes that the applicant did not substantiate her claim for the costs of legal services with any relevant supporting documents establishing that she was under an obligation to pay them or that she had actually paid. Accordingly, the Court does not award any sum on this account (see Cumpǎnǎ and Mazǎre, cited above, §§ 133-34, and Zborovský, cited above, § 68).", "68. On the other hand, the Court awards the applicant EUR 267 in respect of the translation costs, which the applicant supported by relevant invoices, plus any tax that may be chargeable to the applicant.", "Default interest", "69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant, Ms Gabriele Fürst-Pfeifer, is an Austrian national who was born in 1964 and lives in Mödling. She is a psychiatrist and has been registered since the year 2000 as a psychological expert for court proceedings in custody and contact-rights-related disputes and decisions on public care as well as child abuse. Specialised in the psychological examination of children and adolescents, her focus is mainly on custody and contact-rights-related disputes.", "6. The online publication “meinbezirk.at” was published and edited by the “Print” Multimedia Company GmbH, a private company which had its registered office in St. Pölten.", "7. The regional weekly print publication Bezirksblatt, which was sent to every household of the district free, was published and edited by the “Print” Zeitungsverlag GmbH, a private company which had its registered office in Innsbruck.", "A. The published article", "8. On 23 December 2008 an article was published in “meinbezirk.at” as well as in the print version of Bezirksblatt, which stated as follows:", "“The quality of experts in the spotlight ( Gutachterqualität im Visier )", "Disclosed: Court Expert for custody proceedings a case for therapy", "( Aufgedeckt: NÖ Sorgerechts-Sachverständige selbst ein Therapie-Fall )", "Suffering from up-and-down mood swings, panic attacks, suicidal thoughts and hallucinations, together with paranoid ideas – but working as a court-appointed expert. In the last 12 years she has examined over 3.000 married couples in custody ‑ related disputes. Now it seems, it gets rough for [the applicant] as an expert report about her psychological condition has been disclosed ...", "A psychological expert report by Dr. M. was commissioned in 1993 in the course of civil proceedings (action because of an alleged breach of promise of marriage) which unearthed the deficiencies of [the applicant] described above. Moreover, Dr. M. came to the conclusion that the applicant ’ s impairments were hereditary, as the history of her family showed an accumulation of these impairments. Three years later, the applicant was introduced to the “expert community” at the Wiener Neustadt Regional Court, and her integrity was beyond reproach for a decade – until now.”", "9. The passage was followed by comments by a member of the Green Party, who had made a criminal complaint against the applicant with the Public Prosecutor ’ s office, the Youth Advocate at the Regional Government of Lower Austria, and the Vice-President of the Wiener Neustadt Regional Court, who was responsible for managing the list of experts at the court. At the end of the article it was mentioned that the applicant was no longer answering her phone and had withdrawn from all her cases.", "10. As a result of the article the applicant was confronted with questions related to it from colleagues and patients, and proceedings were initiated at the Wiener Neustadt Regional Court to clarify whether she was still fit to work as a court-appointed expert. In the course of those proceedings the applicant ’ s mental status was also set to be examined.", "B. The proceedings against the “Print” Multimedia Company GmbH concerning the online publication", "11. On 14 January 2009 the applicant lodged an action with the St. Pölten Regional Court. She sought damages under section 8a of the Media Act ( Mediengesetz ) and the publication of the judgment claiming that the article and in particular the passages dealing with the psychological expert report on the applicant had violated her intimate personal sphere and compromised her publicly. However, she did not argue that the expert report had been obtained unlawfully.", "12. On 3 April 2009 the St. Pölten Regional Court ( Landesgericht St. Pölten ) allowed the applicant ’ s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the operative part of the judgment to be published. Furthermore, the publisher was to bear the costs of the proceedings. The court found that an average reader would understand the article as putting the expert opinion from 1993 in direct relation to the applicant ’ s work as an expert now, thus questioning the quality of her work. The article, that also featured the applicant ’ s full name and the description of her psychological impairment, touched her intimate personal sphere, since it created a link between her mental state and the quality of her work. However, the information itself did not allow for such a link, especially since the expert opinion dated from 1993 and dealt only with a very specific question in the context of civil proceedings at the time. The incomplete and manipulative content of the article was not able to meet the standards of reporting on matters of fact. Furthermore, the court did not consider that there was a direct link between the contents of the article and the applicant ’ s public position, given that she mainly worked as an expert in custody cases, which were not usually heard in public. Furthermore, it could be assumed that the applicant, a psychiatrist herself and a medical doctor, was managing her illness well and was able to do her work without any impairments.", "13. The publisher appealed on points of law and fact, as well as against the sentence ( Berufung wegen Nichtigkeit, Schuld und Strafe ).", "14. Thereupon, on 30 November 2009, the Vienna Court of Appeal ( Oberlandesgericht Wien ) heard the appeal, set aside the judgment of the lower court, and dismissed the applicant ’ s action. The Court of Appeal confirmed that the article and the impugned passages giving opinions on the applicant ’ s mental state affected her intimate personal sphere and were capable of compromising her. However, the content of the article was true, as it only repeated true information that had not been disputed by the applicant. Furthermore, the court did not find the article to be incomplete or manipulative, but sufficiently well-balanced and faithful to the different sides of the story in that it also referred to the fact that the applicant ’ s integrity had never been questioned in ten years; the court also asked for statements from the Vice-President of the Wiener Neustadt Regional Court, a member of the Green Party, and the Youth Advocate of the Regional Government of Lower Austria.", "15. The Court of Appeal further found that the publication in issue was directly linked to the applicant ’ s public status. She had been included in the list of experts to be appointed by the courts since the year 2000 and had been appointed in several cases. This regular work as an expert in court proceedings belongs beyond doubt to the public sphere ( “...ist zweifellos dem öffentlichen Leben zuzuordnen...” ) as she took part in association with the State-organised judiciary and held an important position in connection with the decision-making process of judges. Even though the impugned expert opinion dated from 1993 and concerned a period in the applicant ’ s life prior even to that date, the reporting in question touched sufficiently upon the present public activities of the applicant. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of good conduct of the administration of justice, which was what had happened as the next step in the present case. According to the Court of Appeal, the article took up doubts arising from the neurologist opinion in 1993 without denying the applicant ’ s abilities as an expert in the area. The truthful information in the article and the public interest in the subject matter justified the article ’ s critical questioning of exactly those abilities.", "16. That judgment was served on the applicant ’ s representative on 17 December 2009.", "C. The proceedings against the “Print” Zeitungsverlag GmbH concerning the printed publication", "17. In the meantime the applicant lodged an action with the Innsbruck Regional Court on 7 April 2009. She sought damages under section 8a of the Media Act ( Mediengesetz ) and publication of the judgment claiming that the article, and in particular the passages dealing with the psychological expert report on her, violated her intimate personal sphere and compromised her publicly.", "18. On 2 October 2009 the Innsbruck Regional Court ( Landesgericht Innsbruck ) granted the applicant ’ s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the publication of the operative part of the judgment. Furthermore, costs were awarded against the publisher. The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in 1993 and that this placed in question the quality of the applicant ’ s work so far. That the applicant ’ s psychological illness was directly linked to the intimate personal sphere was beyond doubt. The present article not only mentioned the applicant ’ s mental health status, but also grossly exaggerated individual symptoms, which was also capable of compromising her. The article was so incomplete and distorted that it could not be considered a report of matters of fact. The Regional Court in particular noted that the article did not mention that the period of examination was even earlier than 1993 and that only certain aspects of the expert opinion had been published, while others had not. Scandalously the article created the impression that the applicant had rendered decisive opinions in custody proceedings for over a decade while herself suffering from the symptoms described above. Furthermore, the publication was not linked in any way to the applicant ’ s public status ( “... steht [...] in keinem unmittelbaren Zusammenhang mit dem öffentlichen Leben der Antragstellerin” ). There was no connection between the applicant ’ s work at present and her mental health status years ago. Her work in the context of custody proceedings was also not conducted in public.", "19. The publisher appealed on points of law and fact, as well as against the sentence ( Berufung wegen Nichtigkeit, Schuld und Strafe ).", "20. Thereupon, on 11 February 2010, the Innsbruck Court of Appeal ( Oberlandesgericht Innsbruck ) granted the appeal, set aside the judgment of the lower court, and dismissed the applicant ’ s action. In contrast to the Regional Court it found that the average reader would understand from the article at issue that in 1993 an expert opinion was rendered in respect of the applicant that showed the above-mentioned psychological impairments. However, the article also stated that the applicant ’ s integrity had not been questioned for over a decade. The article, while focusing on the applicant ’ s work in custody proceedings, gave space to comments from the Youth Advocate of the Regional Government of Lower Austria, a member of the Green Party, and the Vice-President of the Wiener Neustadt Regional Court. The article did not indicate however that the applicant was not competent to exercise her profession as a psychological expert. Furthermore, the published information was true. The fact that only parts of the expert opinion were repeated in the article did not render the article distortive, nor the relevant information untrue.", "21. As regards the connection to the public sphere and public interest, the Court of Appeal found that the State administration, together with the administration of justice, belonged to the public sphere. The applicant had been included in the list of court-commissioned experts since the year 2000, and her repeated work as an expert in court proceedings must be considered as belonging to the public sphere. The activity was closely linked to the administration of justice, and had a considerable influence on judges ’ decision-making processes. The impugned article concerned the applicant ’ s activity as an expert in custody proceedings. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of the proper administration of justice, which had happened as a next step in the present case. Insofar, a truthful report linked to a person ’ s public status, which also contained information belonging to the intimate personal sphere must be permitted to be published. The Court of Appeal concluded that the article, by way of an appropriate commentary, critically examined a matter of public interest and therefore exercised its role as a “public watchdog”.", "22. That judgment was served on the applicant ’ s representative on 11 March 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "23. Section 7 of the Media Act, which has the title “Interference with a person ’ s most intimate personal sphere” ( Verletzung des höchstpersönlichen Lebensbereiches ), reads as follows:", "“(1) If the strictly personal sphere of an individual ’ s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 20.000 euros ...", "(2) The right referred to in paragraph 1 above shall not apply where:", "(i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies;", "(ii) the statements published are true and are directly related to public life;", "(iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or", "(iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.”", "24. If the public prosecutor does not file a bill of indictment, the person who claims to be the victim of an interference with his or her intimate personal sphere may request the opening of criminal proceedings. According to Section 8a § 1 of the Media Act, this person has the legal rights and abilities of a private prosecutor ( Privatankläger ).", "25. According to the Federal Act on the Certifying and Declaration on Oath of Experts and Interpreters, Federal Law Gazette No. 137/1975 ( Bundesgesetz über die allgemein beeideten und gerichtlich zertifizierten Sachverständigen und Dolmetscher; Sachverständigen- und Dolmetschergesetz, BGBl. 137/1975 ) authorities shall normally choose an expert from a register held by the President of the Regional Court. According to section 2 § 2 of this law, to be enlisted as an expert for a specific scientific area, one, inter alia, has to be physically and psychologically fit.", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "26. Given that the two applications concern the same press article, once published on the Internet and once in print by two different companies, and that they share a legal basis, the Court decides to join them (Rule 42 § 1 of the Rules of Court).", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "27. The applicant complained that the authorities had failed to protect her rights under Article 8 of the Convention, as they had dismissed her actions with the courts to be compensated for alleged unlawful publication of facts of her private life. Article 8, in so far as relevant, provides as follows:", "“1. Everyone has the right to respect for his private ... life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "28. The Government contested that argument.", "A. Admissibility", "29. The Government requested the Court to declare the application inadmissible in accordance with Article 35 of the Convention as the applicant had not lodged a request for retrial under Article 363a of the Code of Criminal Proceedings to redress the alleged breach. Article 363a of the Code of Criminal Proceedings would provide for a retrial in criminal proceedings if the European Court of Human Rights had found a violation of the Convention. The Supreme Court had extended this remedy by analogy, stating that a judgement by the European Court of Human Rights was not a necessary prerequisite for a retrial in criminal proceedings (Supreme Court, judgment of 1 August 2007, no. 13Os135/06m). It was thus possible to challenge a violation of the rights under the Convention in the context of criminal proceedings at the domestic level by applying for a retrial on the basis of Article 363a of the Code of Criminal Proceedings directly to the Supreme Court.", "30. The applicant contested this argument.", "31. The Court observes that in the case of ATV Privatfernseh- GmbH v. Austria ((dec.) no. 58842/09, 6 October 2015, § 32) it has examined in detail the question whether Article 363a of the Code of Criminal Proceedings was a remedy readily available and sufficient to afford redress in respect of an alleged breach of rights under Article 10 of the Convention in proceedings for compensation under section 7 of the Media Act. It found that a request under Article 363a of the Code of Criminal Proceedings constituted, in the circumstances of the case, an effective and sufficient remedy an applicant would be obliged to use. However, it transpires from the Supreme Court ’ s case-law (quoted in ATV Privatfernseh- GmbH (dec.), cited above, § 22), that victims of crimes and private prosecutors, as well as public prosecutors, are not entitled to this remedy. The Government has not provided evidence which would show that the availability of this remedy also extended to this group of persons. It follows that the Government ’ s objection with regard to the non-exhaustion of domestic remedies has to be dismissed.", "32. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that the applications are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "33. The applicant submitted that the Austrian courts had violated their duty to protect her right to private life when dismissing her actions for compensation for the unlawful publication of matters relating to her private life. The content of an expert report about her psyche was part of her private life and not related to any public interest. The Vienna Court of Appeal as well as the Innsbruck Court of Appeal had not taken into account that the publication of a 17-year-old expert report would not fulfil a pressing social need and was of no relevance when assessing her present professional skills. The publication ’ s aim was not to inform the public but only to damage her reputation. Under these circumstances the publishers could not rely on their rights under Article 10 as she was not a public figure. The applicant did not argue that the expert report had been obtained unlawfully.", "34. The Government argued that the Austrian courts had struck a fair balance between the competing interests under Articles 8 and 10 of the Convention within the margin of appreciation granted by the Convention. Information about the mental state of health of a court-certified expert who worked in sensitive proceedings in custody issues was a contribution to a debate of general and public interest. Issues concerning the functioning of the justice system would constitute questions of public interest and it would be the duty of the press to impart information on matters relating to the functioning of the judiciary. Because of the special role of experts in the Austrian judicial system and their influence on the courts ’ decisions, not only would the activities of judges, public prosecutors or registrars constitute an issue of public life, but so would those of court-certified experts. As regards the contents of the article, its truth remained undisputed. Both Courts of Appeal had reached the conclusion that it was neither incomplete nor manipulative, but rather well-balanced, taking various aspects and views into account. Not only did the article reproduce statements and comments of representatives of public life, it also mentioned the fact that the applicant ’ s professional integrity had not been questioned during ten years of practice.", "2. The court ’ s assessment", "35. The Court reiterates that according to its case-law the right to reputation is an independent right guaranteed by Article 8 of the Convention which the State has a positive obligation to protect (see Karakó v. Hungary, no. 39311/05, § 18, 28 April 2009 ).", "36. With regard to cases in which a violation of the rights guaranteed under Article 8 is asserted and the alleged interference with those rights originates in an expression, the Court has already found that the protection granted by the State should be understood as one taking into consideration its obligations under Article 10 of the Convention. It is the latter provision which has been specifically designed by the drafters of the Convention to provide guidance concerning freedom of speech – also a core issue in the present application. Paragraph 2 of Article 10 recognises that freedom of speech may be restricted in order to protect reputation. In other words, the Convention itself announces that restrictions on freedom of expression are to be determined within the framework of Article 10 enshrining freedom of speech (see Karakó, cited above, § 20-21).", "37. In particular, in cases concerning newspaper publications, the Court has previously held that the protection of private life has to be balanced, among other things, against the freedom of expression guaranteed by Article 10 of the Convention (see, with further references, Węgrzynowski and Smolczewski v. Poland, no. 33846/07, § 56-58, 16 July 2013).", "38. The Court has further found that, as a matter of principle, the rights guaranteed by these provisions deserve equal respect and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both (see Axel Springer AG v. Germany [GC], no. 39954/08, § 87, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR-2012).", "39. The Court has also observed that the most careful of scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern. Furthermore, particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive. The Court has also observed that the press must not overstep certain bounds, particularly as regards the reputation and rights of others (for many examples see Węgrzynowski and Smolczewski, cited above, § 56-58).", "40. Where a balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts. In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see, with further references, Delfi AS v. Estonia [GC], no. 64569/09, § 139, 16 June 2015).", "41. The Court reiterates that, in matters of freedom of expression, its task in exercising its supervisory jurisdiction is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether they were “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Cojocaru v. Romania, no. 32104/06, § 21, 10 February 2015 ).", "42. It follows that, notwithstanding the fact that the applicant claims a violation of Article 8 of the Convention, the Court has to determine whether the principles inherent to Article 10 were properly applied by the Austrian courts when deciding the applicant ’ s actions (see for many, Ruusunen v. Finland, no. 73579/10, § 43, 14 January 2014; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 93, 10 November 2015 ).", "43. In previous case-law, the Court has emphasised that information about a person ’ s health is an important element of private life (see, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Both Courts of Appeal noted that the article concerned an important element of the applicant ’ s private life and compromised her in public but dismissed the compensation claims because the published facts were true and had a direct connection to the public sphere. However, the particular information on the applicant ’ s mental health stemmed from the report of a court ‑ appointed expert acting in public proceedings before a civil court. Moreover, as can be seen from the persons quoted in the article at issue and their respective statements (see above paragraph 9), the authors of the article reported that the medical report had already provoked political reactions and thus participated in an ongoing public debate.", "44. The Court notes that the article under consideration did not contain a reference to ongoing or recently ended court proceedings but a dispute if the applicant ’ s psychological condition as described by an expert report in 1993 would contravene her appointment as expert. As to the method of obtaining the information employed the Court observes that the applicant had never argued that the medical expert report at issue had been obtained illegally. As to the veracity of the information, the truth of the content of the article under consideration was undisputed in the whole proceedings. Furthermore, the content of the article was balanced, informing on facts and not only intended to satisfy public curiosity. Beside a catchy sub-headline only facts and comments by third persons, clearly distinguished by quotation marks, were included. It was clearly stated that the expert report dated back to court proceedings in 1993 and that the applicant ’ s integrity had not been questioned for more than a decade. These facts were set out without any negative comment by the author.", "45. The Court further notes that a serious debate on the mental health status of a psychological expert, evoked by reasoned suspicions, has to be seen as a debate of general interest, as an expert in court proceedings is required to meet standards of physical and psychological fitness. This is all the more important as a court certified psychological expert, such as the applicant, plays an important and sometimes decisive role in the decision making process in child care proceedings and thus strongly influences not only the fate of families but also of individuals in an early and sensitive stage of personal development. In the eyes of the parties to the proceedings and the general public there must not be any doubts as to the mental fitness of such an expert in order to maintain public trust in the judiciary.", "46. The Court has already stated that, when it comes to the criticism of their actions, members of the judiciary should not be treated on an equal footing with politicians, as they do not lay themselves open to close scrutiny of their every word and deed to the extent to which the latter do. Nonetheless, civil servants acting in an official capacity may nevertheless be subject to wider limits of acceptable criticism than ordinary citizens (see with further references, July and SARL Libération v. France, no. 20893/03, § 74, ECHR 2008 (extracts)). The Courts of Appeal have based their decisions on the finding that the applicant, as a frequently appointed expert in court proceedings in the very sensitive field of child psychology and fosterage should be treated similarly to civil servants acting in an official capacity when it comes to examining whether a careful balance has been struck between the competing public and private interests. The Court does not see strong reasons to substitute its view for that of the domestic courts in regard to this finding.", "47. Nonetheless the Court observes that those who act in an official capacity must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I). In the present case however, there is no need to weigh the requirements of such protection against the interests of the freedom of the press or of open discussion of matters of public concern, since the article under consideration did not contain offensive or abusive verbal attacks.", "48. On these grounds, the Court is satisfied that the decisions of the Vienna Court of Appeal and of the Innsbruck Court of Appeal struck a fair balance between the competing interests in the present case.", "49. Consequently, the Court concludes that there has not been a violation of Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant is a freelance journalist who lives in Vienna. From 1992 to 1995 he was the editor of the official magazine of the Vienna Jewish community.", "A. Background", "7. In the beginning of 1995 the Academy of the Austrian Freedom Party ( Freiheitliche Partei Österreichs ) published an article in its yearbook, written by P., a professor of political sciences at Münster University. The article was entitled “Internationalism against nationalism: an eternal mortal enmity?” and alleged that the Jews had declared war on Germany in 1933. Moreover, it trivialised the crimes of the Nazi regime.", "8. In February 1995 the applicant published a commentary on this article in the magazine of the Vienna Jewish community. It was entitled “Freedom Party's 1995 yearbook with ( neo - )Nazi tones”. He criticised P. in harsh terms for using Nazi terminology and disseminating ideas which were typical of the “ Third Reich ”. More specifically, he accused P. of reviving the old Nazi lie of a worldwide Jewish conspiracy and of confounding the roles of perpetrators and victims.", "9. Subsequently, P. brought defamation proceedings under Article 111 of the Criminal Code ( Strafgesetzbuch ) against the applicant. The Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) acquitted the applicant. Its judgment was upheld on 4 May 1998 by the Vienna Court of Appeal ( Oberlandesgericht ), which found that the applicant's criticism constituted a value judgment which had a sufficient factual basis in the numerous quotations from P.'s article. Having regard to the publication of P.'s article in the yearbook of a political party and given the highly sensitive topic, the applicant's criticism, though harsh, was not excessive.", "10. Two years later, in April 2000, the Vienna Public Prosecutor's Office brought proceedings against P. on charges under the National Socialism Prohibition Act (“the Prohibition Act” – Verbotsgesetz ). Relying on numerous quotations from P.'s article in the Freedom Party's 1995 yearbook, the public prosecutor argued that the article constituted a national-socialist activity within the meaning of section 3g of the Prohibition Act. Shortly before the date scheduled for the trial, P. committed suicide.", "11. On 8 June 2000 the weekly Zur Zeit, a right - wing magazine whose chief editor M. was the former Chairperson of the Freedom Party's Academy, published a two- and -a- half - page article with the headline “The deadly terror of virtue ” ( “ Tödlicher Tugendterror ” ). It referred to the applicant's criticism of P.'s article in 1995 and alleged that the applicant's comment had unleashed a manhunt which had eventually resulted in the death of the victim. It referred to the applicant and a number of other persons, mostly politicians of the Austrian Socialist Party or the Green Party and also a number of journalists, a historian and a professor of political sciences, as members of a “ hunting society ” which used the Prohibition Act as a tool to attack persons close to the Freedom Party and had ultimately chased one victim to his death. The article was accompanied by pictures of the members of the alleged “ hunting society ”, including a picture of the applicant.", "12. The applicant brought defamation proceedings under Section 6 of the Media Act ( Mediengesetz ) against the publishing company owning Zur Zeit.", "13. On 20 March 2001 the Vienna Regional Criminal Court found that the article fulfilled the elements of defamation and ordered the defendant company to pay the applicant compensation under section 6 of the Media Act. In addition the defendant was ordered to publish the judgment.", "14. The Regional Court noted that the impugned article accused the applicant of being morally responsible for P .'s death. Certain facts were undisputed, namely that the applicant had written a critical commentary on P.'s article, that P. had been charged under the Prohibition Act and that he had died before the opening of the trial. However, the allegation that the applicant was part of a “hunting society”, that is, a group of persons persecuting P. and eventually causing his death, amounted to a statement of fact, the truth of which had not been established. In particular, the defendant company had not offered any proof for the causal link between the applicant's article and P.'s death. Even if the statement were to be treated as a value judgment, it was excessive as it presented a conclusion which went far beyond what could reasonably be based on the underlying facts. Thus, it transgressed the limits of criticism permitted by Article 10 of the Convention.", "15. On 15 October 2001 the Vienna Court of Appeal set the judgment aside on an appeal by the defendant.", "16. It found that the impugned article contained a value judgment which was, however, not excessive. The use of the term “hunting society” did not imply coordinated activities of a group of persons with the aim of destroying P.'s existence. Thus, the article could be understood as implying that the applicant's and other persons'activities had eventually caused P.'s death but it did not contain an accusation of their having foreseen or planned this outcome. The factual basis was sufficient to attribute some moral responsibility for P.'s death to the applicant and a number of other persons who had been active either by criticising P. in the media or by bringing actions against him in the courts. As regards the applicant, the article referred to his critical commentary on P.'s publication, thereby enabling the reader to assess whether or not he shared the opinion expressed in the impugned article. Moreover, the reader was aware that the article was written from a political and ideological point of view and involved a certain degree of exaggeration. In sum, it remained within the limits of permissible criticism set by Article 10 of the Convention.", "B. The proceedings at issue", "17. Meanwhile, in February 2001 M. addressed a three- page letter to the subscribers to Zur Zeit asking them for financial support. As a reason for this request readers were told that the weekly Zur Zeit was under massive pressure from anti - fascists who, after having campaigned against Kurt Waldheim, Jörg Haider and other “undesirables”, had now chosen Zur Zeit as their target. It alleged that the above -mentioned group was trying to damage Zur Zeit by means of disinformation in the media and by instituting a multitude of criminal proceedings and civil actions.", "The relevant passage of this letter reads as follows:", "“Then there is the case of Karl Pfeifer v. Zur Zeit. The long-standing editor of the Jewish religious community's magazine, Karl Pfeifer, was identified following Professor P .'s [family name in full] death as a member of the hunting society that drove the conservative political scientist to his death. It was common knowledge that court proceedings were due to be opened against P. under the Nazi Prohibition Act on account of his statements in the Freedom Party's 1995 yearbook. The Jewish journalist Karl Pfeifer had condemned the statements for their Nazi tone and as a result had unleashed the judicial avalanche against P. When Zur Zeit dared to show that this was the cause of the suicide, Pfeifer lodged a complaint. The extremely complex, time-consuming and costly proceedings, naturally accompanied by a corresponding media campaign in the trendy left-wing rags, are still in progress. ”", "18. On 15 March 2001 the applicant brought a further set of defamation proceedings under Article 111 of the Criminal Code against M. and under section 6 of the Media Act against the publishing company owning Zur Zeit.", "19. On 4 September 2001 the Vienna Regional Criminal Court decided to adjourn the proceedings pending the Vienna Court of Appeal's judgment in the first set of defamation proceedings. Once the latter had given its judgment of 15 October 2001 (see paragraphs 15 and 16 above ), the Regional Court resumed the proceedings.", "20. On 31 January 2002 the Regional Court acquitted the defendants. It noted that the two sets of defamation proceedings related to very similar factual and legal issues. Again, as in the article “The deadly terror of virtue”, the applicant was referred to as a member of a “ hunting society ” which had driven P. to commit suicide. Thus, it was alleged that there was a causal link between the applicant's criticism of P.'s article and the latter's death. The considerations which had led the Court of Appeal to acquit the defendants in the first set of proceedings also applied in the present case. The Regional Court followed the appellate court's view expressed in the judgment of 15 October 2001 and found that the impugned letter contained a value judgment which relied on a sufficient factual basis. In this connection, it noted that addressees of the letter, even if they had not read the article “The deadly terror of virtue”, were given a summary of its contents which enabled them to form an opinion about the pertinence of the allegation raised. The value judgment was not excessive, although the underlying facts were commented on from a strongly ideological point of view. It followed that the publication at issue was protected by Article 10 of the Convention.", "21. On 1 August 2002 the Vienna Court of Appeal dismissed an appeal by the applicant, upholding the Regional Court's assessment that the two sets of proceedings were so closely linked that the principles and considerations set out in its previous judgment of 15 October 2001 applied.", "22. The judgment was served on the applicant's counsel on 7 October 2002." ]

[ "II. RELEVANT DOMESTIC LAW", "23. Article 111 of the Criminal Code ( Strafgesetzbuch ), reads as follows:", "“1. Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...", "2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine...", "3. The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”", "24. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation ” has to be read as defined in Article 111 of the Criminal Code.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "25. The applicant complained that the Austrian courts had failed to protect his reputation against the allegations contained in Mr M.'s letter to the subscribers to Zur Zeit. He relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "26. The Government contested that argument.", "A. Admissibility", "27. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties'submissions", "28. The applicant asserted that the Austrian courts had wrongly qualified the impugned statement as a value judgment. In his view the accusation of being a “member of a hunting society” presupposed coordinated activities by several persons with the aim of driving Professor P. to his death, amounting to factual allegations which were not supported by any proof since the applicant, acting alone without any cooperation or coordination with others, had done no more than publish one article criticising views voiced by P. He had done so in 1995, years before P.'s prosecution under the Prohibition Act and eventual suicide. Clearly, there was no causal link between the applicant's article and P.'s suicide.", "29. It had to be taken into account that P. had at the time brought proceedings against the applicant, which had remained unsuccessful since the courts had found that the applicant had remained within the limits of acceptable criticism. In fact, he had not accused P. of being a neo-Nazi or of having committed offences under the Prohibition Act, but had only reproached him with employing Nazi tones.", "30. Even if the statement were to be regarded as a value judgment it lacked a sufficient factual basis. Freedom of political speech reached its limits in a case such as the present one, where the applicant's opponents had damaged his reputation by making unfounded allegations.", "31. The Government accepted that the State's obligations under Article 8 could extend to the adoption of measures designed to secure respect for private life in the sphere of relations between individuals. They went on to say that what was decisive in weighing the applicant's right to the protection of his private life against the right to freedom of expression was whether and to what extent the statement at issue had made a contribution to a debate of general interest. The impugned statement in the letter to subscribers to Zur Zeit and the related previous article had to be seen in the context of an ongoing political discussion between persons of different ideological convictions.", "32. Referring to the Court's case-law under Article 10 of the Convention, the Government asserted that, given the interest in a free exchange of political opinions, including those that offend, shock or disturb, the Austrian courts could reasonably have considered that the statement referring to the applicant as a “member of a hunting society that eventually caused P.'s suicide” was a value judgment which had a sufficient factual basis. The applicant, though not a politician, had participated in a political debate and was therefore himself required to show a higher degree of tolerance towards criticism. In sum, the Austrian courts had not breached the applicant's rights under Article 8 in attaching greater weight to the freedom of expression than to the applicant's interest in the protection of his reputation.", "2. The Court's assessment", "33. As to the applicability of Article 8, the Court reiterates that “private life” extends to aspects relating to personal identity, such as a person's name or picture, and furthermore includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, with further references).", "34. The Court has found the publication of a person's photo to fall within the scope of his or her private life even where the person concerned was a public figure (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002, and Von Hannover, cited above, § 53 ).", "35. What is at issue in the present case is a publication affecting the applicant's reputation. It has already been accepted in the Convention organs'case-law that a person's right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life. In Chauvy and Others v. France ( no. 64915/01, § 70, ECHR 2004 ‑ VI ), concerning a case brought under Article 10, the Court found that a person's reputation, which was affected by the publication of a book, was protected by Article 8 as part of the right to respect for private life and had to be balanced against the right to freedom of expression (this approach was followed in Abeberry v. France (dec.), no. 58729/00, 21 September 2004, and Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 67, 9 November 2006). In White v. Sweden ( no. 42435/02, §§ 19 and 30, 19 September 2006), relating to a complaint under Article 8, the right to protection of one's reputation against allegedly defamatory statements in newspaper articles was considered to fall within the scope of “private life” (see also, mutatis mutandis, Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, in which a complaint about the alleged failure to protect a person against a critical newspaper article was considered to fall within the scope of “private life” as protected by Article 8, while the question whether that Article embodied a right to protection of reputation and honour as such was left open in Gunnarsson v. Iceland (dec.), no. 4591/04, 20 October 2005). Finally, in Fayed and the House of Fraser Holdings plc v. the United Kingdom (no. 17101/90, Commission decision of 15 May 1992), the European Commission of Human Rights had found that the publication of certain findings in a report drawn up by the State authorities constituted an interference with the applicants'right to respect for their private life within the meaning of Article 8. The Court considers that a person's reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her “private life”. Article 8 therefore applies. This is not disputed by the parties.", "36. The Court notes that the applicant did not complain of an action by the State but rather of the State's failure to protect his reputation against interference by third persons.", "37. The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundary between the State's positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover, cited above, § 57, with further references).", "38. The main issue in the present case is whether the State, in the context of its positive obligations under Article 8, has achieved a fair balance between the applicant's right to protection of his reputation, which is an element of his “private life” and the other party's right to freedom of expression guaranteed by Article 10 of the Convention ( ibid. , § 58; see also Chauvy and Others, cited above, § 70 ).", "39. The present case has to be seen against a background of an ongoing dispute which was fought out in the media and before the Austrian courts.", "40. It had started with P.'s contribution in the 1995 yearbook of the Austrian Freedom Party and the applicant's commentary in the official magazine of the Vienna Jewish Community, criticising him for employing ( neo ‑ )Nazi tones. P.'s action for defamation against the applicant under Article 111 of the Criminal Code had remained unsuccessful, since the courts found that the applicant's criticism, though harsh, was a value judgment with a sufficient factual basis (see paragraph 9 above).", "41. Following the institution of criminal proceedings by the Public Prosecutor against P. under the Prohibition Act in April 2000 on account of the article published in the 1995 yearbook, and P .'s suicide shortly before the trial, the struggle had continued with a publication in the weekly Zur Zeit in June 2000, which referred to the applicant and a number of other persons as members of a “ hunting society ” which had chased P. to his death. The applicant's action for defamation remained unsuccessful. While the first - instance court considered the statement to be a statement of fact, the truth of which had not been established, or alternatively, an excessive value judgment (see paragraphs 13 and 14 above ), the appellate court treated it as a value judgment which was not excessive. In essence it found that the applicant's and other persons'actions concerning P. provided a sufficient factual basis for holding them morally responsible for P.'s death (see paragraphs 15 and 16 above).", "42. In the proceedings which are now at issue, the domestic courts had to decide whether the statements in Mr M .'s letter to the subscribers to Zur Zeit, again accusing the applicant of being a “member of a hunting society” which had caused P. to commit suicide, fulfilled the elements of the offence of defamation. They followed the approach taken in the previous set of proceedings and considered the impugned statement to be a value judgment relying on a sufficient factual basis. In sum they considered that the statement, though made from a strongly ideological point of view, was not excessive (see paragraphs 20-21 above).", "43. Having regard to the background of the case, the Court reiterates its case- law under Article 10 relating to the essential role the press plays in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many other authorities, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003 ‑ XI, and Von Hannover, cited above, § 58 ). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (ibid.).", "44. In this context, the Court considers that the State's obligation under Article 8 to protect the applicant's reputation may arise where statements going beyond the limits of what is considered acceptable criticism under Article 10 are concerned. The Court will therefore examine whether or not the Austrian courts failed to protect the applicant against excessive criticism.", "45. As regards the general principles relating to the freedom of the press in the context of political debate, the Court refers to the summary of its established case-law in the cases of Feldek v. Slovakia (no. 29032/95, §§ 72-74, ECHR 2001 ‑ VIII, with further references) and Scharsach and News Verlagsgesellschaft ( cited above, § 30 ). It reiterates that there is little scope under Article 10 § 2 for restrictions on political speech or on debate on questions of public interest (see, among many other authorities, Feldek, cited above, § 74). Moreover, the Court notes that the applicant was himself a person in the public eye, whose criticism of P.'s publication had been framed in strong terms (see, mutatis mutandis, Minelli, cited above).", "46. Much of the parties'argument in the present cases relates to the characterization of the text at issue as a statement of fact or as a value judgment. In this context, the Court reiterates its established case-law to the effect that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. Where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see, for instance, Feldek, cited above, §§ 75-76; Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001 ‑ II; De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997- I, p. 236, § 47; and Oberschlick v. Austria (no. 2), judgment of 1 July 1997, Reports 1997 ‑ IV, p. 1276, § 33 ). As the Court has noted in previous cases, the difference lies in the degree of factual proof which has to be established (see Scharsach and News Verlagsgesellschaft, cited above, § 40).", "47. The Court is not convinced by the domestic courts'assessment that the statements at issue are value judgments. The statement “Karl Pfeifer was identified following Professor P.'s death as a member of a hunting society that drove the political scientist to his death” clearly establishes a causal link between the applicant's and other persons'actions, and P.'s suicide in 2000. This was explicitly accepted by the domestic courts in the present proceedings (see paragraph 20 above). Whether or not an act has a causal link with another is not a matter of speculation, but is a fact susceptible of proof. Although it is undisputed that the applicant had written a critical commentary on P.'s article in 1995 and that, years later, in 2000, P. had been charged under the Prohibition Act in relation to this article and had committed suicide, the defendant had not offered any proof for the alleged causal link between the applicant's article and P.'s death. It is true that statements that shock or offend the public or a particular person are also protected by the right to freedom of expression under Article 10. However, the statement here at issue went beyond that, claiming that the applicant had caused Professor P.'s death by ultimately driving him to commit suicide. By writing this, Mr M.'s letter to the subscribers to Zur Zeit overstepped acceptable limits, because it in fact accused the applicant of acts tantamount to criminal behaviour.", "48. Even if the statement were to be understood as a value judgment in so far as it implied that the applicant and others were morally responsible for P .'s death, the Court considers that it lacked a sufficient factual basis. The use of the term “member of a hunting society” implies that the applicant was acting in cooperation with others with the aim of persecuting and attacking P. There is no indication, however, that the applicant, who merely wrote one article at the very beginning of a series of events and did not take any further action thereafter, acted in such a manner or with such an intention. Furthermore, it needs to be taken into account that the article written by the applicant, for its part, did not transgress the limits of acceptable criticism.", "49. In those circumstances the Court is not convinced that the reasons advanced by the domestic courts for protecting freedom of expression outweighed the right of the applicant to have his reputation safeguarded. The Court therefore considers that the domestic courts failed to strike a fair balance between the competing interests involved.", "There has accordingly been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "51. The applicant claimed 30,000 euros (EUR) in respect of non- pecuniary damage. He argued that given his personal history (being Jewish, he had had to flee from Austria in 1938 and many of his family members had been killed by the Nazi regime), he had suffered particularly from the fact the courts had failed to protect him against the wrongful accusation that he had driven P. to his death in collaboration with others.", "52. The Government considered that the finding of a violation would provide sufficient compensation for any non-pecuniary damage suffered by the applicant.", "53. The Court accepts that the failure to protect the applicant's reputation against the accusations at issue must have caused him feelings of distress. Making an assessment on an equitable basis it awards the applicant EUR 5,000 as compensation for non-pecuniary damage.", "B. Costs and expenses", "54. The applicant also claimed EUR 6,572.72 for the costs and expenses incurred before the domestic courts and EUR 5,551. 38 for those incurred before the Court. These sums included value-added tax (VAT).", "55. The Government commented that the costs for two requests for adjournment should be deducted from the costs incurred in the domestic proceedings, since they had not served to prevent the alleged violation. Furthermore, they argued that the amount claimed for the Convention proceedings was excessive. Applying the fees due under domestic law, only an amount of EUR 3,205.62, including VAT, was to be reimbursed.", "56. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum.", "57. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10,000, covering costs under all heads.", "C. Default interest", "58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1957 and lives in Kyiv.", "A. Background to the case", "8. In 1983 the applicant was appointed to the post of judge of a district court. At the material time, domestic law did not require judges to take an oath upon taking office.", "9. On 5 June 2003 the applicant was elected to the post of judge of the Supreme Court.", "10. On 2 December 2005 he was also elected Deputy President of the Council of Judges of Ukraine (a body of judicial self-governance).", "11. On 30 March 2007 the applicant was elected President of the Military Chamber of the Supreme Court.", "12. On 26 June 2007 the Assembly of Judges of Ukraine found that another judge, V.P., could no longer act as a member of the HCJ and that her office should be terminated. V.P. challenged that decision before the courts. She further complained to the Parliamentary Committee on the judiciary ( Комітет Верховної Ради України з питань правосуддя ) [1] (“the Parliamentary Committee”) in relation to the matter.", "13. On 7 December 2007 the Assembly of Judges of Ukraine elected the applicant to the post of member of the HCJ and asked Parliament to arrange for the applicant to take the oath as a member of the HCJ in order to allow him to take up office, as required by section 17 of the HCJ Act 1998. A similar proposal was also submitted by the President of the Council of Judges of Ukraine.", "14. In reply, the Chairman of the Parliamentary Committee, S.K., who was also a member of the HCJ, informed the Council of Judges of Ukraine that that issue had to be carefully examined together with V.P.’s submissions alleging that the decision of the Assembly of Judges of Ukraine to terminate her office as a member of the HCJ had been unlawful.", "15. The applicant did not assume office as a member of the HCJ.", "B. Proceedings against the applicant", "16. Meanwhile, S.K. and two members of the Parliamentary Committee lodged requests with the HCJ, asking that it carry out preliminary inquiries into possible professional misconduct by the applicant, referring, among other things, to V.P.’s complaints.", "17. On 16 December 2008 R.K., a member of the HCJ, having conducted preliminary inquiries, lodged a request with the HCJ asking it to determine whether the applicant could be dismissed from the post of judge for “breach of oath”, claiming that on several occasions the applicant, as a judge of the Supreme Court, had reviewed decisions delivered by Judge B., who was his relative, namely his wife’s brother. In addition, when participating as a third party in proceedings instituted by V.P. (concerning the above-mentioned decision of the Assembly of Judges of Ukraine to terminate her office), the applicant had failed to request the withdrawal of the same judge, B., who was sitting in the chamber of the court of appeal hearing that case. On 24 December 2008 R.K. supplemented his request by giving additional examples of cases which had been determined by Judge B. and then reviewed by the applicant. Some of the applicant’s actions which served as a basis for the request dated back to November 2003.", "18. On 20 March 2009 V.K., a member of the HCJ, having conducted preliminary inquiries, lodged another request with the HCJ seeking the applicant’s dismissal from the post of judge for “breach of oath”, claiming that the applicant had committed a number of gross procedural violations when dealing with cases concerning corporate disputes involving a limited liability company. Some of the applicant’s actions which served as a basis for the request dated back to July 2006.", "19. On 19 December 2008 and 3 April 2009 these requests were communicated to the applicant.", "20. On 22 March 2010 V.K. was elected President of the HCJ.", "21. On 19 May 2010 [2] the HCJ invited the applicant to a hearing on 25 May 2010 concerning his dismissal. In a reply of 20 May 2010 [3], the applicant informed the HCJ that he could not attend that hearing as the President of the Supreme Court had ordered him to travel to Sevastopol from 24 to 28 May 2010 to provide advice on best practice to a local court. The applicant asked the HCJ to postpone the hearing.", "22. On 21 May 2010 the HCJ sent a notice to the applicant informing him that the hearing concerning his dismissal had been postponed until 26 May 2010. According to the applicant, he received the notice on 28 May 2010.", "23. On 26 May 2010 the HCJ considered the requests lodged by R.K. and V.K. and adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. V.K. presided at the hearing. R.K. and S.K. also participated as members of the HCJ. The applicant was absent.", "24. The decisions were voted on by the sixteen members of the HCJ who were present, three of whom were judges.", "25. On 31 May 2010 V.K., as President of the HCJ, introduced two submissions to Parliament for the dismissal of the applicant from the post of judge.", "26. On 16 June 2010, during a hearing presided over by S.K., the Parliamentary Committee examined the HCJ’s submissions concerning the applicant and adopted a recommendation for his dismissal. The members of the Committee who had requested that the HCJ conduct preliminary inquiries in respect of the applicant also voted on the recommendation. In addition to S.K., another member of the Committee had previously dealt with the applicant’s case as a member of the HCJ and had subsequently voted on the recommendation as part of the Committee. According to the file as it stood on the date of the Court’s deliberations, [4] the applicant was absent from the Committee hearing.", "27. On 17 June 2010 the HCJ’s submissions and the recommendation of the Parliamentary Committee were considered at a plenary meeting of Parliament. The floor was given to S.K. and V.K., who reported on the applicant’s case. The applicant was present at the meeting. After deliberation, Parliament voted for the dismissal of the applicant from the post of judge for “breach of oath” and adopted a resolution to that effect.", "28. According to the applicant, during the electronic vote, the majority of Members of Parliament (MPs) were absent. The MPs present used voting cards which belonged to their absent peers. Statements by MPs about the misuse of voting cards and a video recording of the relevant part of the plenary meeting have been submitted to the Court.", "29. The applicant challenged his dismissal before the HAC. The applicant claimed that: the HCJ had not acted independently and impartially; it had not properly informed him of the hearings in his case; it had failed to apply the procedure for dismissal of a judge of the Supreme Court provided for in Chapter 4 of the HCJ Act 1998, which offered a set of procedural guarantees such as notification of the judge concerned about the disciplinary proceedings and his active participation therein, a time frame for the proceedings, secret ballot voting, and a limitation period for disciplinary penalties; the HCJ’s findings had been unsubstantiated and unlawful; the Parliamentary Committee had not given him a hearing and had acted in an unlawful and biased manner; and Parliament had adopted a resolution on the applicant’s dismissal in the absence of a majority of the MPs, which was in breach of Article 84 of the Constitution, section 24 of the Status of Members of Parliament Act 1992 and Rule 47 of the Rules of Parliament.", "30. The applicant therefore requested that the impugned decisions and submissions made by the HCJ and the parliamentary resolution be declared unlawful and quashed.", "31. In accordance with Article 171-1 of the Code of Administrative Justice (“the Code”), the case was allocated to the special chamber of the HAC.", "32. The applicant sought the withdrawal of the chamber, claiming that it was unlawfully constituted and that it was biased. His application was rejected as unsubstantiated. According to the applicant, a number of his requests for various pieces of evidence to be collected and admitted and for witnesses to be summoned were rejected.", "33. On 6 September 2010 the applicant supplemented his claim with the statements of MPs about the misuse of voting cards during the vote on his dismissal and a video recording of the relevant part of the plenary meeting.", "34. After several hearings, on 19 October 2010 the HAC considered the applicant’s claim and adopted a judgment. It found that the applicant had taken up the office of judge in 1983, when domestic law had not envisaged the taking of an oath by a judge. The applicant had, however, been dismissed for a breach of the fundamental standards of the judicial profession, which were set forth in sections 6 and 10 of the Status of Judges Act 1992 and had been legally binding at the time of the actions committed by the applicant.", "35. The court further found that the HCJ’s decision and submission made in respect of R.K.’s request had been unlawful, because the applicant and Judge B. had not been considered relatives under the legislation in force at the material time. In addition, as to the proceedings in relation to which the applicant had been a third party, he had had no obligation to seek the withdrawal of Judge B. However, the HAC refused to quash the HCJ’s acts in respect of R.K.’s request, noting that in accordance with Article 171-1 of the Code it was not empowered to take such a measure.", "36. As regards the decision and submission made by the HCJ in respect of V.K.’s request, they were found to be lawful and substantiated.", "37. As to the applicant’s contentions that the HCJ should have applied the procedure provided for in Chapter 4 of the HCJ Act 1998, the court noted that in accordance with section 37 § 2 of that Act that procedure applied only to cases involving such sanctions as reprimands or downgrading of qualification class. Liability for “breach of oath” in the form of dismissal was envisaged by Article 126 § 5 (5) of the Constitution and the procedure to be followed was different, namely the one described in section 32 of the HCJ Act 1998, contained in Chapter 2 of that Act. The court concluded that the procedure cited by the applicant did not apply to the dismissal of a judge for “breach of oath”. There had therefore been no grounds to apply the limitation periods referred to in section 36 of the Status of Judges Act 1992 and section 43 of the HCJ Act 1998.", "38. The court then found that the applicant had been absent from the hearing at the HCJ without a valid reason. It further noted that there had been no procedural violations in the proceedings before the Parliamentary Committee. As to the alleged procedural violations at the plenary meeting, the parliamentary resolution on the applicant’s dismissal had been voted for by the majority of Parliament and this had been confirmed by roll-call records. The court further noted that it was not empowered to review the constitutionality of the parliamentary resolutions, as this fell within the jurisdiction of the Constitutional Court.", "39. The hearings at the HAC were held in the presence of the applicant and the other parties to the dispute.", "C. Events connected with the appointment of presidents and deputy presidents of the domestic courts and, in particular, the president of the HAC", "40. On 22 December 2004 the President of Ukraine, in accordance with section 20 of the Judicial System Act 2002, appointed Judge P. to the post of president of the HAC.", "41. On 16 May 2007 the Constitutional Court found that section 20(5) of the Judicial System Act 2002, concerning the procedure for appointing and dismissing presidents and deputy presidents of the courts by the President of Ukraine, was unconstitutional. It recommended that Parliament adopt relevant legislative amendments to regulate the issue properly.", "42. On 30 May 2007 Parliament adopted a resolution introducing a temporary procedure for the appointment of presidents and deputy presidents of the courts. The resolution provided the HCJ with the power to appoint the presidents and deputy presidents of the courts.", "43. On the same date, the applicant challenged the resolution before the court claiming, inter alia, that it was inconsistent with the HCJ Act 1998 and other laws of Ukraine. The court immediately delivered an interlocutory decision suspending the effect of the resolution.", "44. On 31 May 2007 the Council of Judges of Ukraine, having regard to the legislative gap resulting from the Constitutional Court’s decision of 16 May 2007, adopted a decision assigning itself temporary power to appoint the presidents and deputy presidents of the courts.", "45. On 14 June 2007 the parliamentary gazette published an opinion by the Chairman of the Parliamentary Committee, S.K., stating that the local courts had no power to review the above-mentioned resolution of Parliament and that the judges reviewing that resolution would be dismissed for “breach of oath”.", "46. On 26 June 2007 the Assembly of Judges of Ukraine endorsed the decision of the Council of Judges of Ukraine of 31 May 2007.", "47. On 21 February 2008 the court reviewing the parliamentary resolution quashed it as unlawful.", "48. On 21 December 2009 the Presidium of the HAC decided that Judge P. should continue performing the duties of president of the HAC after the expiry of the five-year term provided for in section 20 of the Judicial System Act 2002.", "49. On 22 December 2009 the Constitutional Court adopted a decision interpreting the provisions of section 116(5)(4) and section 20(5) of the Judicial System Act 2002. It found that those provisions were only to be understood as empowering the Council of Judges of Ukraine to give recommendations for the appointment of judges to administrative posts by another body (or an official) defined by the law. The court further obliged Parliament to comply immediately with the decision of 16 May 2007 and to introduce relevant legislative amendments.", "50. On 24 December 2009 the Conference of Judges of the Administrative Courts decided that Judge P. should continue to act as President of the HAC.", "51. On 25 December 2009 the Council of Judges of Ukraine quashed the decision of 24 December 2009 as unlawful and noted that, by virtue of section 41(5) of the Judicial System Act 2002, the First Deputy President of the HAC, Judge S., was required to perform the duties of president of that court.", "52. On 16 January 2010 the General Prosecutor’s Office issued a press release noting that the body or public official empowered to appoint and dismiss presidents of the courts had not yet been specified in the laws of Ukraine, while the Council of Judges of Ukraine was only entitled to give recommendations on those issues. Judge P. had not been dismissed from the post of president of the HAC and therefore continued to occupy it lawfully.", "53. Judge P. continued to act as President of the HAC.", "54. On 25 March 2010 the Constitutional Court found that the parliamentary resolution of 30 May 2007 was unconstitutional.", "55. The Chamber of the HAC dealing with the cases referred to in Article 171-1 of the Code was set up in May and June 2010 through the use of the procedure provided for in section 41 of the Judicial System Act 2002.", "III. COUNCIL OF EUROPE MATERIAL", "A. European Charter on the statute for judges (Department of Legal Affairs of the Council of Europe, 8-10 July 1998 DAJ/DOC (98)23)", "78. The relevant extracts from Chapter 5 of the Charter, “Liability”, read as follows:", "“5.1. The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.”", "B. Opinion of the Venice Commission", "79. The relevant extracts from the Joint opinion by the Venice Commission and the Directorate of Co-operation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe on the law amending certain legislative acts of Ukraine in relation to the prevention of abuse of the right to appeal, adopted by the Venice Commission at its 84th Plenary Session (Venice, 15-16 October 2010, CDL-AD(2010)029), read as follows (emphasis added in the original text):", "“28. Apparently in a welcome effort to overcome the problem of the low number of judges in the High Council of Justice, the Final Provisions under Section XII;3 (Amendments to the legal Acts of Ukraine) of the Law on the Judiciary and the Status of Judges the amendments 3.11 to the Law of Ukraine ‘On the High Council of Justice’ now provide that two of the three members of the High Council for Justice, which are appointed by the Verkhovna Rada (Article 8.1) and the President of Ukraine (Article 9.1) respectively, one of three members appointed by the Congress of Judges (Article 11.1), and one of three members appointed by the Congress of Representatives of Legal Higher Education Institutions and Research Institutions (Article 12.1) are appointed from the ranks of judges. The All-Ukrainian Conference of Prosecutors shall appoint two members to the HCJ, one of whom shall be appointed from among the judges (Article 13.1).", "29. Nonetheless, the composition of the High Council of Justice of Ukraine still does not correspond to European standards because out of 20 members only three are judges elected by their peers. The final provisions in effect acknowledge that the judicial element in the High Council of Justice should be higher, but the solution chosen is to require the Parliament, the President, the educational institutions and the prosecutors to elect or appoint judges. ... In the current composition, one judge is a member ex officio (the Chairman of the Supreme Court) and some of the members appointed by the President and Parliament are de facto judges or former judges, but there is no legal requirement for this to be the case until the mandates of the present members expire. Together with the Minister of Justice and the General Prosecutor, 50% of the members belong to or are appointed by the executive or legislature. Therefore the High Council of Justice cannot be said to consist of a substantial part of judges. It may sometimes be the case in older democracies that the executive power has a decisive influence and in some countries, such systems may work acceptably in practice. The Ukrainian authorities themselves during the meetings in Kyiv referred to Ukraine as a transition democracy which is happy to use the experience of other countries. As it has been stated in former opinions, ‘New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse and therefore, at least in these countries, explicit constitutional and legal provisions are needed as a safeguard to prevent political abuse in the appointment of judges’.", "30. The actual composition of the HCJ may well allow concessions to the interplay of parliamentary majorities and pressure from the executive, but this cannot overcome the structural deficiency of its composition. This body may not be free from any subordination to political party consideration. There are not enough guarantees ensuring that the HCJ safeguards the values and fundamental principles of justice. The composition is set up in the Constitution and a constitutional amendment would be required. The inclusion of the Prosecutor General as [an] ex officio member raises particular concerns, as it may have a deterren[t] effect [on] judges and be perceived as a potential threat. The Prosecutor General is a party to many cases which the judges have to decide, and his presence on a body concerned with the appointment, disciplining and removal of judges creates a risk that judges will not act impartially in such cases or that the Prosecutor General will not act impartially towards judges whose decisions he disapproves of. Consequently, the composition of the HCJ of Ukraine does not correspond to European standards. As a changed composition would require an amendment of the Constitution and this may be difficult, the Law should include, in order to counterbalance the flawed composition of the HCJ, a stronger regulation of incompatibilities. Taking into account the powers granted to the HCJ, it should work as a full time body and the elected members, unlike the ex officio members, should not be able to exercise any other public or private activity while sitting in the HCJ.", "...", "42. ... Taking into account that the Minister of Justice and the Procurator General of Ukraine are members ex officio of the HCJ (Article 131 of the Constitution), and that the Ukrainian Constitution does not guarantee that the HCJ will be composed of a majority or substantial number of judges elected by their peers, the submitting of proposals for dismissal by members of the executive might impair the independence of the judges ... In any event, the member of the HCJ who submitted the proposal should not be allowed to take part in the decision to remove from office the relevant judge : this would affect the guarantee of impartiality. ...", "45. ... Precision and forseeability of the grounds for disciplinary liability is desirable for legal certainty and particularly to safeguard the independence of the judges; therefore an effort should be made to avoid vague grounds or broad definitions. However, the new definition includes very general concepts, such as ‘the [commission] of actions that dishonour a judicial office or may cause doubts [as to] his/her impartiality, objectivity and independence, [or the] integrity, incorruptibility of the judiciary’ and ‘violation of moral and ethical principles of human conduct’ among others. This seems particularly dangerous because of the vague terms used and the possibility of using it as a political weapon against judges. ... Thus, the grounds for disciplinary liability are still too broadly conceived and a more precise regulation is required to guarantee judicial independence.", "46. Finally, Article 32, in its last paragraph, requires decisions about the submission of the HCJ’s petition regarding dismissal of a judge to be taken by a simple rather than a two-thirds majority. In the light of the flawed composition of the HCJ, this is a regrettable step which would go against the independence of the judges.", "...", "51. Finally, the composition of the ... highly influential so-called ‘fifth chamber’ of the [Higher] Administrative Court should be precisely determined by the law in order to comply with the requirements of the fundamental right of access to a court pre ‑ established by the law. ...”", "C. Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Ukraine (19 ‑ 26 November 2011), CommDH(2012)10, 23 February 2012", "80. The relevant extracts from the report read as follows:", "“II. Issues relating to the independence and impartiality of judges", "The independence of the judiciary – which also implies the independence of each individual judge – should be protected both in law and in practice. The Commissioner noted with concern that, in the public perception in Ukraine, judges are not shielded from outside pressure, including of a political nature. Decisive action is needed on several fronts to remove the factors which render judges vulnerable and weaken their independence. The authorities should carefully look into any allegations of improper political or other influence or interference in the work of the judicial institutions and ensure effective remedies.", "The Commissioner calls upon the Ukrainian authorities to fully implement the Venice Commission’s recommendations regarding the need to streamline and clarify the procedures and criteria related to the appointment and dismissal of judges, as well as the application of disciplinary measures. It is essential to institute adequate safeguards to ensure fairness and eliminate the risk of politicisation in disciplinary procedures. As for the judicial appointment process, the qualifications and merit of the individual candidates should be decisive.", "The present composition of the High Council of Justice does not correspond to international standards and should be changed; this will require constitutional amendment. ...", "20. ... In November 2011 Deputy Prosecutor General Myhailo Havryliuk, who is a member of the High Council of Justice, announced that disciplinary proceedings had been initiated against members of the criminal chamber of the Supreme Court on the grounds that they had violated their oath. The Commissioner received allegations that these developments amounted to pressure by the executive branch on this judicial institution aimed at influencing the outcome of the elections of the next Chairman of the Supreme Court.", "...", "35. The Constitution and the Law on the Judiciary and the Status of Judges provides for the dismissal of a judge by the body that elected or appointed him or her, upon a motion by the High Council of Justice. Several of the Commissioner’s interlocutors underlined that, considering the current composition of the High Council of Justice (HCJ), the risk that such a decision might be initiated because of political or similar considerations was quite high. Such considerations may also play a role in the context of a decision by the Parliament to dismiss a judge elected for life. Therefore, additional safeguards should be introduced both in law and in practice, with a view to protecting the independence of judges.", "36. There are provisions in the Constitution as well as in the Law on the Judiciary and the Status of Judges against undue pressure; however, these provisions should be further reinforced both in law and practice.", "...", "42. The Commissioner is in particular concerned by reports of the strong influence exercised by the prosecutorial and executive authorities upon judges through their representation in the High Council of Justice. In particular, the Commissioner was informed that there were occasions when disciplinary proceedings against judges had been initiated by members of the HCJ representing the Prosecutor’s Office for alleged breach of oath on the grounds of the substance of the judicial ruling in cases where the judges reportedly did not support the position [of] the prosecution (cf. also paragraph 20 above). In this context the Commissioner would like to recall that judges should not have reasons to fear dismissal or disciplinary proceedings against them because of the decisions they take.", "...", "Conclusions and recommendations", "46. The Commissioner underlines that a judicial appointment system should be fully shielded from improper political or other partisan influence. Decisions of judges should not be subject to revision beyond the ordinary appeal procedure. Disciplinary actions against judges should be regulated by precise rules and procedures, managed inside the court system, and not be amenable to political or any other undue influence.", "47. While the Commissioner is not in a position to comment on the veracity of the allegations of pressure upon judges of the Supreme Court described above (cf. paragraph 20), he nonetheless finds that the situation presents grounds for serious concern. The Ukrainian authorities should examine and address any allegations of interference in the work of judicial institutions. Officials from other branches of government should refrain from any actions or statements which may be viewed as an instrument of applying pressure on the work of judicial institutions or casting doubts as to their ability to exercise their duties effectively. Judges should not have reasons to fear dismissal or disciplinary proceedings against them because of the decisions they take. In addition, the opportunity presented by the current reform should be taken to affirm more solidly the independence of the judiciary from the executive.", "...”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution of 28 June 1996", "56. Article 6 of the Constitution proclaims that the State power in Ukraine is exercised on the basis of its separation into legislative, executive and judicial branches.", "57. Article 76 of the Constitution provides that MPs are to be elected from the citizens of Ukraine who have reached the age of twenty-one, have the right to vote and have lived in Ukraine for the last five years.", "58. Article 84 of the Constitution provides that MPs are to vote in person at sittings of Parliament.", "59. Article 126 § 5 of the Constitution reads as follows:", "“A judge shall be dismissed from office by the body which elected or appointed him or her in the event of:", "(1) the expiry of the term for which he or she was elected or appointed;", "(2) the judge’s attainment of the age of sixty-five;", "(3) inability to continue his or her duties for health reasons;", "(4) violation by the judge of the requirements concerning judicial incompatibility;", "(5) breach of oath by the judge;", "(6) the entry into legal force of a conviction against him or her;", "(7) the termination of his or her citizenship;", "(8) a declaration that he or she is missing, or a pronouncement that he or she is dead;", "(9) submission by the judge of a statement of resignation or of voluntary dismissal from office.”", "60. Articles 128 and 131 of the Constitution provide as follows:", "Article 128", "“The initial appointment of a professional judge to office for a five-year term shall be made by the President of Ukraine. All other judges, except for the judges of the Constitutional Court, shall be elected by Parliament for an indefinite term in accordance with the procedure established by law. ...”", "Article 131", "“The High Council of Justice shall operate in Ukraine. Its tasks shall comprise:", "(1) making submissions on the appointment or dismissal of judges;", "(2) adopting decisions with regard to the violation by judges and prosecutors of the requirements concerning judicial incompatibility;", "(3) conducting disciplinary proceedings in respect of judges of the Supreme Court and judges of higher specialised courts, and considering complaints against decisions imposing disciplinary liability on judges of courts of appeal and local courts and on prosecutors.", "The High Council of Justice shall consist of twenty members. The Parliament of Ukraine, the President of Ukraine, the Assembly of Judges of Ukraine, the Assembly of Advocates of Ukraine, and the Assembly of Representatives of Higher Legal Educational Establishments and Scientific Institutions, shall each appoint three members to the High Council of Justice, and the All-Ukrainian Conference of Prosecutors shall appoint two members to the High Council of Justice.", "The President of the Supreme Court, the Minister of Justice and the Prosecutor General shall be ex officio members of the High Council of Justice.”", "B. Criminal Code of 5 April 2001", "61. Article 375 of the Code provides:", "“1. The adoption by a judge (or judges) of a knowingly wrongful conviction, judgment, decision or resolution –", "shall be punishable by restriction of liberty for up to five years or by imprisonment from two to five years.", "2. The same acts, if they resulted in serious consequences or were committed for financial gain or for other personal interest –", "shall be punishable by imprisonment from five to eight years.”", "C. Code of Administrative Justice of 6 July 2005", "62. The relevant provisions of the Code read as follows:", "Article 161 – Questions to be determined by a court when deciding on a case", "“1. When deciding on a case, a court shall determine:", "(1) whether the circumstances referred to in the claim and objections took place and what evidence substantiates these circumstances;", "(2) whether there is any other factual information relevant to the case and evidence in support of that information;", "(3) which provision of law is to be applied to the legal relations in dispute;", "...”", "Article 171-1 – Proceedings in cases concerning acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the High Qualification Commission of Judges [the provision in force as from 15 May 2010]", "“1. The rules set down in this Article shall apply to proceedings in administrative cases concerning:", "(1) the lawfulness (but not constitutionality) of resolutions of Parliament, and decrees and orders of the President of Ukraine;", "(2) acts of the High Council of Justice; ...", "2. Acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the High Qualification Commission of Judges may be challenged before the Higher Administrative Court. For this purpose a separate chamber shall be set up in the Higher Administrative Court.", "...", "4. Administrative cases concerning acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the High Qualification Commission of Judges shall be considered by a bench composed of at least five judges ...", "5. Following the consideration of the case, the Higher Administrative Court may:", "(1) declare the act of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice or the High Qualification Commission of Judges unlawful in full or in part;", "(2) declare the actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice or the High Qualification Commission of Judges unlawful and oblige [it or them] to take certain measures. ...”", "D. The Law on the judicial system of 7 February 2002 with further amendments (“the Judicial System Act 2002”) (in force until 30 July 2010)", "63. The relevant provisions of the Act provide as follows:", "Section 20 – The procedure for the setting up of courts", "“...", "(5) The president and deputy president of a court shall be judges appointed to the relevant post for a five-year term, who may be dismissed from that post by the President of Ukraine on application by the President of the Supreme Court (and, in respect of the specialised courts, on application by the president of the relevant higher specialised court), on the basis of a recommendation by the Council of Judges of Ukraine (and, in respect of the specialised courts, a recommendation by the relevant council of judges). ...”", "By a decision of the Constitutional Court of 16 May 2007, the provision of section 20(5) of the Act concerning the appointment of presidents and deputy presidents of the courts by the President of Ukraine was declared unconstitutional.", "Section 41 – The president of a higher specialised court", "“(1) The president of a higher specialised court shall:", "...", "3. ... set up the chambers of the court; make proposals for the individual composition of the chambers, to be approved by the Presidium of the court;", "...", "(5) In the absence of the president of the higher specialised court, his duties shall be performed by the first deputy president, or, in the absence of the latter, by one of the deputy presidents of the court, according to the distribution of administrative powers.”", "Section 116 – The Council of Judges of Ukraine", "“(1) The Council of Judges of Ukraine shall operate as a higher body of judicial self-governance in the period between the sessions of the Assembly of Judges of Ukraine.", "...", "(5) The Council of Judges of Ukraine shall:", "...", "4. decide on the appointment of judges to administrative posts and their dismissal from those posts in the cases and in accordance with the procedure provided for by this Act;", "...", "(6) The decisions of the Council of Judges of Ukraine shall be binding on all bodies of judicial self-governance. A decision of the Council of Judges of Ukraine may be repealed by the Assembly of Judges of Ukraine.”", "E. The Law on the status of judges of 15 December 1992 with further amendments (“the Status of Judges Act 1992”) (in force until 30 July 2010)", "64. The relevant provisions of the Act provided as follows:", "Section 5 – Requirements of compatibility", "“A judge may not be a member of a political party or trade union, participate in any political activity, have been given any mandate of representation, have any other gainful occupation, or hold any other paid job with the exception of scientific, educational or artistic occupations.”", "Section 6 – Duties of judges", "“Judges shall be obliged:", "– to adhere to the Constitution and the laws of Ukraine when administering justice, and to ensure the full, comprehensive and objective consideration of cases within the time-limits fixed;", "– to comply with the requirements of section 5 of this Act and internal regulations;", "– not to divulge information which is classified as State, military, commercial or banking secrets ...", "– to refrain from any acts or actions which dishonour the judicial office and which may cause doubt as to their objectivity, impartiality and independence.”", "Section 10 – Judicial oath", "“Upon initial appointment, a judge shall solemnly take the following oath:", "‘I solemnly declare that I will honestly and rigorously perform the duties of judge, abide only by the law when administering justice, and be objective and fair.’", "The oath shall be taken before the President of Ukraine.”", "Section 31 – Grounds for disciplinary liability of judges", "“(1) A judge shall be liable to a disciplinary penalty for a disciplinary offence, that is, for a breach of:", "– legislation when considering a case;", "– the requirements of section 5 of this Act;", "– the duties set out in section 6 of this Act.", "(2) The revocation or amendment of a judicial decision shall not entail disciplinary liability for a judge who participated in the adoption of that decision, provided that there was no intent to violate the law or the requirements of rigorousness and that no serious consequences were brought about by that decision.”", "Section 32 – Types of disciplinary penalties", "“(1) The following disciplinary penalties may be imposed on judges:", "– reprimand;", "– downgrading of qualification class.", "(2) For each of the violations described in section 31 of this Act, only one disciplinary penalty shall be imposed. ...”", "Section 36 – Time-limits for imposing a disciplinary penalty and removing a disciplinary record", "“(1) A judge shall receive a disciplinary penalty within six months of the date the offence became known, excluding any period of temporary disability or leave.", "(2) If, within a year of the date the disciplinary measure was applied, the judge does not receive a new disciplinary penalty, that judge shall be treated as having no disciplinary record. ...”", "F. The Law on the High Council of Justice of 15 January 1998 (“the HCJ Act 1998”), as worded at the relevant time", "65. Section 6 of the Act, before the amendments of 7 July 2010, read as follows:", "“A citizen of Ukraine aged from 35 to 60 may be recommended for the post of member of [the HCJ] if he or she has a good command of the national language, has a higher legal education and at least ten years of work experience in the field of law and has been living in Ukraine for the last ten years.", "The requirements of subsection 1 of this section shall not be extended to individuals who are ex officio members of [the HCJ].", "Any attempt to influence a member of [the HCJ] shall be prohibited.”", "66. By the amendments of 7 July 2010, section 6 of the Act was supplemented with the following paragraph:", "“If this Act requires that a member of [the HCJ] should be a judge, that member shall be appointed from among the judges who have been elected for an indefinite term.”", "67. Sections 8 to 13 deal with the procedures for the appointment of members of the HCJ by the bodies designated in Article 131 of the Constitution.", "68. By the amendments of 7 July 2010, these sections were supplemented with additional requirements to the effect that ten members of the HCJ were to be appointed from the judicial corps by the bodies designated in Article 131 of the Constitution.", "69. Section 17 of the Act provides that, before entry into office, a member of the HCJ must take an oath at a sitting of Parliament.", "70. Section 19 of the Act provides that the HCJ comprises two sections. The work of the HCJ is coordinated by its president or, in his or her absence, the deputy president. The president, deputy president and heads of sections of the HCJ work on a full-time basis.", "71. The other relevant provisions of the Act provide as follows:", "Section 24 – Hearings before the High Council of Justice", "“... A hearing before the High Council of Justice shall be public. A private hearing shall be held upon a decision of the majority of the constitutional composition of the High Council of Justice ...”", "Section 26 – Withdrawal of a member of the High Council of Justice", "“A member of the High Council of Justice may not participate in the consideration of a matter and shall withdraw if it is established that he or she has a personal, direct or indirect interest in the outcome of the case ... In these circumstances the member of the High Council of Justice shall withdraw on his own initiative. In the same circumstances a person ... whose case is being considered ... shall be entitled to request the withdrawal of the member of the High Council of Justice. ...”", "Section 27 – Acts of the High Council of Justice", "“... The acts of the High Council of Justice may be challenged exclusively before the Higher Administrative Court in accordance with the procedure provided for in the Code of Administrative Justice.”", "72. Chapter 2 of the Act, “Consideration of matters concerning the dismissal of judges”, provides, in so far as relevant, as follows:", "Section 32 – A submission for the dismissal of a judge in special circumstances [wording of the section before 15 May 2010]", "“The High Council of Justice shall consider the question of dismissing a judge on the grounds provided for by Article 126 § 5 (4)-(6) of the Constitution upon receipt of the relevant opinion from the qualification commission or of its own motion. The judge concerned shall be sent a written invitation to attend the hearing before the High Council of Justice.", "The decision of the High Council of Justice to apply for dismissal of a judge under Article 126 § 5 (4) and (5) of the Constitution shall be taken by a two-thirds majority of the members of the High Council of Justice participating in the hearing, and, in the cases provided for by Article 126 § 5 (6) of the Constitution, by a majority of the constitutional composition of the High Council of Justice.”", "Section 32 – A submission for the dismissal of a judge in special circumstances [wording of the section as from 15 May 2010]", "“The High Council of Justice shall consider the question of dismissing a judge on the grounds provided for by Article 126 § 5 (4)-(6) of the Constitution (violation of judicial incompatibility requirements, breach of oath, entry into legal force of a conviction against a judge) upon receipt of the relevant opinion from the qualification commission or of its own motion.", "Breach of oath by a judge shall comprise:", "(i) the commission of actions which dishonour the judicial office and which may call into question his or her objectivity, impartiality and independence, as well as the fairness and incorruptibility of the judiciary;", "(ii) unlawful acquisition of wealth or expenditure by the judge which exceeds his or her income and the income of his family;", "(iii) deliberate delaying of the consideration of a case exceeding the time-limits fixed; [or]", "(iv) violation of the moral and ethical principles of the judicial code of conduct.", "The judge concerned shall be sent a written invitation to attend a hearing before the High Council of Justice. If the judge cannot participate in the hearing for a valid reason, he or she shall be entitled to make written submissions, which shall be included in the case file. The written submissions by the judge shall be read out at the hearing before the High Council of Justice. A second failure on the part of the judge to attend a hearing shall be grounds for considering the case in his or her absence.", "A decision of the High Council of Justice to apply for dismissal of a judge under Article 126 § 5 (4)-(6) of the Constitution shall be taken by a majority of the constitutional composition of the High Council of Justice.”", "73. Chapter 4 of the Act, “Disciplinary proceedings against judges of the Supreme Court and the higher specialised courts”, provides, in so far as relevant, as follows:", "Section 37 – Types of penalties imposed by the High Council of Justice [wording of the section until 30 July 2010]", "“The High Council of Justice shall impose disciplinary liability ... on judges of the Supreme Court ... on the grounds provided for in Article 126 § 5 (5) of the Constitution and the Status of Judges Act.", "The High Council of Justice may impose the following disciplinary penalties:", "(1) reprimand;", "(2) downgrading of qualification class.", "The High Council of Justice may decide that a judge is not compatible with the post he or she occupies and lodge a submission for the judge’s dismissal with the body which appointed him or her.”", "Section 39 – Stages of disciplinary proceedings", "“Disciplinary proceedings shall comprise the following stages:", "(1) verification of information about a disciplinary offence;", "(2) institution of disciplinary proceedings;", "(3) consideration of the disciplinary case;", "(4) adoption of a decision. ...”", "Section 40 – Verification of information about a disciplinary offence", "“Verification of information about a disciplinary offence shall be carried out by ... one of the members of the High Council of Justice by way of receiving written explanations from the judge and other persons, requesting and examining material from case files, and receiving other information from State bodies, organisations, institutions, associations and citizens.", "Following the verification of information, a statement of facts with conclusions and proposals shall be prepared. The statement and other materials shall be communicated to the judge concerned. ...”", "Section 41 – Institution of disciplinary proceedings", "“If there are grounds to conduct disciplinary proceedings against ... a judge of the Supreme Court ... they shall be instituted by a decision of the High Council of Justice within ten days of the date of receipt of the information about the disciplinary offence or, if it is necessary to verify this information, within ten days of the date of the completion of the verification.”", "Section 42 – Consideration of a disciplinary case [wording of the section until 30 July 2010]", "“The High Council of Justice shall consider a disciplinary case at its next hearing after the receipt of a conclusion and other material resulting from the verification.", "The decision in a disciplinary case shall be taken by a secret ballot vote without the judge concerned being present ...", "The High Council of Justice shall hear evidence from a judge when determining his or her disciplinary liability. If the judge cannot participate in the hearing for a valid reason, he or she shall be entitled to make written submissions, which shall be included in the case file. The written submissions by the judge shall be read out at the hearing before the High Council of Justice. A second failure on the part of a judge to attend a hearing shall be grounds for considering the case in his absence.”", "Section 43 – Time-limits for imposing a disciplinary penalty", "“A judge shall receive a disciplinary penalty within six months of the date the offence became known, excluding any period of temporary disability or leave, but in any event not later than one year from the date of the offence.”", "Section 44 – Removal of disciplinary record", "“If, within a year of the date the disciplinary penalty was applied, the judge does not receive a further disciplinary penalty, that judge shall be treated as having no disciplinary record. ...”", "G. The Law of 18 March 2004 on the procedure for electing and dismissing judges by Parliament (“The Judges (Election and Dismissal) Act 2004”) (in force until 30 July 2010)", "74. The relevant provisions of the Act provided as follows:", "Section 19 – Procedure before the Parliamentary Committee concerning the consideration of the submission for the dismissal of a judge elected for an indefinite term", "“A submission [of the High Council of Justice] for the dismissal of a judge who has been elected for an indefinite term shall be considered by the Parliamentary Committee within a month of the date of receipt of the submission. ...", "The Parliamentary Committee shall carry out inquiries in respect of applications made by citizens and other notifications concerning activities of the judge.", "The Parliamentary Committee may request that additional inquiries be conducted by the Supreme Court, the High Council of Justice, the relevant higher specialised court, the State judicial administration, the Council of Judges of Ukraine or the relevant qualification commission of judges.", "The results of the additional inquiries shall be provided to the Parliamentary Committee by the relevant authorities in writing within the time-limits set by the Parliamentary Committee but in any event not later than fifteen days after the request for inquiries.", "The judge concerned shall be notified of the time and place of the hearing before the Parliamentary Committee.”", "Section 20 – Procedure before the Parliamentary Committee concerning the determination of the issue of the dismissal of a judge elected for an indefinite term", "“The hearing before the Parliamentary Committee on the dismissal of a judge elected for an indefinite term may be attended by members of Parliament and by representatives of the Supreme Court, the higher specialised courts, the High Council of Justice, the State judicial administration, other State authorities, local self ‑ governing bodies and public institutions.", "The judge concerned shall be present at the hearing, except in cases of dismissal under Article 126 § 5 (2), (3), (6), (7), (8) and (9) of the Constitution.", "A second failure on the part of the judge concerned to attend a hearing without a valid reason shall be grounds for considering the case in his or her absence after the Parliamentary Committee has ascertained that the judge has received notice of the time and place of the hearing. The Parliamentary Committee shall assess the validity of any reasons for failure to appear. ...", "A hearing before the Parliamentary Committee on the dismissal of a judge shall start with a report by the chairman.", "The members of the Parliamentary Committee and other members of Parliament may put questions to the judge as regards the material resulting from [any] inquiries and the facts noted in [any] applications made by citizens.", "The judge shall be entitled to study the material, the statements of facts and the conclusion of the Parliamentary Committee concerning his or her dismissal.”", "Section 21 – Tabling of a proposal for the dismissal of a judge ... before a plenary meeting of Parliament", "“The Parliamentary Committee shall table before a plenary meeting of Parliament a proposal recommending or not recommending the dismissal of a judge elected for an indefinite term. The representative of the Parliamentary Committee shall be given the floor.”", "Section 22 – Invitation to attend the plenary meeting concerning the dismissal of a judge elected for an indefinite term", "“... The judge concerned shall be present at the plenary meeting of Parliament in the event of his or her dismissal under Article 126 § 5 (1), (4) and (5) of the Constitution. The judge’s failure to appear shall not hinder consideration of the matter on the merits.”", "Section 23 – Procedure at the plenary meeting of Parliament concerning the determination of the issue of the dismissal of a judge elected for an indefinite term", "“During the plenary meeting of Parliament, the representative of the Parliamentary Committee shall report on each candidate for dismissal.", "If a judge does not agree with his or her dismissal, explanations shall be heard from him or her.", "Members of Parliament shall be entitled to put questions to the judge.", "If during the deliberations at the plenary meeting of Parliament it becomes necessary to carry out additional inquiries in respect of applications made by citizens or to request additional information, Parliament shall give relevant instructions to the Parliamentary Committee.”", "Section 24 – Parliament’s decision concerning the dismissal of a judge elected for an indefinite term", "“Parliament shall take a decision on the dismissal of a judge on the grounds defined in Article 126 § 5 of the Constitution.", "The decision shall be taken by open vote by a majority of the constitutional composition of Parliament.", "A decision on the dismissal of a judge shall be adopted in the form of a resolution.”", "H. The Law of 4 April 1995 on parliamentary committees (“the Parliamentary Committees Act 1995”)", "75. Section 1 of the Act provides that a parliamentary committee is a body of Parliament composed of members of Parliament with the task of drafting laws in particular fields, conducting preliminary reviews of matters which fall within the competence of Parliament, and carrying out oversight functions.", "I. The Law of 17 November 1992 on the status of Members of Parliament (“the Status of Members of Parliament Act 1992”)", "76. Section 24 of the Act provides that a member of Parliament must be present and personally participate in sittings of Parliament. He or she is obliged to vote in person on the matters that are considered by Parliament and its bodies.", "J. The Law of 10 February 2010 on the rules of Parliament (“the Rules of Parliament”)", "77. Rule 47 of the Rules of Parliament provides that when Parliament takes decisions, its members vote in person in the debating chamber by using an electronic voting system or, in the event of a secret vote, in a voting lobby near the debating chamber.", "IV. COMPARATIVE LAW RESEARCH", "81. A comparative law research report entitled “Judicial Independence in Transition” [5] was completed in 2012 by the Max Planck Institute for Comparative Public Law and International Law ( Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht ), Germany.", "82. The research report elaborates, among many other issues, on the disciplinary procedures against judges in various jurisdictions. It suggests that there is no uniform approach to the organisation of the system of judicial discipline in European countries. It may nevertheless be observed that in many European countries the grounds for the disciplinary liability of judges are defined in rather general terms (such as, for example, gross or repeated neglect of official duties resulting in the impression that a judge is manifestly unfit to hold office (Sweden)). Exceptionally, in Italy the law provides an all-inclusive list of thirty-seven different disciplinary violations concerning the behaviour of judges both in and outside their office. The sanctions for a disciplinary offence by a judge may include: warning, reprimand, transfer, downgrading, demotion, suspension of promotion, fine, salary reduction, temporary suspension from office, and dismissal with or without pension benefits. Dismissal of a judge as the most severe sanction is usually only ordered by a court; in some legal systems it can also be ordered by another institution such as a specialised disciplinary board of the Superior Council of Magistracy, but, as a rule, it is then subject to an appeal to court. With the exception of Switzerland, Parliament is not involved in the procedure; the system in Switzerland is, however, fundamentally different owing to the limited period of time for which judges are elected.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "83. The applicant made the following complaints under Article 6 § 1 of the Convention: (i) his case had not been considered by an “independent and impartial tribunal”; (ii) the proceedings before the HCJ had been unfair, in that they had not been carried out pursuant to the procedure envisaged by Chapter 4 of the HCJ Act 1998, offering a set of important procedural guarantees, including limitation periods for disciplinary penalties; (iii) Parliament had adopted the decision on his dismissal at a plenary meeting by abusing the electronic voting system; (iv) his case had not been heard by a “tribunal established by law”; (v) the decisions in his case had been taken without a proper assessment of the evidence and important arguments raised by the defence had not been properly addressed; (vi) the absence of sufficient competence on the part of the HAC to review the acts adopted by the HCJ had run counter to his right to a court; (vii) the principle of equality of arms had not been respected.", "84. Article 6 § 1 of the Convention provides, in so far as relevant, as follows:", "“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”", "A. Admissibility", "85. The parties did not contest the admissibility of the above complaints.", "86. Although the Government admitted that Article 6 § 1 of the Convention was applicable to the present case, the Court finds it appropriate to address this issue in detail.", "1. Whether Article 6 § 1 applies under its civil head", "87. The Court notes that labour disputes between civil servants and the State may fall outside the civil limb of Article 6 provided that two cumulative conditions are fulfilled. First, the State in its national law must have expressly excluded access to the courts for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II).", "88. In the context of the first condition, the Court is not prevented from qualifying a particular domestic body, outside the domestic judiciary, as a “court” for the purpose of the Vilho Eskelinen test. An administrative or parliamentary body may be viewed as a “court” in the substantive sense of the term, thereby rendering Article 6 applicable to civil servants’ disputes (see Argyrou and Others v. Greece, no. 10468/04, § 24, 15 January 2009, and Savino and Others v. Italy, nos. 17214/05, 20329/05 and 42113/04, §§ 72 ‑ 75, 28 April 2009). The conclusion as to the applicability of Article 6 is, however, without prejudice to the question of how procedural guarantees were complied with in such proceedings (ibid., § 72).", "89. As to the present application, the applicant’s case was considered by the HCJ, which determined all the questions of fact and law after holding a hearing and assessing the evidence. The examination of the case by the HCJ ended with two submissions for the applicant’s dismissal being sent to Parliament. Upon being received by Parliament, the submissions were considered by the Parliamentary Committee on the Judiciary which, at the relevant time, was given a certain latitude in assessing the conclusions of the HCJ, as it was empowered to hold its own deliberations and conduct additional inquiries, if deemed necessary, which could end with a recommendation to have, or not to have, the judge dismissed (see sections 19-21 of the Judges (Election and Dismissal) Act 2004). A plenary meeting of Parliament subsequently adopted a decision on the applicant’s dismissal based on the HCJ’s submissions and the recommendation of the Parliamentary Committee (see section 23 of the same Act). Lastly, the decisions of the HCJ and Parliament were reviewed by the HAC.", "90. It therefore appears that in determining the applicant’s case and taking a binding decision, the HCJ, the Parliamentary Committee and the plenary meeting of Parliament were, in combination, performing a judicial function (see Savino and Others, cited above, § 74). The binding decision on the applicant’s dismissal was further reviewed by the HAC, which was an ordinary court within the domestic judiciary.", "91. In view of the above, it cannot be concluded that national law “expressly excluded access to court” for the applicant’s claim. The first condition of the Vilho Eskelinen test has not therefore been met and Article 6 applies under its civil head (compare Olujić v. Croatia, no. 22330/05, §§ 31 ‑ 45, 5 February 2009).", "2. Whether Article 6 § 1 applies under its criminal head", "92. The two aspects, civil and criminal, of Article 6 are not necessarily mutually exclusive (see Albert and Le Compte v. Belgium, 10 February 1983, § 30, Series A no. 58). The question is therefore whether Article 6 of the Convention also applies under its criminal head.", "93. In the light of the Engel criteria (see Engel and Others v. the Netherlands, 8 June 1976, §§ 82-83, Series A no. 22), certain considerations arise with respect to the severity of the sanction imposed on the applicant. While lustration proceedings in Poland leading likewise to the dismissal of the persons concerned may be analogous to a certain extent, the Court has held in that scenario that the relevant provisions of Polish legislation were not “directed at a group of individuals possessing a special status – in the manner, for example, of a disciplinary law”, but covered a vast group of citizens; the proceedings resulted in an employment ban for a large number of public posts without an exhaustive list being provided by domestic law (see Matyjek v. Poland (dec.), no. 38184/03, §§ 53-54, ECHR 2006 ‑ VII). That case is therefore different, as in the present case the applicant, possessing a special status, was punished for failure to comply with his professional duties – that is, for an offence falling squarely under the disciplinary law. The sanction imposed on the applicant was a classic disciplinary measure for professional misconduct and, in terms of domestic law, it was contrasted with criminal-law sanctions for the adoption of a knowingly wrongful decision by a judge (see Article 375 of the Criminal Code above). It is also relevant to note here that the applicant’s dismissal from the post of judge did not formally prevent him from practising law in another capacity within the legal profession.", "94. Moreover, the Court has found that discharge from the armed forces cannot be regarded as a criminal penalty for the purposes of Article 6 § 1 of the Convention (see Tepeli and Others v. Turkey (dec.), no. 31876/96, 11 September 2001, and Suküt v. Turkey (dec.), no. 59773/00, 11 September 2007). The Court has also explicitly held that proceedings concerning the dismissal of a bailiff for numerous misdemeanours “did not involve the determination of a criminal charge” (see Bayer v. Germany, no. 8453/04, § 37, 16 July 2009).", "95. In view of the above, the Court considers that the facts of the present case do not give grounds for a conclusion that the applicant’s dismissal case related to the determination of a criminal charge within the meaning of Article 6 of the Convention. Accordingly, this Article is not applicable under its criminal head.", "3. Otherwise as to admissibility", "96. The Court further notes that the above complaints under Article 6 § 1 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. As to the principles of an “independent and impartial tribunal”", "(a) The applicant’s submissions", "97. The applicant complained that his case had not been considered by an “independent and impartial tribunal”. In particular, these requirements had not been met by the HCJ on account of the manner of its composition, the subordination of its members to other State bodies and the personal bias of some of its members in the applicant’s case. The applicant specifically claimed that S.K., V.K. and R.K. could not have been impartial when deciding his case. The requirements of independence and impartiality had not been met at the subsequent stages of the proceedings, including before the HAC, which had failed to provide either the necessary guarantees or an adequate rehearing of the issues.", "98. Moreover, according to the applicant, the review of his case by the HAC could not be regarded as sufficient to offset the procedural defects existing at the earlier stages. In particular, the HAC had not been able to formally quash the decisions concerning his dismissal and, in the absence of any regulations, it had remained unclear what the procedural consequences of declaring those decisions unlawful were. Furthermore, the manner in which the HAC had reviewed the applicant’s case suggested that there had been no adequate response to his pertinent and important arguments and submissions as regards the lack of a factual basis for his dismissal, the personal bias of members of the HCJ, and irregularities in the voting procedure in Parliament.", "(b) The Government’s submissions", "99. The Government argued that domestic law had offered sufficient guarantees for the independence and impartiality of the HCJ. At the same time, there had been no indication of personal bias on the part of any of the members of the HCJ determining the applicant’s case. In particular, the statements made by S.K. to the media referred to by the applicant had actually been made more than six months prior to the events examined in the present case. Therefore, there had been no causal connection between these statements and the applicant’s dismissal. There had been no sustainable arguments in support of the statement that R.K and V.K. had been biased. In any event, the decision of the HCJ had been taken by a majority and the alleged bias of certain members of the HCJ could not have seriously affected that body’s impartiality.", "100. The Government further admitted that there had been a certain amount of overlap in the composition of the HCJ and the Parliamentary Committee considering the applicant’s case after it had been referred to Parliament. Nevertheless, the Committee had been a collegial body which had taken a decision by a majority vote and that decision had not been binding on the plenary meeting of Parliament.", "101. The Government contended that there had been no reason to doubt the independence and impartiality of the HAC.", "102. Further, according to the Government, the review provided by the HAC had been sufficient to remedy any alleged defects in procedural fairness which could have arisen at the previous stages of the domestic proceedings. The Government specified in this regard that the HAC’s competence to declare the decisions of the HCJ and Parliament on dismissal of a judge unlawful had been sufficient, as this implied that a judge would be treated as having not been dismissed. In support of their contentions, the Government submitted examples of domestic judicial practice whereby judges had successfully challenged decisions on their dismissal and then instituted court proceedings for reinstatement. In this context, they maintained that the manner in which the HAC had considered the applicant’s case had been appropriate and all the relevant and pertinent arguments advanced by the applicant had been adequately dealt with. In particular, the HAC had provided an appropriate response to the applicant’s allegation of a violation of the voting procedure in Parliament. Similarly, the HAC had properly addressed the applicant’s contention as to the breach of the requirement of independence and impartiality at the earlier stages of the proceedings.", "(c) The Court’s assessment", "103. In order to establish whether a tribunal can be considered “independent” within the meaning of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against external pressure and the question whether the body presents an appearance of independence (see Findlay v. the United Kingdom, 25 February 1997, § 73, Reports of Judgments and Decisions 1997-I, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005-II). The Court emphasises that the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in its case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV). At the same time, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 193, ECHR 2003 ‑ VI).", "104. As a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Fey v. Austria, 24 February 1993, §§ 28 and 30, Series A no. 255-A, and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).", "105. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also go to the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005 ‑ XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996 ‑ III).", "106. In this respect, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).", "107. Finally, the concepts of independence and objective impartiality are closely linked and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France, no. 65411/01, § 62, ECHR 2006 ‑ XIII). Having regard to the facts of the present case, the Court finds it appropriate to examine the issues of independence and impartiality together.", "108. The Court has noted (see paragraphs 89-90 above) that the HCJ and Parliament performed the function of determining the case concerning the applicant and the adoption of a binding decision. The HAC further carried out a review of the findings and the decisions made by those bodies. Therefore, the Court must first examine whether the principles of an independent and impartial tribunal were complied with at the stage of the determination of the applicant’s case and the production of a binding decision.", "(i) Independence and impartiality of the bodies determining the applicant’s case", "(α) The HCJ", "109. The Court has held that where at least half of the membership of a tribunal is composed of judges, including the chairman with a casting vote, this will be a strong indicator of impartiality (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 58, Series A no. 43). It is appropriate to note that with respect to disciplinary proceedings against judges, the need for substantial representation of judges on the relevant disciplinary body has been recognised in the European Charter on the statute for judges (see paragraph 78 above).", "110. The Court notes that, in accordance with Article 131 of the Constitution and the HCJ Act 1998, the HCJ consists of twenty members, who are appointed by different bodies. However, what should be emphasised here is that three members are directly appointed by the President of Ukraine, another three members are appointed by the Parliament of Ukraine, and another two members are appointed by the All-Ukrainian Conference of Prosecutors. The Minister of Justice and the Prosecutor General are ex officio members of the HCJ. It follows that the effect of the principles governing the composition of the HCJ, as laid down in the Constitution and developed in the HCJ Act 1998, was that non-judicial staff appointed directly by the executive and the legislative authorities comprised the vast majority of the HCJ’s members.", "111. As a result, the applicant’s case was determined by sixteen members of the HCJ who attended the hearing, only three of whom were judges. Thus, judges constituted a tiny minority of the members of the HCJ hearing the applicant’s case (see paragraph 24 above).", "112. It was only in the amendments of 7 July 2010 that the HCJ Act 1998 was supplemented with requirements to the effect that ten members of the HCJ should be appointed from the judicial corps. These amendments, however, did not affect the applicant’s case. In any event, they are insufficient, as the bodies appointing the members of the HCJ remain the same, with only three judges being elected by their peers. Given the importance of reducing the influence of the political organs of the government on the composition of the HCJ and the necessity to ensure the requisite level of judicial independence, the manner in which judges are appointed to the disciplinary body is also relevant in terms of judicial self ‑ governance. As noted by the Venice Commission, the amended procedures have not resolved the issue, since the appointment itself is still carried out by the same authorities and not by the judicial corps (see paragraphs 28-29 of the Venice Commission’s Opinion, cited in paragraph 79 above).", "113. The Court further notes that in accordance with section 19 of the HCJ Act 1998, only four members of the HCJ work there on a full-time basis. The other members continue to work and receive a salary outside the HCJ, which inevitably involves their material, hierarchical and administrative dependence on their primary employers and endangers both their independence and impartiality. In particular, in the case of the Minister of Justice and the Prosecutor General, who are ex officio members of the HCJ, the loss of their primary job entails resignation from the HCJ.", "114. The Court refers to the opinion of the Venice Commission that the inclusion of the Prosecutor General as an ex officio member of the HCJ raises further concerns, as it may have a deterrent effect on judges and be perceived as a potential threat. In particular, the Prosecutor General is placed at the top of the hierarchy of the prosecutorial system and supervises all prosecutors. In view of their functional role, prosecutors participate in many cases which judges have to decide. The presence of the Prosecutor General on a body concerned with the appointment, disciplining and removal of judges creates a risk that judges will not act impartially in such cases or that the Prosecutor General will not act impartially towards judges of whose decisions he disapproves (see paragraph 30 of the Venice Commission’s Opinion, cited in paragraph 79 above). The same is true with respect to the other members of the HCJ appointed by the All-Ukrainian Conference of Prosecutors on a quota basis. The concerns expressed by the Commissioner for Human Rights of the Council of Europe are illustrative in this respect (see paragraph 42 of the report cited in paragraph 80 above).", "115. The Court further observes that the members of the HCJ who carried out the preliminary inquiries in the applicant’s case and submitted requests for his dismissal (R.K. and V.K.) subsequently took part in the decisions to remove the applicant from office. Moreover, one of those members (V.K.) was appointed President of the HCJ and presided over the hearing of the applicant’s case. The role of those members in bringing disciplinary charges against the applicant, based on the results of their own preliminary inquiries, throws objective doubt on their impartiality when deciding on the merits of the applicant’s case (compare Werner v. Poland, no. 26760/95, §§ 43-44, 15 November 2001).", "116. The applicant’s contentions of personal bias on the part of certain members of the HCJ should also be considered as regards the activities of the Chairman (S.K.) of the Parliamentary Committee on the judiciary, who was also a member of the HCJ. Firstly, his role in refusing [6] to allow the applicant to take the oath of office as a member of the HCJ should not be overlooked. Secondly, his opinion published in the official parliamentary gazette on 14 June 2007 suggested that he strongly disagreed with the interlocutory court decision in the case concerning the unlawfulness of the parliamentary resolution on a temporary procedure for appointing presidents and deputy presidents of the local courts. Even though S.K. did not directly criticise him, it is evident that he disapproved of the actions of the applicant, who had been a claimant in that case. The Court is not convinced by the Government’s claim that this public statement was made much earlier, before the disciplinary proceedings commenced. Given that the time between the two events, as alleged by the Government, was about six months, this period cannot be considered sufficiently long to remove any causal connection in this respect.", "117. Accordingly, the facts of the present application disclose a number of serious issues pointing both to structural deficiencies in the proceedings before the HCJ and to the appearance of personal bias on the part of certain members of the HCJ determining the applicant’s case. The Court therefore concludes that the proceedings before the HCJ were not compatible with the principles of independence and impartiality required by Article 6 § 1 of the Convention.", "(β) “Independence and impartiality” at the parliamentary stage", "118. The subsequent determination of the case by Parliament, the legislative body, did not remove the structural defects of a lack of “independence and impartiality” but rather only served to contribute to the politicisation of the procedure and to aggravate the inconsistency of the procedure with the principle of the separation of powers.", "Parliamentary Committee", "119. As regards the proceedings before the Parliamentary Committee, the chairman of the committee (S.K.) and one of its members were also members of the HCJ and took part in deciding the applicant’s case at both levels. Accordingly, they might not have acted impartially when examining the submissions by the HCJ (see, mutatis mutandis, Oberschlick v. Austria (no. 1), 23 May 1991, §§ 50-52, Series A no. 204). Besides that, the Court’s considerations concerning the lack of personal impartiality, as set out in paragraph 116 above, are equally pertinent to this stage of the procedure. Moreover, proper account should be taken of the fact that S.K., together with two members of the Parliamentary Committee, applied to the HCJ seeking the initiation of preliminary inquiries into possible misconduct by the applicant.", "120. At the same time, the HCJ’s members could not withdraw as no withdrawal procedure was envisaged by the Judges (Election and Dismissal) Act 2004. This points to the lack of appropriate guarantees for the proceedings’ compliance with the test of objective impartiality (see, mutatis mutandis, Micallef v. Malta [GC], no. 17056/06, §§ 99-100, ECHR 2009).", "Plenary meeting of Parliament", "121. As regards the plenary meeting of Parliament, the case was presented to the MPs by S.K. and V.K. (see paragraph 27 above). The procedure, however, essentially entailed a mere exchange of general opinions based on the conclusions of the HCJ and the Parliamentary Committee. At this stage, the determination of the case was limited to the adoption of a binding decision based on the findings previously reached by the HCJ and the Parliamentary Committee.", "122. On the whole, the facts of the present case suggest that the procedure at the plenary meeting was not an appropriate forum for examining issues of fact and law, assessing evidence and making a legal characterisation of the facts. The role of the politicians sitting in Parliament, who were not required to have any legal or judicial experience in determining complex issues of fact and law in an individual disciplinary case, has not been sufficiently clarified by the Government and has not been justified as being compatible with the requirements of independence and impartiality of a tribunal under Article 6 of the Convention.", "(ii) Whether the issues of “independence and impartiality” were remedied by the HAC", "123. According to the Court’s case-law, even where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1” (see Albert and Le Compte, cited above, § 29, and Tsfayo v. the United Kingdom, no. 60860/00, § 42, 14 November 2006). In order to determine whether the Article 6 compliant second-tier tribunal had “full jurisdiction”, or provided “sufficiency of review” to remedy a lack of independence at first instance, it is necessary to have regard to such factors as the subject matter of the decision appealed against, the manner in which that decision was arrived at and the content of the dispute, including the desired and actual grounds of appeal (see Bryan v. the United Kingdom, 22 November 1995, §§ 44-47, Series A no. 335 ‑ A, and Tsfayo, cited above, § 43).", "(α) As to “sufficiency of review”", "124. The Court is not persuaded that the HAC offered a sufficient review in the applicant’s case, for the following reasons.", "125. Firstly, the question arises whether the HAC could effectively review the decisions of the HCJ and Parliament, given that the HAC had been vested with powers to declare these decisions unlawful without being able to quash them and take any further adequate steps if deemed necessary. Even though no legal consequences generally arise from a decision being declared unlawful, the Court considers that the HAC’s inability to formally quash the impugned decisions and the absence of rules as to the further progress of the disciplinary proceedings produces a substantial amount of uncertainty about what the real legal consequences of such judicial declarations are.", "126. The judicial practice developed in this area could be indicative in this respect. The Government submitted copies of domestic court decisions in two cases. However, these examples show that after the HAC had declared the judges’ dismissal unlawful, the claimants had had to institute separate proceedings for reinstatement. This material does not shed light on how disciplinary proceedings should be conducted (in particular, the steps which should be taken by the authorities involved after the impugned decisions have been declared unlawful and the time-limits for those steps to be taken) but squarely suggests that there is no automatic reinstatement in the post of judge exclusively on the basis of the HAC’s declaratory decision. Therefore, the material provided indicates that the legal consequences arising from the HAC’s review of such matters are limited and reinforces the Court’s misgivings about the HAC’s ability to handle the matter effectively and provide a sufficient review of the case.", "127. Second, looking into the manner in which the HAC arrived at its decision in the applicant’s case and the scope of the dispute, the Court notes that important arguments advanced by the applicant were not properly addressed by the HAC. In particular, the Court does not consider that the applicant’s allegation of a lack of impartiality on the part of the members of the HCJ and of the Parliamentary Committee was examined with the requisite diligence. The Government’s assertions in this respect are not convincing.", "128. Furthermore, the HAC made no genuine attempt to examine the applicant’s contention that the parliamentary decision on his dismissal had been incompatible with the Status of Members of Parliament Act 1992 and the Rules of Parliament, despite the fact that it had competence to do so (see Article 171-1 §§ 1 and 5 of the Code of Administrative Justice, cited in paragraph 62 above) and the applicant clearly raised the matter in his claim and submitted relevant evidence (see paragraphs 29 and 33 above). No assessment of the applicant’s evidence was made by the HAC. Meanwhile, the applicant’s allegation of the unlawfulness of the voting procedure in Parliament was further reinterpreted as a claim about the unconstitutionality of the relevant parliamentary resolution. By proceeding in this manner, the HAC avoided dealing with the issue in favour of the Constitutional Court, to which the applicant had no direct access (see Bogatova v. Ukraine, no. 5231/04, § 13, 7 October 2010, with further references).", "129. Therefore, the Court considers that the review of the applicant’s case by the HAC was not sufficient and thus could not neutralise the defects regarding procedural fairness at the previous stages of the domestic proceedings.", "(β) As to the requirements of independence and impartiality at the stage of the HAC’s review", "130. The Court observes that the judicial review was performed by judges of the HAC who were also under the disciplinary jurisdiction of the HCJ. This means that these judges could also be subjected to disciplinary proceedings before the HCJ. Having regard to the extensive powers of the HCJ with respect to the careers of judges (appointment, disciplining and dismissal) and the lack of safeguards for the HCJ’s independence and impartiality (as examined above), the Court is not persuaded that the judges of the HAC considering the applicant’s case, to which the HCJ was a party, were able to demonstrate the “independence and impartiality” required by Article 6 of the Convention.", "(iii) Conclusion", "131. Accordingly, the Court holds that the domestic authorities failed to ensure an independent and impartial determination of the applicant’s case and that the subsequent review of his case did not put those defects right. There has therefore been a violation of Article 6 § 1 of the Convention in this respect.", "2. Compliance with the principle of legal certainty as regards the absence of a limitation period for the proceedings against the applicant", "(a) The parties’ submissions", "132. The applicant complained that the proceedings before the HCJ had been unfair, in that they had not been carried out pursuant to the procedure envisaged by Chapter 4 of the HCJ Act 1998, which offered a set of important procedural guarantees, including limitation periods for disciplinary penalties. At the same time, the reasons given by the HAC for applying a different procedure had not been sufficient.", "133. The applicant maintained that the application of a limitation period in his case had been important to ensure the principle of legal certainty. Having failed to apply any limitation period to his case, the State authorities had breached his right to a fair trial.", "134. The Government contested this complaint and submitted that the legal status of a judge entailed both the guarantees of his independence in administering justice and the possibility of holding him liable for a failure to perform his duties. As a “breach of oath” was a serious offence, time-limits for holding the applicant liable could not be applied.", "(b) The Court’s assessment", "135. The Court notes that the applicant’s disagreement with the chosen procedure is a question of interpretation of domestic law, which is primarily a matter for the national authorities. However, the Court is required to verify whether the way in which domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention, as interpreted in the light of the Court’s case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190-91, ECHR 2006-V).", "136. The Court considers that the HAC gave sufficient reasons why the process was conducted under a different procedure from that cited by the applicant (see paragraph 37 above). The application of the different procedure cannot be viewed as unforeseeable, arbitrary or manifestly unreasonable. The question remains, however, whether the alleged absence of the particular safeguard relied upon by him, namely the absence of a limitation period for imposing a disciplinary penalty for a “breach of oath” by a judge, affected the fairness of the proceedings.", "137. The Court has held that limitation periods serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent any injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 51, Reports 1996 ‑ IV). Limitation periods are a common feature of the domestic legal systems of the Contracting States as regards criminal, disciplinary and other offences.", "138. As to the applicant’s case, the facts examined by the HCJ in 2010 dated back to 2003 and 2006 (see paragraphs 17-18 above). The applicant was therefore placed in a difficult position, as he had to mount his defence with respect to events, some of which had occurred in the distant past.", "139. It appears from the HAC’s decision in the applicant’s case and the Government’s submissions that domestic law does not provide for any time bars on proceedings for dismissal of a judge for “breach of oath”. While the Court does not find it appropriate to indicate how long the limitation period should be, it considers that such an open-ended approach to disciplinary cases involving the judiciary poses a serious threat to the principle of legal certainty.", "140. In these circumstances, the Court finds that there has been a violation of Article 6 § 1 of the Convention in this respect.", "3. Compliance with the principle of legal certainty during the plenary meeting of Parliament", "(a) The parties’ submissions", "141. The applicant complained that Parliament had adopted the decision on his dismissal in manifest breach of the law by abusing the electronic voting system. He asserted that during the plenary vote on his dismissal certain MPs had unlawfully cast votes belonging to other MPs who had not been there. In support of this complaint, the applicant referred to the video of the proceedings at the plenary meeting of Parliament and to the statements of four MPs certified by a notary.", "142. The Government maintained that the parliamentary decision on the applicant’s dismissal had been lawful and the evidence adduced by the applicant to the contrary could not be considered reliable as its veracity had not been assessed by the domestic authorities.", "(b) The Court’s assessment", "143. The Court has held that procedural rules are designed to ensure the proper administration of justice and compliance with the principle of legal certainty, and that litigants must be entitled to expect those rules to be applied. The principle of legal certainty applies not only in respect of litigants but also in respect of the national courts (see Diya 97 v. Ukraine, no. 19164/04, § 47, 21 October 2010, with further references). The principle is equally applicable to the procedures used for dismissing the applicant, including the decision-making process at the plenary meeting of Parliament.", "144. The Court notes that the facts underpinning this complaint are confirmed by the statements of the applicant, who observed the plenary vote, by the certified statements of four MPs and by the video of the proceedings. The Government did not put forward any plausible argument putting in doubt the veracity of these pieces of evidence. For its part, the Court finds no reason to consider this evidentiary material unreliable.", "145. Having examined the above-mentioned material, the Court finds that the decision on the applicant’s dismissal was voted on in the absence of the majority of the MPs. The MPs present deliberately and unlawfully cast multiple votes belonging to their absent peers. The decision was therefore taken in breach of Article 84 of the Constitution, section 24 of the Status of Members of Parliament Act 1992 and Rule 47 of the Rules of Parliament, requiring that members of Parliament should personally participate in meetings and votes. In these circumstances, the Court considers that the vote on the applicant’s dismissal undermined the principle of legal certainty, in breach of Article 6 § 1 of the Convention.", "146. As noted above, this defect in procedural fairness was not remedied at the subsequent stage of the proceedings, as the HAC failed to deal with this issue in a proper manner.", "147. There has therefore been a violation of Article 6 § 1 of the Convention in this respect.", "4. Compliance with the principle of a “tribunal established by law”", "(a) The parties’ submissions", "148. The applicant complained that his case had not been heard by a “tribunal established by law”. With regard to the chamber of the HAC which had heard his case, the applicant contended that by the time the president of the HAC had set up that chamber and had made proposals for its individual composition, his term of office had expired and he had therefore been occupying his administrative post without any legal basis.", "149. The Government submitted that after the expiry of his term of office, the president of the HAC had to be dismissed. However, in the absence of any procedure for the dismissal of a judge from an administrative post, any actions concerning his dismissal would not have been legal. They further argued that the authority of the president of the HAC to remain in that post had been supported by the decision of the Conference of Judges of the Administrative Courts.", "(b) The Court’s assessment", "150. According to the Court’s case-law, the object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society [does] not depend on the discretion of the Executive, but that it [is] regulated by law emanating from Parliament”. Nor, in countries where the law is codified, can organisation of the judicial system be left to the discretion of the judicial authorities, although this does not mean that the courts will not have some latitude to interpret the relevant national legislation (see Fruni v. Slovakia, no. 8014/07, § 134, 21 June 2011, with further references).", "151. The phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000, and Posokhov v. Russia, no. 63486/00, § 39, ECHR 2003-IV). The practice of tacit extension of judges’ terms of office for an indefinite period after the expiry of their statutory term of office until they were reappointed has been found to violate the principle of a “tribunal established by law” (see Gurov v. Moldova, no. 36455/02, §§ 37-39, 11 July 2006).", "152. As to the instant case, it should be noted that, by virtue of Article 171-1 of the Code of Administrative Justice, the applicant’s case could be heard exclusively by a special chamber of the HAC. Under section 41 of the Judicial System Act 2002, this special chamber had to be set up by a decision of the president of the HAC; the personal composition of that chamber was defined by the president, with further approval by the Presidium of that court. However, by the time this was undertaken in the present case, the president’s five-year term of office had expired.", "153. In that period of time, the procedure for appointing presidents of the courts was not regulated by domestic law: the relevant provisions of section 20 of the Judicial System Act 2002 had been declared unconstitutional and new provisions had not yet been introduced by Parliament (see paragraphs 41 and 49 above). Different domestic authorities had expressed their opinions as to that legal situation. For example, the Council of Judges of Ukraine, a higher body of judicial self-governance, considered that the matter had to be resolved on the basis of section 41 § 5 of the Judicial System Act 2002 and that the First Deputy President of the HAC, Judge S., was required to perform the duties of president of that court (see paragraph 51 above), while the General Prosecutor’s Office took a different view on the matter (see paragraph 52 above).", "154. Accordingly, such an important issue as the appointment of the presidents of the courts was relegated to the level of domestic practice, which turned out to be a matter of serious controversy among the authorities. It appears that Judge P. continued to perform the duties of the president of the HAC beyond the statutory time-limit, relying essentially on the fact that procedures for (re)appointment had not been provided for by the laws of Ukraine, while the legislative basis for his authority to act as president of the HAC was not sufficiently established.", "155. Meanwhile, during that period Judge P., acting as president of the HAC, constituted the chamber which considered the applicant’s case and made proposals for the individual composition of that chamber.", "156. In these circumstances, the Court cannot conclude that the chamber dealing with the applicant’s case was set up and composed in a legitimate way satisfying the requirements of a “tribunal established by law”. There has therefore been a violation of Article 6 § 1 of the Convention in this respect.", "5. Other violations of Article 6 § 1 of the Convention", "157. The applicant further complained that the decisions in his case had been taken without a proper assessment of the evidence and important arguments raised by the defence had not been properly addressed; the absence of sufficient competence on the part of the HAC to review the acts adopted by the HCJ had run counter to his “right to a court”; and the principle of equality of arms had not been respected.", "158. The Government contested those allegations.", "159. Having regard to the above considerations and conclusions under Article 6 § 1 of the Convention, the Court finds no separate issue in respect of the present complaints. It is therefore unnecessary to examine these complaints.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "160. The applicant complained that his dismissal from the post of judge had amounted to an interference with his private and professional life which was incompatible with Article 8 of the Convention.", "161. Article 8 of the Convention provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "162. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "163. The applicant contended that there had been interference with his private life as a result of his dismissal from the post of judge of the Supreme Court. That interference had not been lawful, as the grounds for liability for “breach of oath” had been drafted too vaguely; domestic law had not provided for any limitation periods that were applicable to the dismissal proceedings and had thus not provided adequate safeguards against abuse and arbitrariness; moreover, it had not set out an appropriate scale of sanctions for disciplinary liability ensuring its application on a proportionate basis. For those reasons, it had not been compatible with the requirements of the “quality of law”. The applicant further asserted that the interference in question had not been necessary in the circumstances of the case.", "164. The Government admitted that the removal of the applicant from office had constituted an interference with his right to respect for his private life within the meaning of Article 8 of the Convention. However, the measure had been justified under the second paragraph of Article 8 of the Convention. In particular, the dismissal had been carried out on the basis of domestic law which had been sufficiently foreseeable and accessible. In addition, the measure had been necessary in the circumstances of the case.", "2. The Court’s assessment", "(a) Whether there was an interference", "165. The parties agreed that there had been an interference with the applicant’s right to respect for his private life. The Court finds no reason to hold otherwise. It notes that private life “encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature” (see C. v. Belgium, 7 August 1996, § 25, Reports 1996 ‑ III). Article 8 of the Convention “protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world” (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). The notion of “private life” does not exclude in principle activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251 ‑ B). Therefore, restrictions imposed on access to a profession have been found to affect “private life” (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 47, ECHR 2004 ‑ VIII, and Bigaeva v. Greece, no. 26713/05, §§ 22-25, 28 May 2009). Likewise, dismissal from office has been found to interfere with the right to respect for private life (see Özpınar v. Turkey, no. 20999/04, §§ 43-48, 19 October 2010). Finally, Article 8 deals with the issues of protection of honour and reputation as part of the right to respect for private life (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007, and A. v. Norway, no. 28070/06, §§ 63-64, 9 April 2009).", "166. The dismissal of the applicant from the post of judge affected a wide range of his relationships with other persons, including relationships of a professional nature. Likewise, it had an impact on his “inner circle” as the loss of his job must have had tangible consequences for the material well-being of the applicant and his family. Moreover, the reason for the applicant’s dismissal, namely breach of the judicial oath, suggests that his professional reputation was affected.", "167. It follows that the applicant’s dismissal constituted an interference with his right to respect for private life within the meaning of Article 8 of the Convention.", "(b) Whether the interference was justified", "168. The Court next has to examine whether the interference satisfied the conditions of paragraph 2 of Article 8.", "(i) General principles concerning the lawfulness of interference", "169. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kopp v. Switzerland, 25 March 1998, § 55, Reports 1998 ‑ II).", "170. The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see C.G. and Others v. Bulgaria, no. 1365/07, § 39, 24 April 2008). The law must, moreover, afford a degree of legal protection against arbitrary interference by the authorities. The existence of specific procedural safeguards is material in this context. What is required by way of safeguard will depend, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, ECHR 2001-IX).", "(ii) Compliance with domestic law", "171. The Court has found (see paragraph 145 above) that the parliamentary vote on the decision to remove the applicant from office was not lawful in terms of domestic law. This conclusion in itself would be sufficient for the Court to establish that the interference with the applicant’s right to respect for his private life was not in accordance with the law within the meaning of Article 8 of the Convention.", "172. Nevertheless, the Court finds it appropriate to examine the complaint further and establish whether the requirements of the “quality of law” were met.", "(iii) Compliance with the requirements of the “quality of law”", "173. In their submissions under this head, the parties disputed the issue of the foreseeability of the applicable law. In this regard, the Court observes that until 15 May 2010 the substantive law did not contain any description of the offence of “breach of oath”. The basis for construing the scope of that offence was inferred from the text of the judicial oath, provided for in section 10 of the Status of Judges Act 1992 [7] and reading as follows: “I solemnly declare that I will honestly and rigorously perform the duties of judge, abide only by the law when administering justice, and be objective and fair”.", "174. The Court notes that the text of the judicial oath offered wide discretion in interpreting the offence of “breach of oath”. The new legislation now specifically deals with the external elements of that offence (see section 32 of the HCJ Act 1998, as amended, paragraph 72 above). While the new legislation did not apply to the applicant’s case, it is relevant to note that the specification of “breach of oath” in that section still provides the disciplinary authority with wide discretion on this issue (see also the relevant extract from the opinion of the Venice Commission cited in paragraph 79 above).", "175. However, the Court recognises that in certain areas it may be difficult to frame laws with high precision and that a certain degree of flexibility may even be desirable to enable the national courts to develop the law in the light of their assessment of what measures are necessary in the particular circumstances of each case (see Goodwin v. the United Kingdom, 27 March 1996, § 33, Reports 1996 ‑ II). It is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 64, ECHR 2004 ‑ I).", "176. These qualifications, imposing limits on the requirement of precision of statutes, are particularly relevant to the area of disciplinary law. Indeed, as far as military discipline is concerned, the Court has held that it would scarcely be possible to draw up rules describing different types of conduct in detail. It may therefore be necessary for the authorities to formulate such rules more broadly (see Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994, § 31, Series A no. 302).", "177. The experience of other States suggests that the grounds for the disciplinary liability of judges are usually couched in general terms, while the examples of detailed statutory regulation of that matter do not necessarily prove the adequacy of the legislative technique employed and the foreseeability of that area of law (see paragraph 82 above).", "178. Therefore, in the context of disciplinary law, there should be a reasonable approach in assessing statutory precision, as it is a matter of objective necessity that the actus reus of such offences should be worded in general language. Otherwise, the statute may not deal with the issue comprehensively and will require constant review and updating according to the numerous new circumstances arising in practice. It follows that a description of an offence in a statute, based on a list of specific behaviours but aimed at general and uncountable application, does not provide a guarantee for addressing properly the matter of the foreseeability of the law. The other factors affecting the quality of legal regulation and the adequacy of the legal protection against arbitrariness should be identified and examined.", "179. In this connection, the Court notes that it has found the existence of specific and consistent interpretational practice concerning the legal provision in issue to constitute a factor leading to the conclusion that the provision was foreseeable as to its effects (see Goodwin, cited above, § 33). While this conclusion was made in the context of a common-law system, the interpretational role of adjudicative bodies in ensuring the foreseeability of legal provisions cannot be underestimated in civil-law systems. It is precisely for those bodies to construe the exact meaning of general provisions of law in a consistent manner and dissipate any interpretational doubts (see, mutatis mutandis, Gorzelik and Others, cited above, § 65).", "180. As to the present case, there is no indication that at the time of the determination of the applicant’s case there were any guidelines or practice establishing a consistent and restrictive interpretation of the notion of “breach of oath”.", "181. The Court further considers that the requisite procedural safeguards had not been put in place to prevent arbitrary application of the relevant substantive law. In particular, domestic law did not set out any time-limits for initiating and conducting proceedings against a judge for a “breach of oath”. The absence of any limitation periods, as discussed above under Article 6 of the Convention, made the discretion of the disciplinary authorities open-ended and undermined the principle of legal certainty.", "182. Moreover, domestic law did not set out an appropriate scale of sanctions for disciplinary offences and did not develop rules ensuring their application in accordance with the principle of proportionality. At the time when the applicant’s case was determined, only three sanctions for disciplinary wrongdoing existed: reprimand, downgrading of qualification class, and dismissal. These three types of sanction left little room for disciplining a judge on a proportionate basis. Thus, the authorities were given limited opportunities to balance the competing public and individual interests in the light of each individual case.", "183. It is worth noting that the principle of proportionate application of disciplinary sanctions on judges is directly cited in paragraph 5.1 of the European Charter on the statute for judges (see paragraph 78 above), and that certain States have set up a more detailed hierarchy of sanctions to meet this principle (see paragraph 82 above).", "184. Finally, the most important counterbalance against the inevitable discretion of a disciplinary body in this area would be the availability of an independent and impartial review. However, domestic law did not lay down an appropriate framework for such a review and, as discussed earlier, it did not prove to be available to the applicant.", "185. Accordingly, the absence of any guidelines and practice establishing a consistent and restrictive interpretation of the offence of “breach of oath” and the lack of appropriate legal safeguards resulted in the relevant provisions of domestic law being unforeseeable as to their effects. Against this background, it could well be assumed that almost any misbehaviour by a judge occurring at any time during his or her career could be interpreted, if desired by a disciplinary body, as a sufficient factual basis for a disciplinary charge of “breach of oath” and lead to his or her removal from office.", "(iv) Conclusion", "186. In the light of the above considerations, the Court concludes that the interference with the applicant’s right to respect for his private life was not lawful: the interference was not compatible with domestic law and, moreover, the applicable domestic law failed to satisfy the requirements of foreseeability and provision of appropriate protection against arbitrariness.", "187. There has therefore been a violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "188. The applicant further complained that he had had no effective remedies in respect of his unlawful dismissal. He relied on Article 13 of the Convention, which provides as follows:", "“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "189. Having examined the parties’ submissions under this head, the Court considers that the complaint is admissible. However, given the Court’s findings under Article 6 of the Convention, the present complaint does not give rise to any separate issue (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports 1997-VIII).", "190. Consequently, the Court holds that it is not necessary to examine the complaint under Article 13 of the Convention separately.", "IV. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION", "191. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "192. Article 46 of the Convention provides:", "“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.", "2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.", "...”", "A. Indication of general and individual measures", "1. General principles", "193. In the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which the Court finds a breach of the Convention imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow, or allows only partial reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows, inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004 ‑ I; Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004 ‑ II; and Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR 2004-VII).", "194. The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States to secure the rights and freedoms guaranteed under the Convention (Article 1) (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B).", "195. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a violation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In certain cases, the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate a specific measure (see, for example, Assanidze, cited above, §§ 202-03; Aleksanyan v. Russia, no. 46468/06, § 240, 22 December 2008; and Fatullayev v. Azerbaijan, no. 40984/07, §§ 176-77, 22 April 2010).", "2. As to the present case", "(a) General measures", "(i) The parties’ submissions", "196. The applicant submitted that his case evidenced fundamental systemic problems in the Ukrainian legal system arising from the State’s failure to respect the principle of the separation of powers; these systemic problems required the application of Article 46 of the Convention. He argued that the problems disclosed in the present case spoke to the necessity of amending the relevant area of domestic legislation. In particular, amendments had to be introduced to the Constitution and the HCJ Act 1998 concerning the principles of composition of the HCJ and the procedures for the appointment and dismissal of judges, and to the Code of Administrative Justice as regards the jurisdiction and powers of the HAC.", "197. The Government disagreed and submitted that applicable domestic law had significantly changed since the time the applicant’s case had been determined by the domestic authorities. In particular, the amendments of 7 July 2010 to the HCJ Act 1998 had provided that the number of judges participating in the HCJ would increase and eventually constitute the majority of that body (see paragraph 68 above). In June 2012 the HCJ Act 1998 had been further amended to provide that preliminary inquiries instigated by the prosecutor’s office should not be carried out by a member of the HCJ who had been or continued to be a prosecutor.", "198. The Government further pointed out that the role of Parliament in the procedure for the dismissal of a judge had been diminished, as there was no longer a requirement for a review of the case by a parliamentary committee or for any other form of parliamentary inquiry.", "(ii) The Court’s assessment", "199. The Court notes that the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the violations found in the case suggest that the system of judicial discipline in Ukraine has not been organised in a proper way, as it does not ensure sufficient separation of the judiciary from other branches of State power. Moreover, it does not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence, the latter being one of the most important values underpinning the effective functioning of democracies.", "200. The Court considers that the nature of the violations found suggests that for the proper execution of the present judgment the respondent State would be required to take a number of general measures aimed at reforming the system of judicial discipline. These measures should include legislative reform involving the restructuring of the institutional basis of the system. Furthermore, these measures should entail the development of appropriate forms and principles of coherent application of domestic law in this field.", "201. As regards the Government’s contentions that they had already put in place certain safeguards in this area, the Court notes that the legislative amendments of 7 July 2010 did not have immediate effect and the recomposition of the HCJ will have to take place gradually in the future. In any event, the Court has noted that these amendments do not in fact resolve the specific issue of the composition of the HCJ (see paragraph 112 above). As to the other legislative amendments outlined by the Government, the Court does not consider that they substantially address the whole range of the problems it has identified in the context of this case. There are many issues, as discussed in the reasoning part of this judgment, indicating defects in the domestic legislation and practice in this area. In sum, the legislative steps mentioned by the Government do not resolve the problems of systemic dysfunctions in the legal system disclosed by the present case.", "202. Therefore, the Court considers it necessary to stress that Ukraine must urgently put in place the general reforms in its legal system outlined above. In so doing, the Ukrainian authorities should have due regard to this judgment, the Court’s relevant case-law and the Committee of Ministers’ relevant recommendations, resolutions and decisions.", "(b) Individual measures", "(i) The parties’ submissions", "203. The applicant argued that the most appropriate form of individual redress would be his reinstatement or the restoration of his employment. In the alternative, he requested that the Court oblige the respondent State to reopen the domestic proceedings.", "204. The Government submitted that there was no need for any specific orders concerning individual redress, as these matters would be properly dealt with by the Government in cooperation with the Committee of Ministers.", "(ii) The Court’s assessment", "205. The Court has established that the applicant was dismissed in violation of the fundamental principles of procedural fairness enshrined in Article 6 of the Convention, such as the principles of an independent and impartial tribunal, legal certainty and the right to be heard by a tribunal established by law. The applicant’s dismissal has also been found to be incompatible with the requirements of lawfulness under Article 8 of the Convention. The dismissal of the applicant, a judge of the Supreme Court, in manifest disregard of the above principles of the Convention, could be viewed as a threat to the independence of the judiciary as a whole.", "206. The question therefore arises as to what individual measures would be the most appropriate to put an end to the violations found in the present case. In many cases where the domestic proceedings were found to be in breach of the Convention, the Court has held that the most appropriate form of reparation for the violations found could be the reopening of the domestic proceedings (see, for example, Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, § 262, 26 July 2011, with further references). In so doing, the Court has specified this measure in the operative part of the judgment (see, for example, Lungoci v. Romania, no. 62710/00, 26 January 2006, and Ajdarić v. Croatia, no. 20883/09, 13 December 2011).", "207. Having regard to the above conclusions as to the necessity of introducing general measures for reforming the system of judicial discipline, the Court does not consider that the reopening of the domestic proceedings would constitute an appropriate form of redress for the violations of the applicant’s rights. There are no grounds to assume that the applicant’s case would be retried in accordance with the principles of the Convention in the near future. In these circumstances, the Court sees no point in indicating such a measure.", "208. Having said that, the Court cannot accept that the applicant should be left in a state of uncertainty as regards the way in which his rights should be restored. The Court considers that by its very nature the situation found to exist in the instant case does not leave any real choice as to the individual measures required to remedy the violations of the applicant’s Convention rights. Having regard to the very exceptional circumstances of the case and the urgent need to put an end to the violations of Articles 6 and 8 of the Convention, the Court holds that the respondent State shall secure the applicant’s reinstatement to the post of judge of the Supreme Court at the earliest possible date.", "B. Damage", "1. Pecuniary damage", "209. The applicant claimed that as a result of the unfair proceedings brought against him which had resulted in his dismissal as a Supreme Court judge, he had been denied his entitlement to the salary of a Supreme Court judge, a salary allowance, and a judicial pension. The applicant provided a detailed calculation of his claim for pecuniary damage, which amounted to 11,720,639.86 Ukrainian hryvnias (UAH) or 1,107,255.87 euros (EUR).", "210. The Government contested this claim and submitted that it was speculative, exorbitant and unsubstantiated.", "211. In the circumstances of the present case, the Court considers that the question of compensation for pecuniary damage is not ready for decision. That question must accordingly be reserved and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant (Rule 75 §§ 1 and 4 of the Rules of Court).", "2. Non-pecuniary damage", "212. The applicant claimed that as a result of his unfair dismissal, he had suffered considerable distress and frustration which could not be sufficiently redressed by the findings of violations. He sought an award of just satisfaction for non-pecuniary damage in the amount of EUR 20,000.", "213. The Government contended that the claim in respect of non ‑ pecuniary damage had been unsubstantiated.", "214. The Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 6,000 in respect of non-pecuniary damage.", "C. Costs and expenses", "215. The applicant also claimed 14,945.81 pounds sterling (GBP) for costs and expenses incurred before the Court between 23 March and 20 April 2012. The claim consisted of legal fees for the applicant’s representatives in London (Mr Philip Leach and Ms Jane Gordon), who had spent eighty-two hours and forty minutes working on the case in that period; a fee for the European Human Rights Advocacy Centre (EHRAC) support officer; administrative expenses; and translation costs.", "216. In his additional submissions on this topic, the applicant claimed GBP 11,154.95 for costs and expenses incurred in connection with the hearing of 12 June 2012. The claim included legal fees for the applicant’s representatives, who had spent sixty-nine hours and thirty minutes working on the case; a fee for the EHRAC support officer; administrative disbursements; and translation costs.", "217. The applicant asked that any award under this head be paid directly into the bank account of the EHRAC.", "218. The Government argued that the applicant had failed to show that the costs and expenses had been necessarily incurred. Moreover, they had not been properly substantiated.", "219. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 12,000 covering costs under all heads. The amount shall be paid directly into the bank account of the applicant’s representatives.", "D. Default interest", "220. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1972 and lives in Pakruojis.", "A. The applicant ’ s conviction", "6. In 1996 the applicant graduated from the Lithuanian Police Academy with a degree in law. He worked as an investigator at Šiauliai city police headquarters.", "7. On 3 October 2000 the Šiauliai Regional Court established that from 1995 to 1996, when he had been working as an investigator, the applicant had several times solicited and sometimes succeeded in getting bribes for discontinuing criminal proceedings. The victims of the applicant ’ s crimes, who were suspects in criminal proceedings or their relatives, had been threatened and sometimes harassed sexually by the applicant. He would tell them that “ the case would end badly ( blogai baigsis ) ” if they did not meet his demands. The Šiauliai Regional Court found that such actions amounted to the intentional crimes of abuse of office (Article 285 of the Criminal Code) and bribery (Article 282 of the Criminal Code). The court also noted that the applicant had not acknowledged his guilt, but had instead tried to justify his criminal acts and avoid taking responsibility for them in any way possible. The trial court sentenced him to eight years ’ deprivation of liberty in a correctional labour colony under a strict regime, ordered the confiscation of all his property, and prohibited him from working in law enforcement or the justice system for five years.", "8. The applicant ’ s conviction was upheld by the Court of Appeal on 29 June 2001 and by the Supreme Court on 18 December 2001.", "9. In 2003, upon entry into force of the new Criminal Code, the Šiauliai Regional Court requalified the applicant ’ s sentence to four years and seven months ’ deprivation of liberty. The applicant was released from prison on 8 September 2003 after serving his sentence.", "10. By a ruling of 17 June 2005 the Šiauliai Regional Court expunged the applicant ’ s conviction from his criminal record. The court noted that the applicant had served his sentence. He had been convicted of crimes of medium severity. The court also took account of the fact that the applicant had not committed any violations of administrative law, had been bringing up a child alone, had been described in positive terms by people at his place of residence and at his workplace, had drawn the right conclusions from the crimes he had committed, and had promised not to commit any crimes in the future. The ruling was not appealed against and became enforceable.", "11. According to the applicant ’ s curriculum vitae, which he later submitted to the Bar Association, from May 2004 he worked as in-house lawyer and loan administrator in various private companies.", "B. The applicant ’ s admission to the position of trainee advocate and the disciplinary proceedings before the Advocates ’ Court of Honour", "12. On 1 2 January 2007 the applicant wrote to the Lithuanian Bar Association, which regulates advocates ( lawyers admitted to the Bar, advokatas ), requesting to be admitted as a trainee advocate. He asked that an advocate V.S.B. be appointed as his supervisor in his work practice. The applicant also confirmed in writing that “ none of the grounds listed in the Law on the Bar prevented him from being put on the list of trainee advocates”. The applicant also submitted a written application ( advokato įskaitos lapas ) where he listed his former places of employment, stating that from 22 July 1991 until 15 March 1999 he had worked in the police and from 19 March 2004 in the private sector. There was no explanation about the period between 1999 and 2004.", "13. The Bar Association placed the applicant ’ s name on the list of trainee advocates on 25 January 2007 and advocate V.S.B. was appointed as his supervisor.", "14. On 13 June 2007 the Bar Association received a letter from a private person, L.G., informing it that the applicant had withheld information from the Bar Association that he had been previously convicted.", "15. On 20 June 2007 the Bar Association held that by failing to inform it of the conviction, the applicant had withheld information relevant to assessing his reputation, and that therefore he had shown that his attitude towards the standing of the Lithuanian Bar and towards becoming a trainee advocate was not honest and respectful. The Bar Association considered that the applicant had breached points 1.3, 12.1 and 13.2 of the Lithuanian Code of Professional Ethics for Advocates (see paragraph 37 below – hereinafter, “ the Code of Ethics ” ), and disciplinary proceedings against him were therefore justified. The Bar Association also considered that the applicant ’ s supervisor, V.S.B., had likewise breached the Code of Ethics but that he would not face disciplinary proceedings owing to his long and positive professional record.", "16. On 10 July 2007 the Disciplinary Committee of the Bar Association held that the applicant had committed a disciplinary violation by withholding information about his conviction by Šiauliai Regional Court on 3 October 2000 (see paragraph 7 above). The committee emphasised the fact that the applicant had not mentioned the conviction or his “ long prison sentence ” in his application to be admitted as a trainee advocate, his curriculum vitae or in the other documents submitted in support. Information about the conviction had been relevant for assessing his reputation. By withholding such information the applicant had acted dishonestly and disrespectfully, and had not protected the prestige of the Lithuanian Bar. The applicant had thus breached points 1.3, 12.1 and 13.2 of the Code of Ethics, which set out the necessary requirements for candidates to become trainee advocates ( see paragraph 37 below ). The case therefore had to be decided by the Court of Honour of Advocates (hereinafter – “ the Court of Honour ” ).", "17. In a letter of 4 September 2007 to the Bar Association the chief prosecutor of Šiauliai Region wrote that the applicant lived in the city of Šiauliai and that in the course of his work as a trainee advocate he had interaction with the same investigators, prosecutors and judges with whom he had worked before committing his crimes and with those who had later investigated his crimes or examined his case in court. Even though the applicant had served his sentence, communication with those investigators, prosecutors and judges caused some strains at work in Šiauliai. The chief prosecutor stated that it would be better if the applicant could be prevented from practising law in the city or region of Šiauliai, even though the Law on the Bar did not provide for the possibility to restrict an advocate ’ s activity within or outside a certain area.", "18. By a letter of 4 September 2007 the Court of Honour informed the applicant about the forthcoming hearing in his case, and invited him to participate in person or have an advocate represent his interests in those disciplinary proceedings. The applicant was present at the hearing, and explained that he had not hidden his conviction. The only reason he had not informed the Bar Association about it was because in his view there had been no requirement to do so. He also asked for the removal of the president of the Court of Honour, J.K., stating that the manner in which the latter had put certain questions to him showed he was biased. The request was refused as unfounded.", "19. The Court of Honour, composed of the presiding advocate, J.K., and two other advocates, A.P. and G.P., met on 25 September and 25 October 2007. They postponed the hearing to a later date on each occasion.", "20. On 23 November 2007 the Court of Honour rejected a request by the applicant to remove J.K. as unsubstantiated, while A.P. was replaced by another advocate, J.M.", "21. The Court of Honour also held on the same day that the applicant had breached the Code of Ethics and imposed the disciplinary measure of ordering his removal from the list of trainee advocates, on the basis of Articles 13 § 1 and 54 § 2 of the Law on the Bar (see paragraph 34 below). In setting out its reasons the Court of Honour had regard to the crimes committed by the applicant and noted that during the criminal court proceedings he had expressed no remorse (see paragraph 7 above ). For the Court of Honour, even though the law did not directly require that a person disclose a prior conviction when submitting a request to become a trainee advocate, such an obligation stemmed from Article 8 ( 4 ) of the Law of the Bar, which required candidates to be of high moral character ( nepriekaištinga reputacija ). Similarly, point 13.2 of the Code of Ethics set out that an advocate had to act honestly and ethically, even if certain acts or behaviour that did not meet the requirements of the Law on the Bar or the Code of Ethics were not described specifically in that Code (see paragraph 37 below). The Court of Honour considered that the crimes which the applicant had committed whilst working in law enforcement had been cynical and had shown great disrespect towards society. Moreover, he had committed those crimes while working in the legal field. In the light of such considerations, the Court of Honour was convinced that the applicant, who had a university degree and had previously had a law - related job, had deliberately withheld information about his prior conviction, because he had been aware that, if information not only about his crimes but also about the manner in which he had committed them had come to light, then the Bar Association would have rejected his application to become a trainee advocate. Lastly, the Court of Honour noted that the profession of advocate was defined not only by legal acts, but also by certain ethical rules, historic practices and society ’ s legitimate expectations as to the assistance an advocate was to provide as part of his or her role. An advocate should therefore always adhere to the moral and legal standards and obligations, protect the professional honour and dignity of advocates and do nothing that would discredit the good name of the profession, the advocate ’ s oath, or the notion of justice.", "C. The Vilnius Regional Court ’ s decision", "22. The applicant challenged the above decision before the Vilnius Regional Court. He argued, inter alia, that there had been procedural beaches and that the Court of Honour had not been impartial. He also maintained that the concept of high moral character applied to advocates was too strict when compared with the requirements for bailiffs or civil servants.", "23. On 24 October 2008 the Vilnius Regional Court dismissed the applicant ’ s appeal as unfounded. It dealt with the applicant ’ s allegations about procedural violations by the Court of Honour by noting that that court had merely postponed the case on 25 September and 25 October 2007, without examining it on the merits (see paragraph 19 above). The applicant ’ s suggestion that the Court of Honour had issued a ruling on either of those dates that the applicant had not committed a disciplinary violation was therefore unfounded. Furthermore, J.K., the advocate who had been the president of the Court of Honour, had been questioned as a witness by the Vilnius Regional Court and had testified that he had not been biased against the applicant; he had only had an opinion about the particular actions performed by the applicant. Moreover, the applicant ’ s allegation about a lack of impartiality on the part of J.K. had also been dismissed as unfounded by the Court of Honour. Lastly, the change in the composition of that court when the case had been decided on 23 November 2007, removing A.P., a member said by the applicant to have been favourable to him (see paragraph 20 above), had not been a decisive factor because the court had been unanimous in its finding against the applicant. The Vilnius Regional Court thus dismissed the applicant ’ s request to summon for questioning advocate A.P., who, according to the applicant, had participated in the hearing when his case had gone before the Court of Honour. On the basis of the written evidence, the first - instance court established that A.P. had not taken part in the disciplinary proceedings against the applicant.", "24. As to the question of the applicant ’ s reputation, the Vilnius Regional Court had particular regard to the crimes of which he had been convicted (see paragraph 7 above). While observing that the conviction had expired, the court noted that the crimes had been committed when the applicant had been working in law enforcement. The manner in which those crimes had been committed and their scale did not allow for the assertion that the applicant had automatically regained the status of being of high moral character immediately after the conviction had been expunged. Were it otherwise, society ’ s expectations as to the morals and ethics of representatives of the advocate ’ s profession would not be met. Only people of high moral character could be trusted to work in the process of the implementation of justice. In other words, the applicant ’ s actions had to be looked at to see not only if they had been in accordance with applicable laws, but also whether they had adhered to the requirements of professional ethics. That stemmed, inter alia, from Article 8 ( 4 ) and other provisions of the Law on the Bar, which provided that an advocate was liable to disciplinary sanctions, including disbarment, for breaches of professional ethics (see paragraph 34 below), and was something that had also been confirmed by the Supreme Court (see paragraph 43 below).", "25. The Vilnius Regional Court concurred with the Court of Honour that the applicant had had a moral obligation to disclose important information such as a prior conviction to the Bar Association when submitting an application to become a trainee advocate, even though that requirement had not been explicitly stated on the application form (see paragraph 12 above, advokato įskaitos lapas ). The fact that, according to the applicant, his supervising advocate, several other advocates in Šiauliai and some members of the Bar Association Council had known about his prior conviction, did not absolve him from the obligation to provide information that was as comprehensive as possible when applying to the Bar, so that it would be possible to assess his reputation objectively and comprehensively. The Court of Honour had also been correct in holding that the applicant had consciously withheld that information because he had understood that the nature of his criminal acts would not have permitted him to be considered as a person of high moral character. In any case, if the applicant had had any doubts about whether the information about his prior conviction was relevant, he could have asked the Bar Association. Consequently, it had been legitimate for the Court of Honour to impose a disciplinary measure on the applicant by removing him from the list of trainee advocates.", "D. The Court of Appeal", "26. The applicant appealed, arguing, inter alia, that the rules of the Code of Ethics had not applied to him at the time when he had requested to become a trainee advocate, given that they applied only to people who were already advocates and trainee advocates. According to the applicant, the president of the Court of Honour had clearly acknowledged to the Vilnius Regional Court that anyone who had disclosed a prior conviction had been admitted to the Bar and that the applicant would also have been admitted if he had done the same. The applicant also relied on Article 5 § 1 (2) of the Law on Bailiffs and Article 9 § 3 (1) of the Law on Civil Service (see paragraphs 41 and 42 below), implying that the definition of high moral character had been interpreted too broadly by the Court of Honour.", "The Bar Association asked that the applicant ’ s appeal be dismissed.", "27. By a ruling of 7 April 2009 the Court of Appeal upheld the Vilnius Regional Court ’ s arguments and dismissed the applicant ’ s appeal. It found that no violations had been committed under Article 6 §§ 1 and 3 of the Convention as regards the fairness of the disciplinary proceedings. The rules regulating disciplinary proceedings did not prohibit postponing examination of a case. Moreover, the applicant had not challenged J.M. ’ s participation in the disciplinary proceedings. It would also have been irrelevant to summon A.P. as she had not sat in the Court of Honour when it had decided on the applicant ’ s case on 23 November 2007.", "28. As to the merits of the complaint, the Vilnius Regional Court had been correct in its interpretation of the Law on the Bar and of established court practice in looking at the applicant ’ s crimes, their manner and scale not only in the light of the Law on the Bar, but also taking into account the rules for advocates ’ professional ethics. There had been no arguments in the applicant ’ s appeal to refute the first-instance court ’ s view of his crimes and behaviour in the light of those ethical requirements. Contrary to the applicant ’ s submission, the first - instance court had relied on Article 8 ( 4 ) of the Law on the Bar and on the Code of Ethics, not on Article 8 (1) of the Law on the Bar. The applicant ’ s argument that the first - instance court had applied Article 8 ( 1 ) of the amended Law on the Bar (see paragraph 35 below) retroactively was therefore unfounded.", "29. Lastly, the Court of Appeal rejected the applicant ’ s argument that he had had no obligation to inform the Bar Association about his prior conviction. The Court of Honour had been correct in finding that such an obligation stemmed from the Law on the Bar and the Code of Ethics, which also applied to the applicant. The Court of Honour ’ s conclusion had been supported by point 12.1 of the Code of Ethics, which set out that the relationship between an advocate and the Bar was based on mutual respect and good - will assistance, and by point 13.2, which stated that an advocate must also adhere to the traditions and customs which corresponded to the common principles of ethics and decency (see paragraph 37 below). As a result, the Court of Honour had had grounds to impose a disciplinary penalty on the applicant and to strike his name off the list of trainee advocates on the basis of Articles 7 § 1 (4), 8 (4), 13 § 1 (1) and 35 of the Law on the Bar.", "E. Final ruling by the Supreme Court", "30. The applicant lodged an appeal on points of law. He submitted, inter alia, that the prohibition on him practising law was in breach of his rights under Articles 8 and 14 of the Convention. He also argued that an expired conviction should not be an obstacle for him to become an advocate. He mentioned that the stricter requirements on reputation under the amendments to Article 8 (1) of the Law on the Bar of 15 April 2008 (see paragraph 35 below), should not have been applied to him retroactively. For the applicant, it was also wrong to apply the Code of Ethics to actions he had committed before becoming a trainee advocate. Lastly, he was also dissatisfied by how his case had been handled by the Court of Honour, relying on Article 6 § 1 of the Convention. He argued that all such considerations meant his case merited review by the Supreme Court because the uniform interpretation of the law was at stake.", "31. On 13 May 2009 the Supreme Court rejected the appeal. It restated its settled case-law ( see paragraphs 43 to 47 below ) that advocates and trainee advocates were part of the justice system, and were therefore not only bound by laws, but also had to protect the spirit of the law and the ideals of justice and lawfulness. Ignorance of requirements of laws discredited the advocate ’ s profession and undermined its prestige. An advocate or trainee advocate who had breached imperative legal norms could not excuse that failing by alleging that he or she did not know the law or that the law was not sufficiently precise, because that person was bound to know the law and ethical requirements as part of his or her job. The activity of advocate was not only regulated by standards applicable to the general public, but also by special requirements set out in the laws regulating the advocate ’ s profession and by professional ethics. The requirements for the applicant ’ s behaviour, which were set out in the rules for professional ethics, were objectively necessary: only a person whose professional behaviour was beyond reproach could be entrusted to take part in the process of the implementation of justice. The notion of the implementation of justice would be discredited if any and every person was allowed to take part in that process, irrespective of his or her behaviour. The applicant ’ s case therefore did not give grounds for cassation appeal because it followed established case-law and was not relevant for developing it.", "32. On 25 June 2009 the applicant attempted to submit another appeal on points of law. He drew the Supreme Court ’ s attention to the Šiauliai Regional Court ’ s ruling of 17 June 2005 to expunge his conviction (see paragraph 10 above).", "33. On 10 July 2009 the Supreme Court found the appeal to be essentially identical to the earlier one and refused to admit it for examination." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Laws and other acts concerning “ high moral character ”", "34. The Law on the Bar ( Advokatūros įstatymas ), as valid at the time of the applicant ’ s admission to the list of trainee advocates on 25 January 2007 and as applied by the Court of Honour and the civil courts in his case, read:", "Article 7. Requirements for a person who wishes to be admitted to the Bar", "“1. A person may be admitted to the Bar if he or she:", "...", "4) is of high moral character;", "... ”", "Article 8. High Moral Character", "“A person shall not be held to be of high moral character and may not be admitted to the Bar if he or she:", "1) has been convicted of a serious or very serious crime ( sunkus ar labai sunkus nusikaltimas ), irrespective of whether or not the conviction has expired, or convicted of any other criminal act and the conviction has not yet expired;", "2) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary ... [or] court bailiff ... for professional misconduct or misconduct in office, or dismissed from the civil service as a result of a disciplinary sanction or dismissed for gross professional misconduct and less than three years have passed from the date of dismissal;", "3) abuses psychotropic, narcotic or toxic substances, or alcohol;", "4) does not meet the requirements laid down for advocates in the Code of Professional Ethics for Advocates which would be applicable to the candidate upon his or her admission to the Bar.”", "Article 13. Declaring a decision to recognise a person as an advocate void", "“1. A decision to recognise a person as an advocate must be declared void if:", "1) new facts come to light after the person has been recognised as an advocate which would have been an obstacle for that person becoming an advocate;", "...", "3) if one of the conditions listed in Article 8 of this law arises after the decision to recognise a person as an advocate. ”", "Article 35. List of trainee advocates", "“1. A person is put on the list of trainee advocates by a decision of the Bar Association. The person may be put on the list if he or she:", "...", "3) is of high moral character, in accordance with Article 8 of this Law ... ”", "Article 39. Advocate ’ s duties", "“An advocate must:", "1) discharge his or her duties honestly. An advocate must comply with the requirements of the Code of Professional Ethics for Advocates and behave in an honest and civic-minded manner;", "2) observe the oath taken by him or her and follow the law in his or her professional practice;", "... ”", "Article 5 2. Disciplinary proceedings", "“ 1. Disciplinary proceedings may be started against an advocate who breaches the requirements of this Law or the Lithuanian Code of Professional Ethics for Advocates.", "2. A decision to start disciplinary proceedings is taken by the Lithuanian Bar or by the Minister of Justice.", "3. Disciplinary cases are examined by the Court of Honour of Advocates ... ”", "Article 53. Disciplinary sanctions", "“If an advocate commits a breach listed in Article 52 § 1 of this Law, the Court of Honour may impose the following disciplinary sanctions:", "1) warning ( pastaba );", "2) reprimand ( papeikimas );", "3) public reprimand ( viešai paskelbiamas papeikimas );", "4) annulment of advocate status.”", "Article 54. Disciplinary liability for trainee advocates", "“1. The provisions of this chapter [on disciplinary liability] also apply to trainee advocates, except for Article 53 ( 4 ).", "2. In addition to the disciplinary sanctions listed in Article 53 ( 1 ) - ( 3 ), the disciplinary sanction of striking a trainee advocate ’ s name off the list of Lithuanian trainee advocates may be imposed.”", "Article 55. Appeal against the Advocates ’ Court of Honour decisions", "“ Appeals against decisions by the Court of Honour of Advocates may be lodged with the Vilnius Regional Court ... ”", "35. Article 8 of the Law on the Bar, after it was amended on 15 April 2008, and until 2 July 2013, stated that a person may not be considered to be of high moral character and cannot be admitted to the Bar, if he or she has been convicted of any intentional crime, and irrespective whether the conviction had expired.", "36. Article 8 of the Law on the Bar, after it was amended on 2 July 2013, currently reads as follows:", "Article 8. High moral character", "“A candidate is not considered to be of high moral character and cannot be admitted to the Bar, if he or she:", "1) has been convicted of a serious or very serious crime and until the conviction has expired ..., and less than four years have passed since serving the sentence or being released from serving the sentence;", "2) has been convicted of any other intentional crime and the conviction has not expired ..., and less than three years have passed since serving the sentence, a suspension of the sentence, or release from serving the sentence;", "3) has been dismissed from his or her position or duties ... because he or she does not meet the requirement of high moral character, or has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary [or] bailiff ... for professional misconduct or dismissed from the civil service ... for gross professional misconduct ... and less than two years have passed since dismissal from that post ...;", "4) abuses psychotropic, narcotic or toxic substances, or alcohol. ”", "37. The Code of Professional Ethics for Advocates ( Advokatų etikos kodeksas ), approved by the Lithuanian Bar Association Conference on 8 April 2005 and valid at the time of the applicant ’ s admission as a trainee advocate, stated the following:", "1. General notions", "“1.1. Lithuanian advocates shall participate in the process of implementation of justice, represent and defend legitimate interests of their clients in court, State or municipal institutions or other organisations.", "1.2. An advocate ’ s practice requires observation of legal and moral obligations vis ‑ à-vis :", "1.2.1. clients;", "1.2.2. the courts and other institutions where the advocate defend clients ’ interests or represent clients, or acts on clients ’ behalf;", "1.2.3. the advocate ’ s profession;", "1.2.4. society.", "1.3. An advocate must always protect the honour and dignity of the profession, and must not discredit the advocate ’ s name, the oath he or she has sworn or the ideal of justice.", "1.4. The aim of this Code is to guarantee proper execution of the essential functions of advocates. An advocate who does not adhere to these rules may face disciplinary sanctions.", "1.5. When defending a client ’ s interests which are protected by law, or when representing a client and while acting in the interests of justice, an advocate must strive to not breach human rights and fundamental freedoms, which are recognised by international and domestic law.”", "2. Rights and obligations of an advocate", "“ ...", "2.1. When carrying out his or her professional practice an advocate has the rights enumerated in the Constitution, the Law on the Bar, other laws or legal acts, in international legal instruments and in this Code.", "2.2. When exercising his or her profession, an advocate has the duties enumerated in the Constitution, the Law on the Bar, other laws or legal acts, in international legal instruments and in this Code.” ...", "12. Advocate ’ s relationship with the Bar", "“ 12.1. An advocate ’ s relationship with the Bar is based on mutual respect and good ‑ will assistance .”", "1 3. Final remarks", "“13.1. The Code of Professional Ethics for Advocates also applies to trainee advocates.", "13.2. When the actions or behaviour of an advocate are not compatible with the Law on the Bar, the by - laws of the Bar, this Code or other legal acts regulating the professional activity of advocates and where such actions or behaviour are not described in this Code, the advocate must follow the traditions and customs which are in line with the common principles of ethics and decency.”", "38. The Code of Professional Ethics for Advocates ( Lietuvos advokatų etikos kodeksas ), approved by the Lithuanian Bar Association on 15 April 2016, and currently in force, reads :", "Article 6. Honesty and behaviour beyond reproach ( nepriekaištingas elgesys )", "“ 1. An advocate ’ s professional honour and honesty are traditional values which must be adhered to as part of the professional duties of an advocate and as a necessary condition for belonging to the body of advocates.", "2. An advocate must always:", "1) maintain his or her professional honour and dignity, abstain from discrediting the name of an advocate, the oath given and the notion ( idėja ) of justice;", "2) be of high moral character and keep it;", "3) behave honestly, politely and fairly;", "...", "3. An advocate must not act in abuse of his or her professional name.", "...", "5. An advocate is prohibited from engaging in any acts or conduct which are incompatible with honesty, other generally accepted norms of ethics and morality or which undermine society ’ s confidence in advocates, harm the reputation of the Lithuanian Bar Association or undermine advocate ’ s professional name .”", "Article 7. Lawfulness of practice", "“1. Lawfulness of an advocate ’ s professional practice is one of the most important principles that determine the role of advocate in the legal system of the State and guarantees for an advocate ’ s professional activities, therefore an advocate must aspire to the ideals ( idealai ) of justice and lawfulness and defend his or her client ’ s rights and lawful interests only in lawful ways and by lawful means, while not violating the prohibitions imposed by legal acts, without exceeding the powers granted to him or her and respecting others ’ rights.", "2. An advocate must always respect the law and act so as not to violate principles of justice.", "...", "5. An advocate must ensure that his or her place of work and the conditions for professional practice meet the requirements of the Law on the Bar and the Lithuanian Bar Association ... ”", "Article 13. Good - will relationship between advocates and the Lithuanian Bar", "“1. The relationship of an advocate with the Lithuanian Bar is based on mutual respect and good - will assistance.", "... ”", "39. The Law on Courts ( Teismų įstatymas ), at the time of the applicant ’ s admission to the list of trainee advocates read, and also currently reads :", "Article 52. High moral character", "“A person may not be held to be of high moral character and may not be appointed as a judge, if he or she:", "1) has been convicted of a crime by a court judgment which has taken effect ...", "2) has been dismissed from the post of judge, advocate, notary ... or the civil service for professional misconduct and less than five years have passed since dismissal;", "...", "4) does not meet other requirements of the Code of Ethics for Judges .”", "40. The Law on Prosecutor ’ s Office ( Prokuratūros įstatymas ) at the time of the applicant ’ s admission to the list of trainee advocates read, and also currently reads :", "Article 25. Requirements for a person who wishes to become a prosecutor", "“1. A person may be admitted to the prosecutor ’ s service if he or she is of high moral character ...", "...", "3. A person shall be regarded as being of high moral character, if ... he or she has not been convicted of a criminal act by a court judgment which has taken effect, or has not been dismissed from service or a post for gross misconduct, or if less than five years have passed after his or her dismissal, and provided that his or her behaviour conforms with the provisions set out in the Code of Ethics for Prosecutors .”", "41. The Law on Bailiffs ( Antstolių įstatymas ), from 22 November 2005 to 30 March 2009, which thus applicable at the time of the applicant ’ s admission to the list of trainee advocates, read as follows :", "Article 5. High moral character", "“1. A person may not be held to be of high moral character if:", "1) he or she has been convicted of a serious or very serious crime, irrespective of whether the conviction has expired;", "2) he or she has been convicted of ... a minor or medium severity serious negligent or intentional crime if the conviction has not expired;", "...", "4) his or her behaviour is incompatible with the requirements of the Code of Professional Ethics for Bailiffs;", "5) he or she has been dismissed from a post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years have passed ... ”", "42. The Law on the Civil Service ( Valstybės tarnybos įstatymas ), as in force at the time of the applicant ’ s admission to the list of trainee advocates and relied on by him during the civil court proceedings, read as follows:", "Article 9. Requirements for applying to the civil service", "“ ...", "3. A person may not be admitted to the civil service if he or she:", "1) has been convicted of a serious or very serious crime, a crime against the civil service or the public interest or of a crime of a corrupt nature and the conviction has not yet expired or has not been expunged ... ”", "B. Domestic courts ’ practice concerning “ high moral character ”", "43. In civil case no. 3K-3-584/1999, decided on 4 November 1999, the Supreme Court held:", "“ ... Assessing from the legal point of view, the actions of an advocate or trainee advocate, the specific function of the Bar and its role within the legal system of the State should be taken into consideration. The role of an advocate is to defend the rights and legitimate interests of the client by lawful ways and means and to seek the implementation of justice. The profession of an advocate is one of the professions whose representatives must comply with higher and stricter standards of conduct. Not only the common standards of conduct but also special requirements established both by the laws regulating the activity of the Bar and the rules of professional ethics are applicable in respect of an advocate ’ s practice. The necessity for requirements established by the rules of professional ethics is an objective one : only a person of high moral character can be trusted to participate in the process of administration of justice. Permitting anyone to participate in this process, without regard to his or her conduct, would discredit the idea of administration of justice.", "... Point 3 of the Code of Professional Ethics for Advocates requires that an advocate or a trainee advocate must obey the law precisely and without circumventing it, and must be of high moral character and of irreproachable behaviour. Therefore, it is not enough to assess an advocate ’ s actions only by having regard to the law; they must also be assessed in the context of the rules regulating professional ethics. Finding that actions of an advocate or trainee advocate do not amount to a crime and therefore may not be reproached from the point of view of criminal law does not automatically mean that the requirements of professional ethics have not been violated.", "... An advocate or trainee advocate who has violated imperative legal norms cannot plead either ignorance of law or ignorance of rules of professional ethics, or that a law is not sufficiently detailed. An advocate or trainee advocate must know the law and the rules of professional ethics as part of their job. ”", "44. In civil case no. 3K-3133/2000, decided on 7 February 2000, the Supreme Court held:", "“ ... when admitting the former judges to the Bar, not only should their behaviour but also their professional activity be evaluated. ... Serious breaches of law by a judge do not comply with the requirement of high moral character of a person wishing to be admitted to the Bar. Respect for the law and its perfect execution are very important characteristics in a person wishing to become an advocate ... ”", "45. In civil case no. 2A-220/2000, decided on 5 September 2000 the Court of Appeal held:", "“ ... commission of a crime has significant importance when evaluating a person ’ s character ... ”", "46. In civil case no. 3K-7-168/2001, decided on 9 January 2001 and concerning readmittance to the Bar, the enlarged chamber of the Supreme Court noted that there was no breach of the law which could permanently impede a person from being readmitted to the Bar. Even so, a lawyer who wished to be readmitted to the Bar and who was trying to prove having regained high moral character, should provide clear and persuasive evidence, that he or she had followed all the rules of ethics and discipline and did not lose skills. The court, which heard such a case, then had to verify: 1) what was the nature of the breaches of law, which led to the advocate ’ s disbarment; 2) what personal, family or other circumstances were influential in the breach of law being committed; 3) how the person behaved during the time when he or she was disbarred; 4) whether the person had been rehabilitated; 5) whether his or her competence was sufficient.", "47. In civil case no. 3K-3-80/2009 of 23 February 2009 the Supreme Court upheld the appellate court conclusion that a person had the right to apply to a court for a ruling of having regained high moral character in order to be admitted to the Bar. The Supreme Court held that the Court of Appeal in that case had not concluded that the claimant could not practice as an advocate at all, but that she had only failed to prove that she had regained the status of being of high moral character.", "C. Other relevant domestic law", "48. The Supreme Court may take a case up if the lower courts have departed from the Supreme Court ’ s practice as to how a certain legal rule should be interpreted and applied, or if the Supreme Court ’ s practice as to a certain legal question has not been uniform (Articles 346 and 350 of the Code of Civil Procedure). The Code of Civil Procedure currently reads that a civil case may be reopened if the European Court of Human Rights finds that a domestic court decision has breached an applicant ’ s rights under the Convention or one of its Protocols (Article 366 § 1).", "III. RELEVANT INTERNATIONAL MATERIALS", "49. Recommendation R (2000) 21 of the Council of Europe ’ s Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) states as follows:", "“ The Committee of Ministers ...", "...", "... Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms;", "Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms;", ". ..", "Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.", "...", "Principle I – General Principles on the freedom of exercise of the profession of lawyer", "...", "2. Decisions concerning the authorisation to practice as a lawyer or to accede to this profession should be taken by an independent body. Such decisions, whether or not they are taken by an independent body, should be subject to a review by an independent and impartial judicial authority.", "...", "Principle II – Legal education, training and entry into the legal profession", "...", "2. All necessary measures should be taken in order to ensure a high standard of legal training and morality as a prerequisite for entry into the profession and to provide for the continuing education of lawyers ... ”", "50. The Council of Bars and Law Societies of Europe (CCBE) has adopted two foundation texts: the Code of Conduct for European Lawyers, which dates back to 28 October 1988 and has undergone a number of amendments, and the Charter of Core Principles of the European Legal Profession, which was adopted on 24 November 2006. The Charter contains a list of ten core principles common to the national and international rules regulating the legal profession, amongst which the following principles are enumerated :", "“ ...", "(d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer;", "...", "(h) respect towards professional colleagues;", "(i) respect for the rule of law and the fair administration of justice; and", "(j) the self-regulation of the legal profession.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "51. The applicant complained that his being removed from the list of trainee advocates had been in breach of his right to respect for his private life, had no legal basis and had been discriminatory. He also argued that the Court of Honour ’ s examination of his disciplinary case had been unfair.", "52. Although the applicant relied on Articles 6, 7, 8 and 14 of the Convention when making his complaints, the Court considers, in the light of the materials in the file, that they fall to be examined on the basis of Article 8 alone, which, in so far as relevant, reads as follows:", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The submissions by the parties", "( a ) The Government", "53. The Government firstly argued that the applicant ’ s complaint was incompatible ratione materiae with the provisions of Article 8. They contended that the applicant ’ s removal from the list of trainee advocates had not had such a big influence on his professional life, and had not affected his relationships with the outside world to such an extent as to have had an adverse effect on his private life. The applicant ’ s case was very different to that of Bigaeva v. Greece (no. 26713/05, § 39, 28 May 2009) because the applicant had actually had the possibility to work in the legal area after graduating with a law degree : firstly, as a police investigator, and later, almost immediately after serving his sentence and being released from prison, as in-house lawyer in the private sector, until becoming a trainee advocate (see paragraph 11 above). As far as the Government knew, the applicant had continued to work as a lawyer in the private sector after being dropped from the list of trainee advocates. Moreover, in Bigaeva the Court had held that the profession of advocate had certain aspects of public service. In the Government ’ s view, that further supported the argument that a right to be admitted to the Bar did not fall within the sphere of private life within the meaning of Article 8.", "54. The Government also submitted that the complaint was inadmissible for failure to exhaust domestic remedies. The Supreme Court had twice refused to examine the applicant ’ s appeal on points of law, concluding that it had not raised any new legal issues and that the question of “ high moral character ” had already been settled by case-law. The Government also stated that in his appeals on points of law the applicant had failed to articulate a problem of law related to the assessment of “ high moral character ” with regard to non-disclosure of relevant information to the Bar Association or to the nature and extent of the crimes he had committed.", "(b) The applicant", "55. The applicant submitted that the restrictions on him practising law as an advocate had interfered with his right to respect for his private life and were therefore covered by Article 8 of the Convention. He relied on a number of Court judgments, including Niemietz v. Germany (16 December 1992, § 29, Series A no. 251 ‑ B). He disagreed with the Government ’ s objection of non-exhaustion of domestic remedies.", "2. The Court ’ s assessment", "(a) As to the admissibility of the complaint ratione materiae", "56. The Court reiterates that Article 8 of the Convention “protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world” (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III), and that the notion of “private life” does not in principle exclude activities of a professional or business nature (see C. v. Belgium, 7 August 1996, § 25, Reports of Judgments and Decisions 1996 - III). Although no general right to employment can be derived from Article 8, the Court has previously had occasion to address the question of the applicability of Article 8 to the sphere of employment (see Travaš v. Croatia, no. 75581/13, § 52, 4 October 2016). It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world (see Mateescu v. Romania, no. 1944/10, § 2 0, 14 January 2014 ). It would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his or her own personal life as he or she chooses and to exclude therefrom entirely the outside world not encompassed within that circle (see Niemietz, cited above, § 29, and Fernández Martínez v. Spain [GC], no. 56030/07, § 109, ECHR 2014 (extracts)).", "57. The Court has further held that restrictions on registration as a member of certain professions (for instance, lawyer or notary), which could to a certain degree affect the applicant ’ s ability to develop relationships with the outside world undoubtedly fall within the sphere of his or her private life (see Campagnano v. Italy, no. 77955/01, § 54, ECHR 2006 - IV). In the case of Bigaeva ( cited above, § § 2 3-25 ), the Court held that Article 8 could also cover employment, including the right of access to a profession, specifically that of lawyer.", "58. In the present case, the Court observes that the applicant had a degree in law and that from 199 1 up to his conviction he worked as a police investigator (see paragraphs 6, 7 and 12 above). After his conviction had been expunged, he practised law as in-house lawyer in the private sector and also worked as trainee advocate for ten months (see paragraphs 13 and 21 above). According to the Government, he continued working as in -house lawyer after his removal from the list of trainee advocates (see paragraphs 11 and 53 above). Taking into account the applicant ’ s education and his prior professional experience, the Court is ready to accept that the Lithuanian authorities ’ decision to remove him from the list of trainee advocates did affect his ability to pursue his professional activity and that there were consequential effects on the enjoyment of his right to respect for his “private life” within the meaning of Article 8 ( ibid.; see also, mutatis mutandis and regarding a ban to be reinstated as a civil servant, Naidin v. Romania, no. 38162/07, § 34, 21 October 2014, with further references ). The Government ’ s objection that the complaint is inadmissible ratione materiae must therefore be dismissed.", "(b) As to the exhaustion of the domestic remedies", "59. The Court notes that the applicant ’ s complaint about a purportedly erroneous interpretation of the requirements for high moral character and of the applicability of certain norms of the Law of the Bar and the Code of Ethics to his situation were examined by the Court of Honour and civil courts at three levels of jurisdiction (see paragraphs 21, 24, 25, 28, 29 and 31 above). In his submissions to the Supreme Court, which was the last instance to examine his complaints, the applicant also referred to the fact that his conviction had expired (see paragraphs 30 and 32 above), a circumstance which was directly related to his argument that he was of high moral character. In fact, the Supreme Court even provided certain explanations and answers to the applicant ’ s complaints and examined the question of reputation for advocates, which is at the heart of this case (see paragraph 31 above; also see Beiere v. Latvia, no. 30954/05, § 37, 29 November 2011). Contrary to what has been implied by the Government, the Court does not consider that the question of the disclosure of his conviction to the Bar Association was an issue that was fundamentally distinct from the all-inclusive matter of reputation already raised by the applicant (see paragraph 54 above). Furthermore, under the domestic law, the Supreme Court alone had the task of deciding whether the applicant ’ s appeal on points of law raised questions of such importance that they merited examination (see paragraph 48 above ). Last but not least, the applicant pointed out to the Supreme Court that the prohibition on him practising law was in breach of Article 8 of the Convention (see paragraph 30 above). Accordingly, taking into account the matters voiced overall by the applicant, the Court is ready to accept that he raised his grievance in essence and thus provided the domestic authorities with an opportunity to put right the alleged violation ( see, mutatis mutandis, Vladimir Romanov v. Russia, no. 41461/02, § 52, 24 July 2008 ). That being so, the Government ’ s objection that the applicant did not properly exhaust domestic remedies must be dismissed.", "(c) Conclusion", "60. The Court also notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "61. The applicant was dissatisfied with his being struck off the list of trainee advocates. He argued that it had been “ unsound and illogical ” for the courts to apply the Code of Ethics to the applicant ’ s actions taken before he had become a trainee advocate. The applicant also implied that the domestic courts retroactively based unfavourable decisions on Article 8 ( 1 ) of the Law on the Bar, as amended in 2008 (see paragraph 35 above), and thus barring anyone convicted of an intentional crime from ever becoming an advocate.", "62. From the applicant ’ s point of view, the decision to remove him from the list had also been disproportionate. He underlined that the Šiauliai Regional Court had characterised him favourably when expunging his conviction (see paragraph 10 above). Accordingly, his prior conviction should not have been sufficient to disbar him for lack of high moral character. To make matters worse, he had been treated unfairly, and in a discriminatory manner, for there were lawyers with previous conviction who had been admitted to the Bar in Lithuania after their conviction had expired. The applicant referred in particular to Mr. Kęstutis Ramanauskas (see Ramanauskas v. Lithuania [GC], no. 74420/01, § 29, ECHR 2008), who had been a practising advocate since 2004. The fact that a criminal record, as such, was not an obstacle to admit others to the Bar had also been acknowledged by the President of the Court of Honour himself (see paragraph 26 above). The applicant also disputed the reasons behind the disciplinary action taken against him. On that point, the applicant stated that his criminal record had been known to his supervising advocate and some members of the Bar Association Council, and that the documents which needed to be filled in when applying to the Bar had not required that a candidate indicate any prior conviction. It was also because of unfairness of the decision making and partiality of the Court of Honour that the applicant could not have proven his case.", "63. Responding to the Government ’ s letter of 5 March 2014 (see paragraph 68 below ), the applicant implied that the amendment to the Law of the Bar of 2 July 2013 had no bearing on his situation. The domestic court decisions in his case had been final and had meant that he could never become an advocate owing to a lack of high moral character. The European Court of Human Rights alone could remedy his situation because a finding of a violation of the applicant ’ s rights under the Convention would be a ground to reopen civil proceedings in Lithuania (see paragraph 48 above).", "(b) The Government", "64. Should the Court decide that the applicant ’ s removal from trainee advocates ’ list for lack of high moral character had interfered with his private life, the Government considered that such an interference had had a legal basis, namely Article 8 ( 4 ) of the Law on the Bar, and points 13. 1 and 13. 2 of the Code of Ethics (see paragraphs 34 and 37 above). The requirement of high moral character for those seeking to become an advocate thus clearly stemmed from domestic law and was supported by the well-established and consistent practice of the domestic courts. That case ‑ law, which the applicant could reasonably be assumed to have been aware of, made it clear that a person ’ s earlier activities or behaviour could also come under scrutiny. Furthermore, high professional standards for advocates, including a requirement to be of high moral character, had been envisaged in the pursuit of the legitimate aim of safeguarding the interests of the public. Given the special nature of the work of advocates, namely the protection of the rights of others in need, such as safeguarding the right to a defence, the State had a legitimate aim when setting out requirements for people wishing to practise law as advocates, since they participated in the administration of justice.", "65. The Government submitted that the prohibition on the applicant from practising law as an advocate had been necessary. It was common practice among the Contracting States to require high professional standards in certain legal professions, such as that of judge, prosecutor or advocate, including a requirement for behaviour that was beyond reproach or that of “ high moral character ”. Prior conviction had an inevitable impact on a person ’ s ability to meet such requirements. Sometimes, a criminal conviction could have a permanent impact and a person might never be considered as being of the required high moral character. To the Government ’ s knowledge, such was the legal regulation as established in Latvia, Estonia and Turkey; in Poland, disbarment might be permanent following disciplinary proceedings. In other countries, presumption of the lack of high moral character might be valid for up to ten years (the Government referred to Belgium, Croatia and Portugal). There was also a common practice that the expiry of the conviction did not automatically mean that a person could not be reproached from a professional - ethics point of view. Usually the question of regaining one ’ s good name was left to the discretion of certain authorities, which also took into account the gravity of the offence and whether it had been committed while performing a professional activity (the Government referred to the practice in France, Austria, Slovenia and the Czech Republic).", "66. Although the finding that the applicant had not regained his status as being of high moral character had been made with regard to his conviction, the domestic courts had also stressed the fact he had withheld the information about his conviction. They had also had regard to the nature and extent of the applicant ’ s crimes, which he had committed as a State officer in the system of the administration of justice. It had therefore been necessary to take action against the applicant, given the advocate ’ s role in the system of the administration of justice and the requirements of higher standards of behaviour imposed on that profession. Moreover, the applicant could always re - apply for admission to the Bar in future, or ask a court to reconsider whether he had regained the status of being of high moral character. The Government also noted the Court ’ s conclusion that applicants were not protected against an inability to find employment for a certain period of time under Article 8 of the Convention (they cited Karov v. Bulgaria, no. 45964/99, § 88, 16 November 2006 ). In the instant case, the applicant had been able to work as in-house lawyer in the private sector both before and after being a trainee advocate. That only confirmed the proportionality of the interference in the applicant ’ s case.", "67. As regards the applicant ’ s statements of alleged discrimination with regard to other advocates who also had prior convictions, the Government considered that issue to be irrelevant for this case, because the Court of Honour and the civil courts had examined the applicant ’ s individual situation, in particular the disciplinary offence of withholding information. The Government also considered that there were no indications that the applicant had been discriminated against when compared with the requirement of high moral character applied in other legal professions.", "68. Lastly, by a letter of 5 March 2014 the Government informed the Court that after the Law on the Bar had been amended in 20 1 3 (see paragraph 36 above) there was no formal statutory ban on the applicant exercising the professional activity of advocate. However, to the Government ’ s knowledge, the applicant had not addressed the Lithuanian Bar Association on that point.", "2. The Court ’ s assessment", "(a) Whether there was an interference", "69. The parties have disputed whether the decision to dismiss the applicant from the list of trainee advocates had an impact on his professional activities and thus on his private life. Whilst acknowledging that the applicant, who had a degree in law (see paragraph 6 above), could practise law in the private sector both before and after his dismissal, the Court nevertheless notes that even before his dismissal as a trainee advocate, there were certain strains over his working in that role in Šiauliai (see paragraph 17 above). It is not unreasonable to hold that the Bar Association ’ s decision to dismiss the applicant, together with the reasons given by the Court of Honour and the civil courts, only additionally dented the applicant ’ s name (see paragraphs 21, 24, 25, 29 and 31 above), which must have further hampered his professional reputation (see Milojević and Others v. Serbia, nos. 43519/07 and 2 others, § 60, 12 January 2016, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 166, ECHR 2013 ).", "70. That being so, the Court will proceed on the assumption that the applicant ’ s dismissal as a trainee advocate constituted an interference with his right to respect for his private life within the meaning of Article 8 of the Convention.", "(b) Whether the interference was justified", "71. The above-mentioned interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, pursuing one or more of the legitimate aims listed therein, and being “necessary in a democratic society” in order to achieve the aim or aims concerned (see S.H. and Others v. Austria [GC], no. 57813/00, § 89, CEDH 2011).", "(i) Whether the interference was in accordance with the law", "72. The Court firstly notes that the Court of Honour and the civil courts relied on Article 8 ( 4 ) of the Law on the Bar when holding that the applicant was not of high moral character (see paragraphs 21, 24 and 28 above ). Contrary to the applicant ’ s assertion, the disciplinary sanction was not based on Article 8 ( 1 ) of that law, which at the material time read that a person may not become an advocate because of a criminal conviction (see paragraph 28 above). Furthermore, the Court of Appeal also relied on points 12.1 and 13. 2 of the Code of Ethics, which also applies to trainee advocates (see paragraphs 29 and 37 above), and which, as considered by the Court of Appeal and the Supreme Court, also applied to the applicant ’ s situation (see paragraphs 26 and 29 – 31 above). The courts also referred to numerous other provisions of the Law on the Bar, of the Code of Ethics, and the Supreme Court ’ s case-law to explain their decisions that the applicant did not meet the criteria applicable to candidates to the Bar (see paragraphs 21, 24, 28, 29 and 31 above). The Court therefore finds that the interference was prescribed by law within the meaning of Article 8 § 2 of the Convention.", "(ii) Whether the interference pursued a legitimate aim", "73. The Court also accepts the Government ’ s argument (see paragraph 64 above) that the interference in question served the aim of protecting the rights of others. That was also noted by the Court of Honour, and reiterated by the Vilnius Regional Court and the Supreme Court, which underlined the advocates ’ obligations towards society and the need to safeguard the good functioning of the justice system overall (see paragraphs 21, 24, and 31 above above).", "(iii) Whether the interference was “necessary in a democratic society”", "74. At the outset the Court reiterates the most important role played by the lawyers in the administration of justice (see, on this point, Schöpfer v. Switzerland, 20 May 1998, §§ 29-30, Reports 1998-III; Nikula v. Finland, no. 31611/96, § 45, ECHR 2002-II; Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Kyprianou v. Cyprus [GC], no. 73797/01, § 173, ECHR 2005 ‑ XIII; and André and Another v. France, no. 18603/03, § 42, 24 July 2008; all cited in Morice v. France [GC], no. 29369/10, § 132, ECHR 2015 ). The Court has also held that for members of the public to have confidence in the administration of justice they must have confidence in the ability of the legal profession to provide effective representation (see Kyprianou, cited above, § 175).", "75. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties and restrictions, particularly with regard to their professional conduct, which must be discreet, honest and dignified (see Casado Coca v. Spain, 24 February 1994, § 46, Series A no. 285-A; Steur v. the Netherlands, no. 39657/98, § 38, ECHR 2003-XI; Veraart v. the Netherlands, no. 10807/04, § 51, 30 November 2006; and Morice, cited above, § 133).", "76. The Court has also held that any criminal proceedings entail certain consequences for the private life of an individual who has committed a crime. They are compatible with Article 8 of the Convention provided that they do not exceed the normal and inevitable consequences of such a situation (see Karov, cited above, § 88 ).", "77. Turning to the circumstances of this case, the Court notes that the domestic courts ’ findings that the applicant was not of high moral character were based on consistent domestic case-law, which emphasises the high standards applicable to the profession of advocate (see paragraphs 43 and 44 above). In fact, the domestic authorities underlined that the applicant had committed his crimes while working in law enforcement, and that those crimes had been extremely cynical in nature, which obviously contradicted the requirements of professional ethics (see paragraphs 21, 24 and 28 above). The Court also notes that in 2000, in finding the applicant guilty, the Šiauliai Regional Court also prohibited him from working in law enforcement and the justice system for five years (see paragraph 7 above). Given the nature of the crimes the applicant committed, the Court does not consider it unreasonable that first the Court of Honour and then the civil courts found that it was inappropriate to regard the applicant as being a person of high moral character so as to qualify to work in the justice system. In that connection, the Court notes that in its Recommendation R (2000) 21, the Committee of Ministers of the Council of Europe has emphasised that the profession of an advocate must be exercised in such a way that it strengthens the rule of law (see paragraph 49 above). Furthermore, the principles applicable to advocate ’ s profession contain such values as the dignity and honour of the legal profession, the integrity and good standing of the individual advocate, respect towards professional colleagues, as well as respect for the fair administration of justice (see paragraph 50 above). The Court has already noted that the applicant ’ s crimes caused strains with his former colleagues (see paragraph 17 above). It therefore inclines to the view that the reasons given by the domestic courts can be regarded as relevant in terms of the legitimate aims pursued (see paragraphs 28, 29 and 31 above).", "78. Examining further, the Court does not fail to observe that the applicant ’ s prior conviction and the nature and scope of his crimes was only one of the grounds to hold that he lacked high moral character. The Bar Association, the Court of Honour and the civil courts also noted that a person who wished to become an advocate had an obligation to cooperate honestly and fully with the Bar Association and to disclose all relevant information, which the applicant had failed to do (see paragraphs 15, 16, 21, 25 and 29 above). Notwithstanding the absence of an explicit, written requirement to indicate previous, even expired, conviction when applying to the Bar, the Court does not find it unreasonable that the domestic authorities should conclude that such an obligation flowed from notions of honesty and ethics and the idea that the relationship between an advocate and the Bar Association must be based on mutual respect and good - will assistance (see paragraphs 21, 25 and 29 above). Likewise, the Court shares the Court of Honour ’ s conclusion that the applicant should have understood the significance of such information for his application and therefore the need to provide it to the Bar Association when his aptness for the Bar was being considered (see paragraph 21 above). In that connection, the Court also reiterates that professional associations of lawyers play a fundamental role in ensuring the protection of human rights and must therefore be able to act independently (see paragraph 49 above), and that respect towards professional colleagues and self-regulation of the legal profession are paramount (see paragraph 50 above). It is plain that the Bar Association could never perform that self - regulation function effectively if it was deprived of full information about a person wishing to become an advocate.", "79. The Court also notes that neither the Court of Honour, nor any civil court ever stated that the applicant was permanently barred from becoming an advocate. Indeed, it transpires from Article 8 of the Law on the Bar as it stands today (see paragraph 36 above), as well as from the Supreme Court ’ s case-law (see paragraph 46 above), that the applicant in principle remains free to prove, with time, that he has restored his reputation. The applicant ’ s contention that the domestic courts held that he could never hold a position as trainee advocate for lack of high moral character (see paragraph 63 above) is therefore devoid of any basis. Neither has the applicant claimed that after the Supreme Court ’ s decision in his case in 2009 he again approached the Bar Association to become an advocate because his reputation had improved. The Court therefore is satisfied that in the present case the domestic courts carried out a careful analysis and sought to strike a balance between the protection of the applicant ’ s private life and the need to protect the rights of others and the justice system as a whole.", "80. The applicant also contended before the domestic courts and before the Court that the requirement on him to be of good name was too high when compared with representatives of other legal professions and other lawyers (see paragraphs 26 and 62 above ). However, the Court cannot but note the statement of the president of the Court of Honour that those other lawyers, unlike the applicant, had not hidden a previous conviction from the Bar Association (see paragraph 26 above). As to the reputational requirements applicable to bailiffs or civil servants, an argument explicitly relied on by the applicant during the domestic proceedings (see paragraphs 22 and 26 above), the Court observes that the requirements on reputation applied to them were somewhat comparable to those applied to advocates because the severity and nature of the crime, or expiry of the conviction, determined whether a person could be held as being morally fit to take up those jobs (see paragraphs 41 and 42 above). Moreover, Lithuania ’ s reputation - related restrictions on judges and prosecutors were at the relevant time even stricter than those applicable to advocates. In particular, a person who had been convicted of any crime, irrespective of its seriousness or whether it was intentional or due to negligence, could not become a judge or prosecutor (see paragraphs 39 and 40 above).", "81. Lastly, the Court turns to the applicant ’ s argument about bias on the part of the President of the Court of Honour. The applicant was able to put that complaint to the civil courts, which examined and dismissed it as unfounded (see paragraphs 23 and 27 above). The Court finds that the applicant therefore had the possibility to have the Bar Association ’ s findings to be reviewed by the civil courts, an independent and impartial judicial authority (see paragraph 49 above ). There is nothing in the procedure followed by those courts that would lead this Court to a conclusion that the applicant was deprived of an opportunity to prove his complaints under Article 8 and/or the that decision-making process leading to measures interfering with his Article 8 rights was unfair (see, mutatis mutandis, McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307 - B).", "82. In these circumstances, the Court considers that the interference with the applicant ’ s right to respect for his professional activity, as part of his private life, did not exceed what was “necessary in a democratic society” for pursuing the legitimate aim of protecting the rights of others by ensuring the good and proper functioning of the justice system.", "(c) Conclusion", "83. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 8 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Introduction", "5. The applicant was born in 1958 and lives in Oslo. She is a well-known lawyer who mainly deals with criminal and child custody cases. She is married to a businessman and was formerly a talk show host and active participant in public debate.", "6. In August and September 2010 the applicant lodged two complaints with the Press Complaints Commission ( Pressens Faglige Utvalg ) against two publications owned and controlled by Mr Trygve Hegnar: the weekly and daily business newspapers Kapital and Finansavisen. Mr Hegnar also owned and controlled the internet portal Hegnar Online, which focused mainly on business and financial news.", "7. All three publications had, from late summer 2010, published articles concerning the applicant’s role and relationship with a wealthy, elderly widow from whom she would inherit. The publications contained direct or indirect suggestions that the applicant had exploited her emotionally or financially. After the widow passed away in 2011, her relatives instituted proceedings against the applicant, challenging the validity of her will. The inheritance case, which the applicant won both at first and second instance (in 2012 and 2014 respectively), was covered extensively in the above publications.", "8. The Hegnar Online website featured a forum – at a separate web address, but to which access was given via the online newspaper – where readers could start debates and submit comments. There was no editorial content in the forum; all content was user-generated. It was possible for users to comment anonymously and there was no requirement to register. More than 200,000 comments were posted every month and the debate forum was among the biggest of its kind in Norway. The forum was divided into many subforums, with topic headings such as “Shipping”, “IT”, “Finance”, “Property”, “Media” and “Theme of the day” ( “Dagens tema” ).", "9. On 5 November 2010 a forum thread was started in the subforum “Theme of the day” under the heading “Mona Høiness – the case is growing, according to Kapital” ( “Mona Høiness – saken vokser, sier Kapital” ), where the original poster wrote only “What is the status?” ( “Hva er status? ”). The next comment, posted the same day, read “Sexy lady. What is the case about ???” ( “Sexy dame. Hva gjelder saken ???” ), to which another commenter responded “Money.” At 12.32 p.m. the following day another comment was made, in which the poster claimed to “know someone who knows someone” who had been “lucky to have shagged” the applicant ( “Sexy hun da! Kjenner en som kjenner en som knulla henne. Heldiggris” – hereinafter “comment 1”).", "The thread continued the same day with a commenter writing: “status quo” and “ab absurdo”. The following comment was made the next day: “I read about this case briefly several weeks ago. I now see that Kapital gives it the front page. The conflict relates to an apartment at Frogner + wealthy old lady with whom Høiness has developed a mother-daughter relationship over many years.” ( “Leste om denne saken såvidt, for flere uker siden. Ser nå at Kapital gir den forsiden. Striden gjelder en leilighet på Frogner + velstående eldre dame som Høiness har utviklet et mor/datter-forhold til over mange år.” )", "The next comment read: “Is it Kapital’s Case [( “Saken til Kapital” )] which is growing?”, to which another commenter responded with the wordplay: “It is Hegnar’s thing [( “saken til Hegnar” )] which is growing.” This was followed by the comment “If you are looking for pretty ladies, look at the thread ‘Pride of the nation’”, to which another poster added: “And that about the Marilyn-revelation”.", "The next day, on 8 November 2010, a new comment was made: “With 100 million at stake it is clear that one would bend the ethical rules a little” ( “Med 100 mill i potten er det klart du tøyer de etiske reglene litt” ), before another poster asked: “Has she become pregnant, or is she only gaining weight?”, and yet another poster followed with the above wordplay: “Is Hegnar’s stake [( “staken til Hegnar” )] still growing?”. At 5.55 p.m. another commenter wrote: “If I were to s–– her, it would have to be blindfolded. The woman is dirt-ugly – looks like a wh––“ ( “Skulle jeg k–– henne måtte det bli med bind for øya. Synes dama er dritstygg – ser ut som en h––” – hereinafter “comment 2”). Thereafter a poster asked: “How old is she now?”, to which the last commenter responded: “She’s 83 by now [( “etter hvert” )]. Time flies!”", "All the comments were made anonymously and thus the number of possible different posters was unknown. According to a printout made at 7.26 p.m. on 8 November 2010, comment 1 had by then been read 176 times, while comment 2 had been read twelve times.", "10. The same day, 8 November 2010, the applicant’s counsel wrote a letter to the Press Complaints Commission, in the course of the proceedings concerning one of the above-mentioned complaints in respect of the coverage of the inheritance case (see paragraph 7 above). The counsel stated, inter alia, that a new report had been published in Kapital and that the case had been chosen as the “Theme of the day” on Hegnar Online. In particular, Hegnar “allowed the posters to present serious and degrading sexual harassment” of the applicant. In the letter, it was expressly stated that this was not to be made part of the existing complaint against Kapital, so as not to further delay the handling of that complaint by the publisher. A copy of the printout of the forum thread in question was attached (see paragraph 9 above).", "11. Mr Hegnar received a copy of the letter and in an email to the Press Complaints Commission on 9 November 2010 stated, inter alia, that Hegnar Online was a separate newspaper with its own editor, unrelated to Kapital. He submitted that it could not therefore be taken into account in a complaint against the latter. The Commission wrote an email to both parties the following day stating that it – having spoken with the applicant’s counsel – noted that the letter of 8 November 2010 did not amount to a new complaint, but was an appendix to the documents in the pending case against Kapital and did not relate to Hegnar Online.", "12. Comments nos. 1 and 2 were not deleted. The applicant’s counsel sent an email at 12.32 p.m. on 17 November 2010 to Mr B. and Mr H., an editor working for Hegnar Online, requesting written confirmation that the comments would be deleted immediately and arguing that Mr Hegnar himself had “declined all responsibility for the matter” (“ fraskrev seg alt ansvar for saken ”).", "13. Mr B. from Hegnar Online responded at 12.45 p.m. the same day, saying that he was sorry that comments in breach of their guidelines had not been deleted, and that he had now deleted the comments he had found.", "14. On 19 November 2010 Mr Hegnar wrote an editorial in Kapital commenting on the applicant’s remarks on the forum comments in the context of the complaint against Kapital (see paragraph 10 above). In the editorial, he stated that Hegnar Online was unrelated to Kapital and, furthermore, that Kapital would not take responsibility for what eager commenters wrote on Hegnar Online, which he described as “an open forum”. The editorial read, inter alia, as follows:", "“... Many strange, annoying and plainly wrong things are written on such open websites, where there is subsequent control and no editorial treatment prior to publishing.", "Also we ourselves must, at times, endure harsh comments (“ tåle røff omtale ”) on such websites, but we cannot rush off to the Press Complaints Commission with it.”", "15. On 23 November 2010 the Press Complaints Commission examined the applicant’s complaints against Kapital and Finansavisen (see paragraph 6 above), and found that both publications had breached the code of conduct for journalists ( Vær varsom-plakaten ): Kapital for their use of a misleading headline (case no. 187/10) and Finansavisen for not giving the applicant the opportunity to reply simultaneously (case no. 192/10).", "16. On 28 November 2010 a forum thread was started on the subforum “Media”. The thread starter, under the headline “Mona Høiness vs Trygve Hegnar”, commented on the inheritance case and the applicant’s allegation that she was being sexually harassed (see paragraphs 7 and 10 above). The next posting in the thread, made the same day, said only: “Ask if Mona knows trønderbjørn? :))” ( “Spør om Mona kjenner trønderbjørn? :))” )", "On 30 November 2010 the next poster commented: “some have a passion for popstars and football players, while others like to hang around centres for the elderly and old people’s homes”, before another wrote: “are you old, ill and confused? The law firm MH takes the case. NB! Pre-payment only”. At 11.02 a.m. the same day a comment raising the question whether the applicant was “still shagging” someone referred to by the nickname “ trønderbjørn ” (see paragraph 27 below) ( “Driver hun fortsatt å knuller på denne trønderbjørn?”  hereinafter “comment 3”) was posted.", "On 1 December 2010 a poster wrote: “saw a woman sneak out of borgen kremat. [(a crematorium in Oslo)] with two handbags filled with golden jewellery and wallets. She smiled knowingly ... [( “smilte lurt” )]”.", "All the comments in the thread were made anonymously.", "17. On 3 December 2010 an editor at a radio station ( Radio Norge ) drew the applicant’s counsel’s attention to the debate that had been started on the Hegnar Online forum on 28 November 2010 (see paragraph 16 above) and enclosed a copy of the relevant thread in an email. From that it emerged that comment 3 had by then been read 115 times.", "18. On 6 December 2010 the applicant’s legal counsel wrote to Mr H., attaching the email from the editor at the radio station and demanding confirmation that harassing comments in the “Media” subforum would be deleted immediately. In an email the same day Mr H. replied that he had also been contacted by the radio editor directly on 3 December 2010 and, on checking, had seen that the comments had by then already been deleted.", "19. On 7 January 2011 a complaint concerning the two forum threads as a whole (see paragraphs 9 and 16 above) was lodged with the Press Complaints Commission. On 22 February 2011 it concluded in general terms that neither comments with sexual content nor comments that accused the applicant of unethical or unlawful behaviour in the inheritance case were in compliance with the code of conduct for journalists, and that the editors should accordingly have removed them immediately, pursuant to a provision in that code (case no. 002/11).", "20. On 7 April 2011 the applicant’s counsel sent a letter to Hegnar Online stating the applicant’s intention to instigate civil proceedings against Hegnar Online and the editor, Mr H., because comments 1 to 3 had been defamatory and contrary to Article 246 of the Penal Code (see paragraph 43 below). For the defamation she would claim redress under section 3-6 of the Compensation Act (see paragraph 44 below), of amounts limited to 250,000 Norwegian kroner (NOK - today approximately 25,000 euros (EUR)) from the company Hegnar Online and NOK 25,000 (approximately EUR 2,500) from Mr H. personally.", "The applicant’s counsel argued that comments 1 to 3 had constituted sexual harassment beyond what a publicly known person had to endure and that it was settled law that such derogatory comments, discriminatory to women, were not protected by Article 10 of the Convention under any circumstances. Reference was made to the case of Tammer v. Estonia (no. 41205/98, ECHR 2001 ‑ I).", "21. Hegnar Online and Mr H.’s counsel responded in a letter of 28 April 2011. The counsel stated that the company Hegnar Media AS, into which Hegnar Online had by then been incorporated, had a procedure that made it simple to complain about forum comments that anyone might consider inappropriate. Next to each post was a link which could be clicked on in order to warn the company (“warning button”). When the company received such complaints, this usually led to deletion of the comment. Between 1,800 and 2,000 comments per month were deleted on the basis of such complaints. In addition, the company had moderators who on their own initiative removed comments in breach of the forum guidelines. Comments 1 and 2 had been removed immediately – within eight minutes of the applicant’s complaint – and comment 3 had been removed on the initiative of a moderator.", "In the letter it was further stated that Hegnar Media AS apologised for three of its users having made comments with sexual content, directed at the applicant, but that it did not consider itself liable to pay compensation. The three comments had had nothing to do with the company’s journalistic work or editorial responsibility; they had not been uttered or produced by the company, nor had it authorised them for publication. Furthermore, the comments in question had not been defamatory and had been removed as soon as the company had become aware of them. Although the company did not consider itself legally liable, it offered the applicant NOK 10,000 (today approximately EUR 1,000) for the inconvenience she had suffered because of the comments.", "B. Proceedings before the City Court", "22. On 4 May 2011 the applicant instigated civil proceedings before the Oslo City Court ( tingrett ) against Hegnar Media AS and the editor, Mr H., for defamation. As previously stated in the letter to Hegnar Online (see paragraph 20 above), she claimed that her honour had been infringed because of comments 1 to 3 and that she was therefore entitled to redress. She maintained, inter alia, that the conclusion of the Press Complaints Commission (see paragraph 19 above) supported her argument that the defendants had exactly the same editorial responsibility for the comments as if they had been letters from readers printed in a newspaper.", "23. The City Court heard the case from 19 to 20 December 2011. The parties attended with their counsel and one witness was heard. During the proceedings the applicant invoked Articles 246 and 247 of the Penal Code (see paragraph 43 below), in conjunction with section 3-6 of the Compensation Act (see paragraph 44 below). The defendants argued principally that the situation at hand was governed by section 18 of the E-Commerce Act (see paragraph 45 below). They also maintained that Articles 246 and 247 of the Penal Code were inapplicable since they required intent ( forsett ) on the part of the wrongdoer. In the case at hand the defendants had not even been aware of the comments in question, and the principles relating to editorial responsibility were in any event irrelevant. In any case, editorial responsibility could not apply to the situation before the editor had become aware of the comments, and in the instant case they had been removed as soon as Mr H. had become aware of them.", "24. On 4 January 2012 the Oslo City Court ruled in favour of the defendants. It considered that the three comments had not amounted to unlawful defamation as they had been incapable of offending either the applicant’s honour or reputation.", "25. As to comment 1, the City Court noted that the comment had been tasteless and vulgar, but had not in itself been an accusation ( beskyldning ) of promiscuity or some sort of immoral behaviour. In the City Court’s view, it could not harm the applicant’s reputation ( omdømme ) under Article 247 of the Penal Code (see paragraph 43 below). Furthermore, it had not expressed disdain or disapproval of her, so could not harm her honour ( æresfølelse ) under Article 246 of the Penal Code (ibid.).", "26. With respect to comment 2, the City Court again found that it had been tasteless and “unserious”. An anonymous comment of this sort could not, however, harm the applicant’s reputation or honour. It might be considered to be ridicule, but had not exceeded the threshold over which ridicule would be unlawful. The City Court also had regard to the fact that “Theme of the day” was a marginal forum frequented mostly by anonymous people. It was generally unserious and, according to the City Court, most readers would find that the comments said more about those posting them than about the people mentioned in the comments. The City Court expressed that it completely understood that the applicant found it unpleasant that anonymous persons had posted “sleazy” remarks about her on the Internet. However, based on an overall assessment, the City Court concluded that comment 2, either alone or in conjunction with comment 1, had not been capable of harming the applicant’s honour.", "27. Turning to comment 3, the City Court said that this was again a comment that most people would consider inappropriate, tasteless and vulgar. It had to be interpreted as an allegation that the applicant had had a sexual relationship with a person nicknamed trønderbjørn. No further information about who or what kind of person that might be had been given either in the forum or during the civil case. The court found that an anonymous comment indicating that the applicant had had a sexual relationship with an unidentified person could not harm the applicant’s reputation or honour. There had been nothing expressly negative in the comment. Moreover, since the writer had been anonymous there had been no reason to take him or her seriously.", "28. The City Court also made an overall assessment of the three comments viewed as a whole, but found that they still had not amounted to unlawful defamation. It remarked that several of the other comments in the forum threads in question, that the applicant had not complained about, could possibly be defamatory, as had also been indicated by the defendants briefly during the hearing, but since the applicant had not complained about any other comments, the City Court could not decide on their lawfulness.", "29. The applicant was ordered to pay the defendants’ litigation costs of 225,480 Norwegian kroner (NOK - approximately 24,650 euros (EUR)). The City Court stated that it was in no doubt as to the result of the case and noted that the applicant had turned down the defendant’s offer of settlement (see paragraph 21 above). The defendants had claimed NOK 290,880 (approximately EUR 30,615), an amount which the City Court considered exceeded what was reasonable and necessary under the relevant provisions of the Dispute Act (see paragraph 47 below).", "C. Proceedings before the High Court", "30. On 31 January 2012 the applicant appealed against the City Court’s judgment to the Borgarting High Court ( lagmannsrett ). Apart from maintaining that the three statements (comments 1 to 3) had amounted to unlawful defamation, she submitted that her right to privacy ( privatlivets fred ) as enshrined in Article 390a of the Penal Code, and her rights under the general principles concerning the protection of personality ( det ulovfestede alminnelige rettsvern for personligheten ) had been breached. Moreover, she argued that the comments had been in breach of section 8a of the Gender Equality Act and that under section 17 of that Act compensation was payable (see paragraph 46 below). Lastly, she submitted that the defendants had been awarded an amount of litigation costs exceeding what had been necessary.", "31. The High Court heard the case on 10 and 11 September 2013. The parties attended and gave evidence, and one witness was heard. The judgment was delivered on 24 October 2013.", "32. The High Court stated at the outset of the judgment that there had been an extensive coverage of the inheritance case both by the Hegnar Group and other media. The coverage had undoubtedly been a strain on the applicant, but was not the topic of the proceedings. It did however form a background to the case and explained why the applicant had come into the spotlight and subsequently been the topic of anonymous statements on the debate forum related to Hegnar Online.", "33. The High Court went on to state that it was of the view that the applicant had had good reason to react to the statements on the Hegnar Online forum. The statements had been unserious and sexually loaded. Accordingly, she had by way of a complaint to the Press Complaints Commission achieved a declaration that Hegnar Online had breached the code of conduct for journalists because the content of the forum threads had exceeded what she had had to accept and that Hegnar Online should on its own initiative have discovered and removed the comments more quickly than had happened.", "34. Turning to the question of liability to pay compensation, the High Court stated that this was a different question to that considered by the Press Complaints Commission. At this point the High Court had reached the same conclusion as the City Court had, but on different grounds. The City Court had considered each of the three comments in detail and concluded that, although inappropriate, unserious and tasteless ( “usaklige, useriøse og smakløse ”), they did not fall within the scope of Articles 246 and 247 of the Penal Code (see paragraphs 24-28 above and 43 below). The High Court stated that it shared the City Court’s view with regard to the lack of seriousness, but deemed it unnecessary to assess the three comments against the provisions on defamation.", "35. Instead, the High Court proceeded on the basis that the applicant’s claim for compensation could in any event not succeed unless the defendants had acted with sufficient culpability. It would be decisive whether such culpability had been demonstrated by Hegnar Online and Mr H. not having done enough to discover and thereafter remove the impugned comments.", "36. The High Court further stated that one characteristic of posts on the type of debate forum in question, and also of comments on editorial content posted online, was that they were posted in real time without any prior censorship being possible. This meant that controls needed to be carried out subsequently, regardless of whether it concerned content subject to editorial responsibility or a website with only user-generated content.", "37. With regard to the general system for monitoring content, the High Court noted that there were “warning buttons” on the website, which readers could click on in order to react to comments. Furthermore, the editorial staff had the task of monitoring content and removing comments on their own initiative. However, there were a very large number of posts on the forum as a whole, and the High Court presumed that only a few discoveries of content to be removed had been made at the relevant time.", "38. Turning to the three specific comments in question, the High Court noted that comments 1 and 2 had been posted on 6 and 8 November 2010 respectively. The applicant had been notified by others of the comments, and had not read them herself on the website. The editorial staff had been notified of the two comments by email on 17 November 2010, and had responded thirteen minutes later that they had been removed. This had clearly been an adequate reaction. However, the High Court discussed whether the letter from the applicant’s counsel to the Press Complaints Commission on 8 November 2010 (see paragraph 10 above) implied that Mr Hegnar should have initiated a deletion process at that time. Having regard to the fact that the letter was formally made in a different context, namely the pending complaint against Kapital (see paragraph 6 above), and did not contain any request that the comments be removed, the High Court found it appropriate that Mr Hegnar had only considered the letter as a document in the Kapital case.", "39. With respect to comment 3, this had been posted on 30 November 2010. On 3 December 2010 staff at Radio Norge had informed the applicant’s counsel, who had contacted Hegnar Online on 6 December 2010. Hegnar Online had by then already looked into the matter, as it had received a similar notification from Radio Norge on 3 December 2010, and had on that date noticed that the comment had already been deleted, presumably by a moderator at Hegnar Online. As this comment had, thus, rapidly been deleted of the staff’s own motion, there was nothing to suggest liability on the part of Hegnar Online.", "40. The High Court upheld the City Court’s decision on litigation costs before the City Court and awarded the defendants NOK 183,380 (approximately EUR 20,050) for their costs before the High Court. It remarked that the case had been clear and that neither considerations on the parties’ welfare nor relative strength (see paragraph 47 below) could justify not awarding the winning party costs. The defendants had claimed NOK 231,980 (approximately EUR 24,416), but the High Court found that as their counsel charged a high hourly rate, appropriate for a specialist lawyer, this should have been reflected in a lower amount of hours.", "D. Proceedings before the Supreme Court", "41. On 22 November 2013 the applicant appealed against the High Court’s judgment to the Supreme Court ( Høyesterett ). She contested the High Court’s assessment that the defendants had acted with sufficient care and alleged that the High Court had erred in law as its reasoning had not been clear with respect to the standard of care required, notably whether it had proceeded on the basis that negligence would suffice for liability, or whether the establishment of gross negligence had been necessary. She also contested the High Court’s assessment of evidence concerning Mr Hegnar’s dealing with the letter of 8 November 2010 addressed to the Press Complaints Commission. The applicant pointed out that Mr Hegnar had written an editorial in Kapital on 19 November 2010, making remarks about how the applicant had complained about comments on the forum (see paragraph 14 above). Furthermore, the applicant argued that the High Court had wrongfully proceeded on the basis that the standards for the moderation of websites with user-generated content had been more lenient in 2010 than at the time of the High Court’s judgment. Lastly, she appealed against the High Court’s decision on litigation costs. The defendant’s counsel charged an hourly rate of up to NOK 3,900 (approximately EUR 410), which was so high that there would be a chilling effect on individuals’ willingness to challenge violations of Article 8 of the Convention.", "42. On 7 February 2014 the Supreme Court’s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicant leave to appeal against either the High Court’s judgment as a whole or against its decision on legal costs." ]

[ "II. RELEVANT DOMESTIC LAW", "43. The relevant provisions of the Penal Code of 22 May 1902 ( straffeloven ), in force at the relevant time, provided as follows:", "Article 246", "“Any person who by words or deeds unlawfully defames another person, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to six months.”", "Article 247", "“Any person who by words or deeds behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt or loss of the trust necessary for his position or business, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for up to two years may be imposed.”", "A limitation to the applicability of Article 247 arose from the requirement that the expression had to be unlawful ( rettsstridig ). While this was expressly stated in Article 246, Article 247 had been interpreted by the Supreme Court to include such a requirement.", "Article 390a", "“Any person who by frightening or annoying behaviour or other inconsiderate conduct violates another person’s right to privacy, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to two years. ...”", "44. Section 3-6 of the Compensation Act of 13 June 1969 ( skadeserstatningsloven ) reads:", "“Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions for imposing a punishment are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non-pecuniary damage as the court finds reasonable.", "If the offence takes the form of libel, and anybody who has acted in the service of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher shall also be liable to compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court for special reasons decides to exempt them. The owner or publisher may also be ordered to pay such additional redress as the court finds reasonable in respect of them. The Norwegian Broadcasting Corporation is similarly liable when anybody acting in its service is responsible under the preceding paragraph for a broadcast. The same rule applies to any other broadcasting institution.", "In pronouncing a judgment which imposes a punishment or declares a statement void, the court may order the defendant to pay the victim an amount covering the costs of publishing the judgment. The same rule applies in the case of any conviction under § 130 of the General Civil Penal Code. ...”", "45. Section 18 of the E-Commerce Act of 23 May 2003 ( ehandelsloven ) reads:", "Section 18", "Exemption from liability for certain storage services", "“A service provider who stores information at the request of a service recipient, may only", "(a) be punished for storing unlawful information or contribution to unlawful activities by storing unlawful information if he has acted with intent, or", "(b) be held liable to pay compensation for storing unlawful information or contribution to unlawful activities by storing unlawful information if he has acted with intent or gross negligence.", "The service provider is in any event exempt from criminal or civil liability if he without undue delay takes necessary measures to remove or block access to the information upon the intent or gross negligence under the first paragraph having appeared.", "A service provider is not exempt from liability pursuant to this section if the service recipient is acting on behalf of the service provider or under his control.”", "46. The two first paragraphs of section 8a of the Gender Equality Act of 9 June 1978 ( likestillingsloven ), in force at the relevant time, provided:", "Section 8a (Harassment on the basis of gender and sexual harassment)", "“Harassment on the basis of gender and sexual harassment is not permitted.", "‘Harassment on the basis of gender’ means unwanted behaviour connected to a person’s gender and which has the effect or as purpose to harm another person’s dignity. ‘Sexual harassment’ means unwanted sexual attention that is troublesome to the person receiving the attention.”", "Pursuant to the second paragraph of section 17, the general rules on civil liability applied to intentional or negligent infringements of the Gender Equality Act.", "47. The relevant sections of the Dispute Act of 17 June 2005 ( tvisteloven ) read:", "Section 20-2 Award of costs to the successful party", "“(1) A party who is successful in an action is entitled to full compensation for his legal costs from the opposing party. ...", "(3) The court may exempt the opposing party from liability for legal costs in whole or in part if the court finds that there are compelling grounds to justify an exemption. The court shall, in particular, have regard to:", "(a) whether there was justifiable cause to have the case heard because the case was uncertain or because the evidence was clarified only after the action was brought,", "(b) whether the successful party can be reproached for bringing the action or whether he has rejected a reasonable offer of settlement, or", "(c) whether the case is important to the welfare of the party and the relative strength of the parties justifies an exemption.”", "Section 20-5", "Assessment of compensation for costs", "“(1) Full compensation for costs shall cover all necessary costs incurred by the party in relation to the action, unless there is cause to exclude the costs pursuant to special provisions. In assessing whether costs have been necessary, the court shall have regard to whether it was reasonable to incur them in view of the importance of the case. The party may claim reasonable remuneration for his own work on the case if the work has been particularly extensive or would otherwise have had to be undertaken by counsel or another qualified assistant. ...", "(3) In cases that are decided following an oral hearing, a party who claims costs shall submit a statement of costs. The statement shall be submitted at the conclusion of the court hearing. If the amount of some items is unknown, the statement shall be supplemented within the time-limit fixed by the court. Items of expenditure shall be specified so as to give the court an adequate basis upon which to make an assessment. Lawyers’ fees shall always state the amount and number of hours related to the following stages of the case:", "(a) the period up to the submission of a writ of summons or reply, alternatively notice of appeal and reply to notice of appeal,", "(b) the period up to the start of the main hearing or oral finalisation of the case, alternatively the appeal hearing, and", "(c) the period up to the conclusion of the case at the current instance. ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "48. The applicant complained that the domestic authorities, by not sufficiently protecting her right to respect for her private life and requiring her to pay litigation costs to the extent seen in her case, had acted contrary to Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "49. The Government contested that argument.", "A. Admissibility", "50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant", "51. The applicant submitted that the comments in question had clearly been unlawful and that the domestic courts had not undertaken the exercise of balancing the rights protected by Articles 8 and 10, respectively.", "52. The applicant acknowledged that the inheritance case had been in the public interest, but argued that the articles published by Hegnar Online and the two other publications had not been balanced. Reference was made to the statement by the Press Complaints Commission to the effect that Kapital and Finansavisen had breached the code of conduct for journalists.", "53. Although Hegnar Online had established a system with a “warning button” and some members of staff had been tasked with monitoring content on the forum, this had clearly been insufficient. The system had been incapable of handling the large amount of comments posted on it.", "54. The applicant had not been in any position to identify the anonymous commenters; she would have needed to contact the police and report the incidents, but even then the discovery of their identity would not have been guaranteed.", "55. Recognising that liability for third-party comments might have some negative consequences for freedom of expression on the Internet, the applicant maintained that the website in the present case was one of the biggest platforms and debate forums in Norway and that liability would not have any significant negative impact.", "56. The requirement for the applicant to pay the defendants’ legal costs of approximately EUR 49,964 (including interest) in the domestic proceedings formed a separate reason why there had been a breach of Article 8 of the Convention.", "(b) The Government", "57. The Government argued that the comments in question had not attained such a level of seriousness or been carried out in such a manner as to have caused prejudice to the personal enjoyment of the right to respect for private life.", "58. The media coverage of the inheritance case had formed the background for the instant case and the applicant was, inter alia, a well ‑ known lawyer, a former talk show host and had previously been active in public debate. The City Court’s assessment of the context of the comments had been in line with the European Court of Human Rights’ case ‑ law in respect of Article 8 of the Convention.", "59. The High Court had examined the measures applied by the defendants in the domestic proceedings in order to prevent or remove the defamatory comments, and had assessed those measures in a manner consistent with the criteria developed by the Court.", "60. The Government did not dispute that the impugned comments had been made by anonymous posters and that there had not, at the time, been a system for registering users. The applicant had not taken any steps to discover the identities of the posters.", "61. The Court’s assessment in the case of Pihl v. Sweden ((dec.), no. 74742/14, 7 February 2017) and the similarities to that case weighed clearly in favour of the overall conclusion that there had been no violation in the instant case.", "62. With respect to the litigation costs, the Government submitted that Article 6 § 1 of the Convention was lex specialis and that Article 8 could therefore not come into play. The case of MGN Limited v. the United Kingdom (no. 39401/04, 18 January 2011) was factually different and concerned Article 10; its rationale could not be applied to Article 8. The domestic courts had performed a balancing act in accordance with the Dispute Act which had been in line with the obligation to secure access to the courts and which had not disclosed any unreasonable lack of proportionality between the aims pursued and the means employed.", "2. The Court’s considerations", "63. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity (see, for instance, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, ECHR 2017). It has also been accepted by the Court that a person’s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life (see Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016, with further references).", "64. In order for Article 8 of the Convention to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015; and Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018).", "65. The Court observes that what is at issue in the present case is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant’s private life. While the essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may also involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 98-99, ECHR 2012).", "66. In this respect, as concerns competing interests under Article 8 and Article 10 of the Convention, the Court has established the following general principles, as summarised in Delfi AS, cited above, § 139:", "“The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).”", "67. In making this proportionality assessment, the Court has also identified the following specific aspects of freedom of expression as being relevant for the concrete assessment of the interference in question: the context of the comments, the measures applied by the company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the company (see Delfi AS, cited above, §§ 142-143 and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 69, 2 February 2016).", "68. The question is thus whether, in the present case, the State has struck a fair balance between the applicant’s right to respect for her private life under Article 8 and the online news agency and forum host’s right to freedom of expression guaranteed by Article 10 of the Convention.", "69. In this connection, the Court notes at the outset that the comments made about the applicant were found by the City Court not to constitute defamation under Articles 246 or 247 of the Penal Code (see paragraph 43 above), while the High Court deemed it unnecessary to take a stand on whether the comments were defamatory. The Court also considers that it is not necessary to examine in depth the nature of the impugned comments, as they in any event did not amount to hate speech or incitement to violence (contrast Delfi AS, cited above, §§ 18, 114 and 162; compare Pihl, cited above, §§ 23-25).", "70. Turning to the possibilities for the applicant to pursue claims against the anonymous individual or individuals who had written the comments, the Court sees no reason to contest the applicant’s allegation that she would have faced considerable obstacles in attempting to do so.", "71. As to the context in which the comments were made, the Court takes account of the fact that Hegnar Online was a large, commercially run news portal and that the debate forums were popular. It does not appear, however, from the judgments of the domestic courts that the debate forums were particularly integrated in the presentation of news and thus could be taken to be a continuation of the editorial articles.", "72. With respect to the measures adopted by Hegnar Online, it appears that there was an established system of moderators who monitored content, although it is stated in the High Court’s judgment that they may not have discovered a great number of unlawful comments to remove of their own motion. Moreover, readers could click on “warning” buttons in order to notify their reaction to comments (see paragraph 37 above). Lastly, it appears from the present case that a response was also given to warnings by other means, such as email.", "73. In the instant case, “comment 1” and “comment 2” had not been picked up by the moderators, but on 17 November 2017, thirteen minutes after having notified them, the applicant’s counsel received an email stating that the comments had been deleted (compare Pihl, cited above, § 32, about removal of an unlawful comment one day after notification had been given). The comments had been online since 6 and 8 November 2010, respectively. “Comment 3”, posted on 30 November 2010, had been deleted on the moderator’s own initiative before receipt of the notification on 3 December 2010. Based on an overall assessment, the High Court found it irrelevant that the comments had been mentioned in a letter to the Press Complaints Committee and that it had in that way become known to the chairman of Hegnar Online that the applicant had reacted to comments that she found to constitute sexual harassment. Upon an overall examination and assessment of the measures that had been put in place in order to monitor the forum comments – hereunder taking account of the control being only subsequent and that the commentators did not have to register – and the specific responses to the applicant’s notifications, the High Court found that the news portal company and its editor had acted appropriately (see paragraphs 36-39 above).", "74. The Court observes that the applicant’s case was considered on its merits by two judicial instances at the domestic level before the Supreme Court refused leave to appeal (compare Pihl, cited above, § 36). The domestic courts reviewed the relevant aspects of the case (see paragraph 67 above). In line with the principles set out in Delfi AS, cited above, § 139 (see paragraph 66 above), there are no reasons for the Court to substitute a different view for that of the domestic courts.", "75. In view of the above, the Court finds that the domestic courts acted within their margin of appreciation when seeking to establish a balance between the applicant’s rights under Article 8 and the news portal and host of the debate forums’ opposing right to freedom of expression under Article 10.", "76. With respect to the complaint about the compensation for litigation costs awarded, the Court observes that the expenses did not involve any success fees or similar constructions. The case was tried in full before two court instances and both instances conscientiously reviewed, and considerably reduced, the extent of the compensable costs (see paragraphs 29 and 40 above). In the circumstances of the case, the domestic courts found that there were no reasons to deviate from the starting point that the winning party be awarded compensation for their fees and expenses.", "77. While regard must be had to the general level of expenses in the jurisdiction (see, for example, AS Dagbladet v. Norway (dec.), no. 60715/14, § 33, 20 February 2018, and Avisa Nordland AS v. Norway (dec.), no. 30563/15, § 48, 20 February 2018), the Court notes the considerable amount of costs imposed on the applicant. However, taking account of the nature of the claim lodged before the national courts and the subject matter, the Court does not consider that it in the instant case can call into question the domestic courts’ assessment as to the imposition of costs, also in view of the High Court’s examination of the “parties’ welfare” and their “relative strength” (see paragraph 40 above). Against that background, the Court does not need to address the Government’s argument that Article 6 § 1 is lex specialis, as it is in any event satisfied that the domestic courts sufficiently safeguarded the applicant’s rights under Article 8 and that there has been no violation of that provision." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1949 and lives in Craiova. He was, at the time of the events, a lecturer at Craiova University.", "A. Content of the disputed article", "6. On 8 September 2001 the local newspaper Republica Oltenia published an article entitled “ Feature story on sex-blackmail professor ” (“ Poveste de lung metraj cu un professor de sex- şantaj ”). The article, written by R.C., was illustrated by two photographs showing a man and a woman naked and having sex. The man ’ s face was not visible. On the photographs were the handwritten words “the man in the photos is Ion Cârstea, university as.[ sistant ] at the electrotechnical faculty”. One of the photographs also appeared at the top of the front page of the newspaper.", "7. The article started by mentioning that the man in the photographs was a university professor, an important person in society, who was involved in bribery, blackmail, child sex abuse and sexual deviance, the details of which would be given in the article.", "8. The article continued by stating that in 1992 the applicant ’ s students had complained to the university dean that he was not very friendly during sessions and used to demand money from them. The applicant was also branded as litigious, because he had three trials pending before the courts, two of them brought with the purpose of contesting decisions taken by his university superiors.", "9. Further on, the article contained the following statements :", "Sex pervert, criminal, blackmailer", "In 1982 a girl, so young that she was not even eighteen, got pregnant. Abortion being illegal, she decided to ask her second cousin, a university assistant at the time, to help her find a doctor. The cousin took advantage of the girl ’ s desperate situation. He might have told her that he would tell her mother if she did not let him “taste” her at least once. The atmosphere at the time may be inferred from the black and white photos attached. They were taken ... by the cousin himself. Apparently, even from a young age, Ion Cârstea had unorthodox habits. After satisfying his needs, Cârstea remembered that in fact he could not help his cousin, and advised her to sell some jewellery in order to raise money for a doctor. To develop the photos, Cârstea appealed to a repeat student and amateur photographer ... “In your fourth or fifth year you will have an exam with me and won ’ t pass” Cârstea said, according to the photographer. The student gave in to the blackmail, but after developing only gave Cârstea 24 photos instead of 36. The gesture had its logic, because in 1990, when our student managed to proceed to the fifth year, Cârstea tried to raise the stakes, by asking for a non-reimbursable loan of 130 [German] marks to pass an exam. The student was upset and went to the prosecutor ’ s office: “I made a complaint to the prosecutor ’ s office in [19] 90, accusing him of blackmail. I submitted the relevant evidence, namely the first [set of] photos, because he later came to me with six more films, also porn ... the prosecutor said that we were dealing with a university professor and should leave him alone, not amplify the case.", "Wax in the ears at the dean ’ s office", "Why not amplify the case? We ’ ll tell you: because between Cârstea and M.I., the University dean, there is a special relationship, which might also be based on blackmail ... We know that [M.]I. sold Cârstea a flat, but this doesn ’ t say much. That would be another case of blackmail, because we heard that Cârstea ’ s obsession with audio-video recordings remained unchanged ... As for the prosecutors who received a complaint from the blackmailed photographer, they were in no hurry to go to talk to the girl in the photos. That would have obliged them to open an investigation ex officio. Instead they sent the victim, the photographer-student, to take statements. And he obtained a statement signed by the girl ’ s mother, while the actress in the photos wrote on them “The man in the photo is Ion Cârstea, university as. [ sistant ] at the electrotechnical faculty. ”", "Hello non-indictment!", "Of course such evidence obtained under these circumstances had no legal relevance. The case would normally be greeted with a gracious non-indictment. ... Our photographer can hardly wait for justice to be done and to finish his studies now, twelve years after he proceeded to the fifth year.”", "B. Criminal proceedings for defamation", "10. On 6 November 2001 the applicant lodged a criminal complaint with the Craiova District Court against the journalist R.C. and B.B.O., editor -in-chief of the newspaper, accusing them of defamation, an offence under Article 206 of the Criminal Code in force at the time. The applicant alleged that the facts described in the article were not true and that, together with the photographs, they had seriously damaged his reputation. In this connection, the applicant claimed from the two defendants 1 billion lei (RON ) for non-pecuniary damage and RON 500,000,000 for pecuniary damage. As to the compensation for pecuniary damage the applicant alleged that owing to the publication of the article and the photographs in question he could no longer be promoted to a higher position within the university.", "11. R.C. and B.B.O. did not appear before the court, although they had been summoned on several occasions.", "12. Two witnesses for the applicant were heard by the court. M.G. stated that as far as he knew the applicant, the facts described in the article in dispute were not true. P.T. made a statement in support of the compensation claimed by the applicant for pecuniary damage.", "13. On 27 June 2002 the Craiova District Court acquitted the two defendants. It decided that they had not intended to defame the applicant, since they had merely brought to the public ’ s attention certain facts mentioned by other people, with whom the applicant did not have a good relationship. With respect to the photographs complained about, the court briefly held that “ ... it is not clear from the photos whether the person photographed is or is not the injured party [the applicant] ”. The court further rejected the applicant ’ s compensation claim, stating that there was no connection between the defendants ’ acts and the damage alleged.", "14. An appeal on points of law ( recurs ) brought by the applicant against this decision was allowed by the Dolj County Court on 31 October 2003. It ordered a retrial of the case, due to the fact that the two defendants had not been identified and heard by the lower court.", "15. A search conducted by the police concluded that B.B.O. had written the article in question under the alias of R.C. B.B.O. did not appear before the court, although he had been summoned.", "16. On 8 April 2005 the Craiova District Court acquitted B.B.O. and rejected the applicant ’ s claim for compensation. Quoting the Court ’ s case ‑ law on freedom of expression, the Craiova District Court held that the applicant was a public figure and was hence exposed to criticism. The court also held that the defendant had not intended to defame the applicant, as he had just published information that he had collected from other people, such as students, professors, and so on. It also held:", "“The publication of the compromising photos accompanied by comments concerning the actors ’ identity is a shocking way of exercising the freedom of expression guaranteed by Article 10 of the Convention and Article 30 of the Romanian Constitution. ...", "Restricting the ability to publish documents because [they] might harm a person ’ s dignity would not be a necessary measure in a democratic society where the journalist ’ s sources were credible.", "As regards crimes against dignity committed through the media, a journalist ’ s investigation is always important and is based on direct and indirect sources, official documents and documents collected through leaked information, official and private statements, some confidential, not all free from doubt. What must be proved beyond any doubt is the journalist ’ s bad faith which, in the current case, has not been proved.", "The statements of witnesses M.G. and P.T., colleagues and friends of the applicant, with respect to his personality and professional reputation are credible, but strictly only prove the perception of these people .”", "The court analysed the applicant ’ s claim for compensation from the standpoint of Article 998 of the Civil Code and decided to reject the claim for non-pecuniary damage since the defendant ’ s guilt had not been proved, and the claim for pecuniary damage as unsubstantiated.", "17. The applicant lodged an appeal on points of law against this decision, alleging that the defendant had not been summoned at the correct address and that, in his absence, the judges could not have correctly established the facts or whether he had acted in good or bad faith. The applicant further submitted that B.B.O. had not acted in good faith. Firstly, because he had never contacted him for his version of the facts and secondly, because according to his criminal record attached to the file, the journalist had several previous convictions for slander and defamation. The applicant also alleged that the journalist had made accusations which attracted criminal sanctions, and therefore their truthfulness could and should have been verified by the courts.", "18. On 11 November 2005 the Dolj County Court finally dismissed the applicant ’ s appeal on points of law as ill-founded. The court held that, even though it may have been defamatory, having in mind the applicant ’ s profession and the media ’ s role in a democratic society, the article in question had just drawn attention to the behaviour of a public figure in the exercise of his functions. The court further held that the defendant journalist had wanted to “ expose certain backstage games and interests in a higher education institution ... with a view to remedying the situation and maintaining good educational process”. The applicant ’ s specific reasons for appealing on points of law, such as the incorrect summoning and the failure to hear the defendant ’ s statement and verify the truthfulness of the allegations published by the defendant, were not analysed by the court." ]

[ "II. RELEVANT DOMESTIC LAW", "19. The relevant domestic provisions of the Civil and Criminal Codes concerning defamation and liability for compensation, in force at the material time, as well as the subsequent developments in the legislation, are described in the case of Timciuc v. Romania (( dec. ), no. 28999/03, §§ 95 ‑ 97, 12 October 2010).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "20. Relying on Article 6 § § 1 and 2 and Article 8 of the Convention, the applicant complained that the publication of the article in question and accompanying pictures had damaged his reputation, which the domestic courts had subsequently failed to protect. The Court considers that the present complaint falls to be examined solely under Article 8 of the Convention which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "21. The Government disputed the admissibility of the application on the grounds that the applicant had made serious accusations and insulted national judges; an attitude which was not in conformity with the right to individual petition before the Court.", "22. In particular, the Government pointed out that, in his submissions to the Court, the applicant had mentioned that the judges dealing with his case at the domestic level were corrupt, having deliberately misinterpreted and misapplied the law and taken unlawful decisions.", "23. The Court reiterates that an application may be rejected as abusive if it is knowingly based on untruths (see Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996 ‑ IV; I.S. v. Bulgaria ( dec. ), no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X). In addition, persistent use of insulting or provocative language by an applicant may be considered an abuse of the right of application within the meaning of Article 35 § 3 of the Convention (see Manoussos v. the Czech Republic and Germany ( dec. ), no. 46468/99, 9 July 2002; Duringer and Others v. France ( dec. ), nos. 61164/00 and 18589/02; and Stamoulakatos v. the United Kingdom, no. 27567/95, Commission decision of 9 April 1997).", "24. Turning to the present case, the Court notes that the statements made by the applicant as quoted by the Government reflect his emotional attitude towards the behaviour of the authorities in his case. Admittedly, some of the applicant ’ s allegations were provocative and inappropriate and thus regrettable, but in sum the Court finds that they do not meet the threshold of offensiveness and frequency that would make them an abuse of petition (see Omerović v. Croatia (no. 2), no. 22980/09, § 33, 5 December 2013).", "25. Further, the Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "26. The applicant asserted that the article of 8 September 2001 made untrue and defamatory statements about his private life, such as the fact that he was involved in child sex abuse, statements which had damaged his reputation on both a personal and professional level. In addition, the applicant submitted that in assessing his complaint, the domestic courts had failed to verify the truthfulness of the facts contained in the article and to analyse all his allegations.", "27. Referring to the Court ’ s decision in Pipi v. Turkey (( dec. ), no. 4020/03, 12 May 2009), the Government contended that the information published in the current case did not concern purely personal details and were not an intolerable and continuous intrusion into the applicant ’ s life. The applicant ’ s reputation may have been affected, but this did not exceed the limits of the journalist ’ s right to freedom of expression.", "28. The Government submitted that the applicant ’ s complaint had been thoroughly examined by the national courts, which had applied the law in force at the relevant time to the particular circumstances of the case. They emphasised the fact that in its judgment of 8 April 2005, the Craiova District Court had taken into consideration the Court ’ s case-law under Article 10 of the Convention.", "2. The Court ’ s assessment", "29. What is at issue in the present case is a publication affecting the applicant ’ s reputation. The Court reiterates that it has already been established in its case-law that “private life” extends to aspects relating to personal identity and reputation (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Petrina v. Romania, no. 78060/01, §§ 27-29 and 34-36, 14 October 2008; and Timciuc, cited above, § 143). Moreover, the Court has found the publication of a person ’ s photograph to fall within the scope of his or her private life, even where the person concerned is a public figure (see Von Hannover v. Germany, no. 59320/00, § 34, 24 June 2004 ). Article 8 therefore applies, and this is not disputed by the parties.", "30. The Court notes that the applicant did not complain about any action by the State, but rather that the State had failed to protect his reputation against interference by third parties. In this connection, the Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life, even in the sphere of the relations of individuals between themselves (see Odièvre v. France [GC], no. 42326/98, § 40, 13 February 2003 and Dickson v. the United Kingdom [GC], no. 44362/04, § 70, 4 December 2007). The Court therefore considers that the present case engages the State ’ s positive obligations arising under Article 8 to ensure effective respect for the applicant ’ s private life, in particular his right to protection of his reputation.", "31. The main question in the present case is whether the State has, in the context of its positive obligations under Article 8, achieved a fair balance between the applicant ’ s right to protection of his reputation, which is an element of his “private life”, and the other party ’ s right to freedom of expression guaranteed by Article 10 of the Convention (see Von Hannover, cited above, § 57, with further references, and Pfeifer, cited above, § 38).", "32. The Court reiterates that where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06, 28964/06, § 57, 12 September 2011; and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012). In balancing the right to freedom of expression against the right to respect for private life in the present case, the Court will take into account the following relevant criteria laid down in its case-law.", "33. An initial essential criterion is the contribution made by articles or photographs published in the press to a debate of general interest involving issues such as politics, crime, sport or the performing arts (see Von Hannover, cited above, § 60; White v. Sweden, no. 42435/02, § 29, 19 September 2006; and Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012, with further references). The rumoured marital problems of the president of a Republic or the financial difficulties of a famous singer have not been deemed to be matters of general interest (see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 52, 4 June 2009, and Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 43, 23 July 2009). In addition, the Court has previously found no public interest justifying the publication of data concerning a person ’ s health or reference to her sex life, which have been held to be of a purely private nature therefore falling within the protection of Article 8 of the Convention (see Biriuk v. Lithuania, no. 23373/03, §§ 39-42, 25 November 2008).", "34. In the current case, the article published on 8 September 200 1 in the Republica Oltenia newspaper described in detail an incident in the applicant ’ s sex life which happened nineteen years before, as well as crimes allegedly committed by him in connection with his job as a university professor nine years before. The article included pictures of the applicant nude and having sex. It also included serious accusations against him, such as the fact that he was involved in “bribery, blackmail, child sex abuse and sexual deviance”. Lampooning statements about his character were also made by the journalist, such as: “Sex pervert, criminal, blackmailer”. The Court observes that the domestic courts did not make a serious assessment as to whether the entire material published contributed to a debate of general interest, or whether what was published was true. For example, the public interest at the moment of publishing of matters dating back to nine or even nineteen years ago, was not analysed. Furthermore, the domestic courts did not discuss at all whether the photographs themselves contained information related to an event of contemporary society or contributed to a debate of public interest.", "35. In this connection, the Court also considers that the act of making such serious accusations against a person identified by their name and occupation, such as the applicant, involves an obligation on behalf of the journalist to provide a sufficient factual basis for his statements (see Polanco Torres et Movilla Polanco v. Spain, no. 34147/06, § 47, 21 September 2010). The Court had previously attached serious importance to whether the domestic courts analysed whether the journalist concerned had obtained his information legally, verified it with the applicants before publishing and whether he had also given the applicants the right to reply within the same article ( ibid., §§ 50-52). On the contrary, in the current case, failing to identify and subsequently correctly summon the journalist who wrote the article, the domestic courts automatically regarded his sources as credible and assumed that he had acted in good faith (see paragraphs 13 and 16 above). In this respect the Court notes that, in the course of the proceedings before the domestic courts, no material was produced in order to support the allegations made in the article and no witnesses testified that the applicant was involved in the activities described by the journalist (see Lavric v. Romania, no. 22231/05, § 44, 14 January 2014).", "36. The role or function of the person concerned and the nature of the activities that form the subject matter of the article constitute another important criterion, which relates to the previous one. In this connection, the Court has previously held that a fundamental distinction needs to be made between reporting factual matters capable of contributing to a debate in a democratic society, such as those relating to politicians in the exercise of their official functions, and reporting details of the private life of an individual who does not exercise such functions, with the sole aim of satisfying public curiosity (see Von Hannover, cited above, §§ 63 and 65, and Standard Verlags GmbH, cited above, §§ 47 and 53). In the latter case, freedom of expression calls for a narrower interpretation (see Von Hannover, cited above, § 66, and Hachette Filipacchi Associés (ICI PARIS), cited above, § 40).", "37. The Court observes that the applicant in the present case was a university professor unknown to the larger public. It also notes that the domestic courts did not make any assessment which could lead to the conclusion that he was a public figure, but merely assumed that his position as university professor rendered him more exposed to criticism.", "38. There can be little doubt that the disputed article and accompanying photographs seriously prejudiced the applicant ’ s honour and reputation and was harmful to his psychological integrity and private life (see, mutatis mutandis, A. v. Norway, no. 28070/06, § 64, 9 April 2009, Mikolajová v. Slovakia, no. 4479/03, § 55, 18 January 2011 and Roberts and Roberts v. the United Kingdom, ( dec. ), no. 38681/08, §§ 40-41, 5 July 2011). In view of the above, the Court is therefore not convinced that the national courts attached the required importance to the questions whether the article contributed to a debate of general interest and whether the applicant should have been regarded as a public figure. It considers therefore that the national courts did not carefully balance the journalist ’ s right to freedom of expression against the applicant ’ s right to respect for his private life.", "39. The foregoing considerations are sufficient to enable the Court to conclude that there has thereby been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "40. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "41. The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage, consisting of loss of income owing to the fact that the article in dispute had prevented him from accessing a higher position in his occupation. He also claimed EUR 100,000 in respect of non-pecuniary damage, submitting that the publication of the article and serious accusations therein had exposed him and his family to public shame.", "42. The Government submitted that the amounts claimed were excessive and unsubstantiated. They contended that the finding of a violation would constitute sufficient just satisfaction for the applicant in the current case.", "43. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it accepts that the failure to protect the applicant ’ s reputation against the defamatory article must have caused him feelings of distress. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,500 in compensation for non-pecuniary damage.", "B. Costs and expenses", "44. The applicant also claimed EUR 1, 000 for the costs and expenses incurred before the Court, without submitting any supporting documents.", "45. The Government requested the Court to dismiss the applicant ’ s claims as unsubstantiated.", "46. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the lack of relevant documents justifying the payment of the requested expenses and in the light of its case-law, the Court rejects this claim (see Alkaya v. Turkey, no. 42811/06, § 48, 9 October 2012).", "C. Default interest", "47. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1957 and lives in Villavente (León).", "6. He worked as a teacher, also acting as head of department, in a public school, the León School of Arts and Crafts ( Escuela de Artes y Oficios de León ). One of his colleagues – a teacher in the same department – filed a complaint against him with the education authorities for psychological harassment in the workplace. The complaint was dismissed on the basis that there had been no harassment but mere disputes at work.", "7. On 20 June 2006 the colleague filed an administrative claim with the Department of Education of the Regional Government of Castilla - León aimed at seeking redress for the malfunctioning of the public administration. She requested that the administration be found liable for the alleged psychological harassment in the workplace. The competent authorities did not render a decision within the requisite time-limit.", "8. On 25 January 2007 the colleague instituted judicial proceedings ( recurso contencioso-administrativo ) against the implied rejection of her request of 20 June 200 6. She claimed that the applicant had subjected her to workplace harassment, from the academic year 2000/01 onwards in particular, and that the competent authorities had failed to take any measures to prevent it. She described a series of events in which the applicant had allegedly made false accusations against her and subjected her to discriminatory and humiliating treatment, disrespect, insults and death threats at work in the presence of students, parents and other colleagues. The colleague further requested compensation from the Regional Administration of Castilla - León in the amount of 74,434.12 euros (EUR), as well as reinstatement in her position as a teacher at the León School of Arts and Crafts, requesting that all appropriate measures be taken to prevent any possible risks, particularly psychosocial, in the workplace.", "9. On 19 December 2007, after notice of the aforementioned application was given, the respondent – the Regional Administration of Castilla - León – contested the claims and requested the dismissal of the application.", "10. By a judgment (no. 2491/2011) of 2 November 2011, the High Court of Justice of Castilla - León (Administrative Chamber) ruled against the Regional Administration of Castilla - León, ordering it to pay compensation to the plaintiff in the amount of EUR 14,500. It concluded that the situation suffered by her amounted to workplace harassment and that the education authorities, despite being aware of the situation, had not taken effective measures to bring it to an end. Although the court acknowledged that not all the acts or behaviour attributed to the applicant could be considered psychological harassment, it found that on the basis of the evidence collected a situation of psychological harassment in the workplace had been shown to exist.", "The High Court of Justice included the following reasoning concerning the applicant, who was frequently identified by name :", "“ ... from the documentary, witness and expert evidence [in the proceedings] [the court] can find that ... a situation of psychological harassment in the workplace has been shown [to exist] on the basis that the head of department ’ s conduct towards the claimant met the material element – unjustified professional harassment – the temporal element – regular and repeated – and the element of intent – malicious and not by chance – of the so-called bullying ( mobbing ) ...", "a) Not all the acts or behaviour that the plaintiff attributed to Mr Vicent ... constitute psychological harassment towards her ...", "b) ... although it should also be considered established that the behaviour ... of Mr Vicent ... was to a certain degree general or collective, ... in the particular case of the plaintiff ... this general behaviour of a lack of respect and manners was translated, more intensively and strongly, into repeated and conscious professional discredit, of underestimation and mockery of her teaching ability, that resulted not only from the documented complaints already described ..., but particularly from the expressive witness evidence ... ”", "11. On 15 December 2011 the applicant requested to have access to the file and to become a party to the proceedings. He claimed to have learned of the judgment some days earlier through the publication of information in a León newspaper ( Diario de León ).", "12. By a decision of 23 January 2012, the High Court of Justice of Castilla - León granted the applicant access to the file but refused his request to be a party to the proceedings on the basis that he could not be considered to be an interested party in liability proceedings against the public administration.", "13. On 1 February 2012 the applicant lodged an appeal against the above - mentioned decision requesting the annulment of the proceedings. The High Court of Justice of Castilla - León dismissed it by a decision of 2 March 2012. On the one hand, the court held that the request for annulment of the proceedings had been made outside the time-limit prescribed by law, since an “appeal for annulment” ( incidente de nulidad ) should have been submitted within twenty days of the date the applicant became aware of a possible breach of his rights. The court took into account that the applicant had claimed that he had learned of the judgment through the publication of information in a newspaper on 9 and 10 December 2011, and that in any case on 15 December 2011 ( the date on which he had requested access to the file and to become a party to the proceedings) he had clearly known the decisive elements for his complaints.", "The court nevertheless decided on the merits. It stressed that the proceedings were aimed at determining liability for the damage suffered by the claimant as a result of the acts of the authorities and staff working for the public administration. Therefore, in line with section 145 of Law 30/1992 and the relevant subordinate legislation, within such proceedings neither the authorities nor civil servants could be sued nor, accordingly, could they be a party to the proceedings. The national legislature had set up liability proceedings against the public administration excluding the possibility of its authorities or staff becoming interested parties to them even though in all cases the public officials concerned were identifiable; their professional conduct was being judged and hence their honour and moral integrity could eventually be affected; there was a possibility that the administration concerned would institute a “recovery action” against them; and the administrative or judicial decisions were subject to potential media coverage.", "Despite acknowledging that public officials ’ professional conduct was being judged and that their honour and moral integrity could be affected, the court held : ( i ) that the proceedings involved disputes exclusively between the public administration and alleged victims of the acts of its public officials; (ii) that the authorities and staff allegedly causing the damage could not be considered to be interested parties for the purposes of section 31 of Law 30/1992; and (iii) that both liability and compensation are sought from the public administration, as opposed to the public officials concerned. Lastly, the court stated that the public official concerned would only be considered to be an interested party in a recovery action ( acción de repetición ) under section 145 ( 2 ) of Law 30/1992, in which each and every one of the elements constituting the liability for which recovery was sought could be contested, including the acts attributed to him or her.", "The court thus concluded that the concept of an “interested party” in liability proceedings brought against the public administration should be understood as referring to those allegedly injured by the acts of public officials. The restriction on public officials being a party to such (administrative or judicial) proceedings was however justified by the special nature, purpose and scope of liability proceedings brought against the public administration. According to the court, such proceedings were set up to facilitate redress and compensation for those affected by the acts of public officials. Otherwise, the proceedings would require each and every public official concerned (including, for example, the school management board and education inspectorate, or doctors, nurses, porters and so forth in cases related to healthcare) to be summoned to appear in proceedings in their own defence and with their own representatives, contrary to the regulatory developments, that essentially simplified the proceedings for the benefit of those injured or affected by the public administration.", "14. The applicant then lodged an amparo appeal with the Constitutional Court, invoking a breach of Article 24 of the Spanish Constitution (right to a fair trial). He claimed that, despite his having a direct and personal interest in the proceedings on the basis that his rights and legitimate interests had been affected, he had not been summoned to appear and his request to become a party to the proceedings had been refused. The court declared the appeal inadmissible by a decision of 2 October 2012 (served on the applicant on 9 October 2012) on the grounds that it had not duly justified its special constitutional significance." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "15. The relevant provisions of the Constitution read as follows:", "Article 24", "“1. Everyone has the right to obtain effective protection by the judges and the courts in the exercise of his or her rights and legitimate interests, and in no case may he or she go undefended.", "2. Likewise, everyone has the right to be heard by a court established by law, to the defence and assistance of a lawyer, to be informed of any charges brought against him or her, to a public trial without undue delay and with full guarantees, to make use of evidence relevant to their defence, not to incriminate him or herself, not to declare him or herself guilty, and the right to be presumed innocent.”", "Article 120", "“1. Judicial proceedings shall be public, with the exceptions provided for in the laws on procedure.", "2. Proceedings shall be predominantly oral, particularly in criminal matters.", "3. Judgments shall always contain a statement of the grounds on which they are based and be delivered in a public hearing .”", "B. Procedure in administrative matters", "16. The relevant provisions of Law 30/1992 on the legal regime applicable to the public administration and on common administrative procedure ( Ley de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común ), as in force at the relevant time, read as follows:", "Section 31", "“1. The following shall be considered interested parties in administrative proceedings:", "( a ) ...", "( b) Those who, without having instituted the proceedings, have rights that may be affected by the decision adopted.", "( c) Those whose legitimate interests, whether individual or collective, may be affected by the decision and appear in the proceedings as long as no final decision has been taken.", "... ”", "Section 139", "“1. Individuals shall have the right to be compensated by the [public administration] concerned for any damage to their goods and rights, except in cases of force majeure, provided that the damage is the consequence of the normal or abnormal functioning of public services.", "...”", "Section 145", "“1. For liability [of the public administration ] to be effective, individuals shall claim compensation for the damage caused by the authorities and staff directly from the [ Administration ] concerned.", "2. The [ Administration ] concerned, when it has compensated those who have suffered damage shall, of its own motion, seek liability from its authorities and its other staff for wilful misconduct or gross negligence ...", "To seek such liability the following criteria, among others, shall be weighed: the damage caused, the existence or [non-existence] of intent, the professional liability of the [ public officials] and their relation to the occurrence of the damage.", "... ”", "17. The rules of procedure on the liability of the public administration in force at the relevant time were approved by Royal Decree 429/1993 of 26 March 1993.", "18. The relevant provisions of Law 29/1998 regulating judicial proceedings in administrative matters ( Ley reguladora de la Jurisdicción Contencioso-administrativa ), as in force at the relevant time, read as follows:", "Section 21", "“1. The following shall be considered to be a respondent party:", "( a) The [ public administration ] and whichever bodies referred to in section 1.3 against whose activity the action is directed.", "( b) Persons or entities whose rights or legitimate interests may be affected should the claimant ’ s claims be upheld.", "( c) The [ public administration ’ s ] insurer, which shall always be a co-defendant along with the [ Administration ] insured.", "... ”", "Section 48", "“1. The court registrar ... shall require the [ Administration ] to forward [him or her] the administrative file, ordering it to issue the summonses referred to in section 49 ... ”", "Section 49", "“ 1. The decision to forward the file shall be notified within five days of its adoption to those appearing as interested parties in it, summoning them to appear as defendants within nine days ...", "...", "3. Once the file has been received, the court registrar ... shall check that the summonses have been issued and, if it becomes apparent that they are incomplete, [ he or she] shall order the [ Administration ] to issue the necessary [ summonses] to ensure the defence of the interested parties that are identifiable.", "... ”", "19. Constitutional Court judgment no. 15/2016 of 1 February 2016 interpreted the above - mentioned legal provisions in respect of liability proceedings brought against the public administration. The relevant passages of the judgment read as follows:", "“ ... what is at stake in liability proceedings brought against the [ Administration ] by an aggrieved party is not the possible liability of the public official who has participated in or contributed to causing the damage ( lato sensu ), but the strict liability of the [ Administration ] for any normal or abnormal functioning of public services, ...", "...", "... section 139 [of Law 30/1992] has specified the causal element that triggers ... the strict liability of the [Administration] for the functioning of public services, namely that the damage is the consequence of the normal or abnormal functioning of such services, except in cases of force majeure or of damage that the individual has the legal duty to sustain in accordance with the law. Law [ 30/1992] makes no mention of ... identifying the public official that may have caused the damage ..., nor does it make [the liability] conditional upon establishing [the public official ’ s] negligence, fault or intent, a perspective which does not even require examination, it being sufficient to prove the damage and the link between the functioning of the public service and the damage caused, ...", "The regulation of the action for liability against the [ Administration ] set up by the legislature, in short, implies that the affected right or legitimate interest is that of the aggrieved party bringing the action for compensation for the objective damage sustained, with the [ Administration ] being the defendant, without judging any additional, different and subjective liability of the [ public officials ] who have intervened in the situation at issue by act or omission.", "The legal regime of liability in this type of case nevertheless provides that ... the [ Administration ] may seek indemnity of the amount paid for the functioning of its public services from the public official subjectively liable, by bringing a recovery action under section 145 [of Law 30/1992] ...", "...", "... the reasoning contained in the legal conclusions of the judgment resulting from the first proceedings (strict liability of the [ Administration ] ) or the statement of facts arising from evidence examined that may relate to the subjective liability of the authorities or staff of the public administration, if they had been made on the occasion of the adduced objective damage examination, shall not under any circumstances entail, insofar as they are not the subject of the strict liability proceedings, the positive effect of substantive res judicata in subsequent proceedings judging the public officials ’ subjective liability ...", "...", "In the light of the above conclusion, the impugned decisions finding the applicant ’ s lack of legal standing to be a party to the strict liability proceedings against the [ Administration ] in the absence of a legitimate interest did not cause defencelessness, given that the declaration of liability of the [ Administration ] does not entail any automatic benefit or damage to [his rights]. It shall be at a later stage, either when bringing the recovery action ... or when instituting a possible disciplinary action, where the applicant may make submissions, present and examine evidence admitted and, where appropriate, lodge an appeal for judicial review of the final administrative decision rendered, thus keeping his opportunities for defence intact.", "... ”", "C. Publication of judgments", "20. The relevant provisions of Organic Law 6/1985 of 1 July 1985 on the Judiciary ( Ley Orgánica del Poder Judicial ), as in force at the relevant time, read as follows:", "Section 186", "“Courts and tribunals shall hold public hearings ... for ... the publication of judgments passed ... ”", "Section 205", "“ The judge rapporteur shall be responsible ... for:", "...", "6. Delivering judgments in a public hearing. ”", "Section 232", "“1. Judicial proceedings shall be public, with the exceptions provided for in the laws on procedure.", "2. Exceptionally, for reasons of public policy or for the protection of rights and freedoms, courts and tribunals, by reasoned decision, may restrict the publication and decree the secrecy of all or part of the proceedings .”", "Section 235", "“ Interested parties shall have access to books, files and judicial records which are not of a confidential nature ... ”", "Section 266", "“1. Judgments, once issued and signed by the magistrate or by all the judges who passed them, shall be deposited in the Court Office [ Oficina Judicial ] and access to the text shall be given to any interested party.", "Access to the text of a judgment, or to certain matters therein, may be restricted when it could affect the right to private life, rights of individuals requiring special protection or the guarantee of anonymity of victims or aggrieved parties, where appropriate, as well as, in general, in order to prevent judgments from being used for purposes contrary to the law.", "... ”", "21. The relevant provisions of Law 1/2000 on Civil Procedure ( Ley de Enjuiciamiento Civil ), supplementing Law 29/1998 on the matters not provided for therein, as in force at the relevant time, read as follows:", "Section 212", "“1. Judgments and other final decisions, once issued and signed by those who passed them, shall be published and deposited in the Court Office [ Oficina Judicial ] ... ”", "22. Issues pertaining to public access to judicial documents and the publication of judicial decisions and proceedings are further regulated by Regulation 1/2005 on additional aspects of judicial proceedings, approved by the plenary of the General Council of the Judiciary ( Consejo General del Poder Judicial ) in the Agreement of 15 September 2005. Section 4 provides that it is for the court registrars to facilitate access to judicial documents, including judgments, for those having an interest in them. They may decide to restrict access to or omit personal data where the protection of the honour or private life of any person affected by the judicial decision so requires. A decision to refuse access by the court registrar may be reviewed by the judge or president at the request of the interested party.", "23. The processing and dissemination of judicial decisions is also subject to legislation on data protection, particularly Organic Law 15/1999 of 13 December 1999 on the protection of personal data ( Ley Orgánica de Protección de Datos de Carácter Personal ) and its developing regulation approved by Royal Decree 1720/2007 of 21 December 2007.", "24. The plenary of the Constitutional Court of Spain approved the Agreement of 23 July 2015 regulating the exclusion of personal identity data in the publication of judicial decisions. Under that agreement, the Constitutional Court of its own motion preserves the anonymity of those who are not party to constitutional proceedings in its judicial decisions. The publication of personal data of parties to such proceedings may also be restricted for the protection of their right to private life. In such cases, the names of those concerned by the publication of Constitutional Court decisions are replaced by their initials, and any other data allowing for their identification is omitted.", "The Agreement developed the criteria set forth in Constitutional Court judgment no. 114/2006 of 5 April 2006, which stated the following:", "“ 7. The constitutional requirement for maximum dissemination and publicity of the full text of judicial decisions of [ the Constitutional Court] ... is not absolute and may be excluded in certain cases ... [ This] principle may be restricted by the possible prevalence of other conflicting fundamental rights and constitutional guarantees, and that should be weighed in each case.", "...", "The need to weigh and identify the particular interests to take into consideration to justify the exception of full publicity of the decision has been the consistent practice of this Court, it being dependent on a number of criteria also followed by foreign, supranational and international High Courts and, particularly, by the European Court of Human Rights. Hence, this Constitutional Court ... notwithstanding the special care shown in order not to include in its decisions any personal data other than that strictly necessary to formulate its reasoning and rulings, on different occasions ... has proceeded to omit the identification of certain persons mentioned in its decisions, either considering the guarantee of anonymity of victims and aggrieved parties in special cases ...; or the specific duty to protect minors ...", "This ... is consistent with the practice followed by the European Court of Human Rights both in its rules of procedure and its case-law ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "25. The applicant complained of a violation of his right to respect for his private life on the grounds that the judgment rendered by the High Court of Justice of Castilla - León within the framework of the liability proceedings brought against the public administration (proceedings to which he was not a party ), establishing allegations of harassment made exclusively against him, had amounted to unjustified interference with his right to honour and reputation.", "He relied on Article 8 of the Convention, which reads as follows :", "“1. Everyone has the right to respect for his private and family life, ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "26. The Government maintained that the alleged breach of the applicant ’ s right to respect for his private life had not come from the judgment itself but from its dissemination by the press. Hence, the applicant could have used the following remedies: (a) a criminal complaint for offences against honour filed against those accusing him of a criminal offence knowing that the accusation was false ( Article 205 of the Criminal Code); (b) a claim for protection of honour and privacy against those who made or published defamatory statements even when they did not constitute a criminal offence (Organic Law 1/1982 on civil protection of the right to honour and to respect for private and family life); (c) a claim for correction or retraction against the media (Organic Law 2/1984 of 26 March 1984 ). Accordingly, the Government claimed that the applicant had failed to use any of the aforementioned criminal or civil remedies available, and therefore requested the Court to declare his complaint under Article 8 inadmissible for failure to exhaust domestic remedies.", "27. The applicant contested that objection. He stressed that the interference with his privacy and consequent breach of his right to honour and private life had come from the judgment rendered by the High Court of Justice of Castilla - León. He further claimed to have duly exhausted domestic remedies: he had requested the annulment of the proceedings, lodged an appeal against the refusal of his request to be a party to the proceedings, and lodged an amparo appeal with the Constitutional Court. The applicant emphasised that criminal or civil actions against the judges had not been possible in the instant case.", "28. The Court is of the opinion that the crux of the issue lies in the actions of the State authority, namely the disclosure of the applicant ’ s identity in the High Court of Justice ’ s judgment coupled with the statement of his acts as part of its own reasoning. The dissemination of the judgment and the applicant ’ s identity in the media certainly had a greater impact on the applicant ’ s reputation. However, the Court notes that the core of the complaint lodged by the applicant relates to the judgment itself and not to its press coverage or repercussions in the media.", "29. Accordingly, the Court dismisses the Government ’ s preliminary objection.", "30. The Government have not raised any other objection concerning admissibility. However, the Court further notes that the applicant ’ s appeal lodged with the Constitutional Court solely invoked a breach of Article 24 of the Spanish Constitution (right to a fair trial). Under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application. Accordingly, the normal practice of the Convention organs has been, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies, unless the matter has been raised by the Government in their observations (see Dobrev v. Bulgaria, no. 55389/00, § 112, 10 August 2006; Yordanov v. Bulgaria, no. 56856/00, § 76, 10 August 2006; and the references cited therein). As the Government have failed to raise such an objection, it follows that the present application cannot be rejected by the Court on the grounds that the domestic remedies have not been exhausted.", "31. The complaint must therefore be declared admissible as it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and neither is it inadmissible on any other grounds.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "32. The applicant maintained that the judgment rendered by the High Court of Justice of Castilla - León had affected the enjoyment of his “private life” by prejudicing his honour and reputation as a result of it establishing that he had committed acts of harassment in the workplace such as humiliating treatment, insults and death threats that had allegedly caused psychological damage to his colleague; all without him having been given the opportunity to defend himself against the allegations made exclusively against him.", "33. The applicant also contended that the judgment and its media coverage had adversely affected his moral and psychological integrity and that he had suffered personally, socially, psychologically and professionally. Once the judgment had been made public, the applicant ’ s reputation amongst his neighbours, the educational community and his friends and family in a small city had been damaged, causing him irreparable harm. He claimed to have been unfit for work for over a year, to have received psychological treatment, and to have encountered hostility and mistrust from his colleagues, as well as students and their parents after returning to work.", "(b) The Government", "34. The Government maintained that the High Court of Justice of Castilla-León had delivered a judgment setting out facts exclusively referring to the subject matter of the proceedings. They had been exclusively aimed at judging the acts of the public administration and its eventual liability, and thus the applicant had had no legitimate interest in being a party to the proceedings because he had not been affected at all by them. Moreover, the judgment had only been served on the parties to the proceedings.", "35. The Government contested the applicant ’ s claim, alleging that any possible damage to him was exclusively caused by the dissemination activities carried out by private individuals, notably the applicant ’ s colleague and the media, against whom judicial proceedings had not been instituted. The Government further argued that the High Court of Justice could not be deemed responsible for the subsequent publication of the text of the judgment by any of the parties to the proceedings. They further reiterated that the applicant had had effective remedies available against the misuse of the text of the judgment by any of the parties; remedies that he had failed to use.", "2. The Court ’ s assessment", "(a) General Principles", "36. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and the authorities cited therein ). This also applies to a person ’ s honour (see A. v. Norway, no. 28070/06, § 64, 9 April 2009; Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007; and Egill Einarsson v. Iceland, no. 24703/15, § 33, 7 November 2017 ). The concept of “private life” is a broad term not susceptible to exhaustive definition (see, among other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 109, 12 June 2014, and Gillberg v. Sweden [GC], no. 41723/06, § 66, 3 April 2012), which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person ’ s identity, such as a name or elements relating to a person ’ s right to their image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, 4 December 2008, and Axel Springer AG [GC], cited above, § 83; with further references therein ). It covers personal information which individuals can legitimately expect should not be published without their consent (see Axel Springer AG [GC], cited above, § 83; Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010; and Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010 ).", "37. While the essential object of Article 8 of the Convention is to protect individuals against arbitrary interference by public authorities, it may also impose on the State certain positive obligations to ensure effective respect for the rights protected by Article 8 (see Bărbulescu v. Romania [GC], no. 61496/08, § 108, 5 September 2017; Hämäläinen v. Finland [GC], no. 37359/09, § 62, ECHR 2014; and the authorities cited therein). These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves ( see Fernández Martínez [GC], cited above, § 114, and Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I).", "38. The boundaries between the State ’ s positive and negative obligations under the Convention do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had in particular to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, subject in any event to the margin of appreciation enjoyed by the State (see Bărbulescu [GC], cited above, § 108; Fernández Martínez [GC], cited above, § 114; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 62, ECHR 2011 ).", "(b) Application to the present case", "39. The Court observes at the outset that the applicant was not a party to the liability proceedings brought against the public administration. The national courts justified such restrictions by the special nature, purpose and scope of that type of proceedings. As described in paragraphs 13 and 19 above, the courts held that such proceedings solely concerned the public administration ’ s strict liability for the “normal or abnormal” functioning of public services. Therefore, the rights and legitimate interests affected were those of the injured party who brought the action to obtain compensation for damage sustained as a result of acts by public officials in the exercise of their duties. The possible liability of the public officials who had intervened in the situation at stake or had allegedly caused damage was not the subject of the proceedings, and consequently they could not participate in them. It was only the public administration concerned which was obliged to pay compensation as a result of the administrative or judicial decision, which was why it was the only party responsible for defending its acts and, therefore, the acts of its authorities and staff. A declaration of liability of the public administration did not entail any automatic benefit or damage to the public officials ’ rights. Hence, according to the courts, the applicant could have defended himself in person and contested all the constituent elements of liability, including the acts attributed to him, in a possible recovery action ( acción de repetición ) under section 145(2) of Law 30/1992. As the Constitutional Court noted, neither the reasoning nor the statement of facts set out in liability proceedings against the public administration had under any circumstances the force of res judicata with regard to subsequent proceedings judging the liability of the public official concerned.", "40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name or physical and moral integrity, as well as to reputation and honour. In this connection, the Court notes that the judgment of the High Court of Justice of 2 November 2011 disclosed the applicant ’ s identity and held that the applicant ’ s conduct had amounted to psychological harassment and bullying. The publication of these findings was capable of adversely affecting his enjoyment of private and family life. Therefore, in the Court ’ s view, the facts underlying the applicant ’ s complaint fall within the scope of Article 8 of the Convention.", "41. The Court also reiterates that Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one ’ s own actions such as, for example, the commission of a criminal offence (see, inter alia, Gillberg [GC], cited above, § 67; Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII; and Mikolajová v. Slovakia, no. 4479/03, § 57, 18 January 2011 ). The Court is of the opinion that in the instant case it can reasonably be supposed that the applicant could not have foreseen the consequences that the judgment of the High Court of Justice entailed for him. On the one hand, he was reportedly unaware of the proceedings. He had not been summoned to appear and was not a party to the proceedings, which in addition were solely aimed at determining the strict liability of the public administration concerned as a result of professional acts and omissions by public officials in the exercise of their duties. Furthermore, the complaint lodged against him by his colleague for psychological harassment in the workplace had been previously dismissed (see paragraph 6 above), and the colleague concerned had not taken further action against him. The Court also lays emphasis on the fact that the applicant was never charged with or proved to have committed any criminal offence. It follows that the disclosure of the applicant ’ s identity in the reasoning of the judgment of the High Court of Justice cannot be considered to be a foreseeable consequence of the applicant ’ s own doing.", "42. Accordingly, the Court finds that the inclusion by the High Court of Justice of the applicant ’ s identity, coupled with the statement on his acts as part of its own reasoning in the judgment constituted an “ interference ” with the applicant ’ s right to respect for his private life as guaranteed by Article 8 § 1 of the Convention (see, mutatis mutandis, C.C. v. Spain, no. 1425/06, § 26, 6 October 2009; Sanchez Cardenas v. Norway, no. 12148/03, § 34, 4 October 2007; and Z v. Finland, no. 22009/93, § 71, 25 February 1997 ).", "43. It therefore remains to be examined whether the interference was justified under Article 8 § 2. Such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with the law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary in a democratic society” in order to achieve them.", "44. In this regard the Court notes that it is undisputed that the interference was “in accordance with the law” and the Court finds no reason to hold otherwise.", "45. As to the question of whether the inclusion of the statement in the aforementioned judgment pursued any of the legitimate aims, the Court recognises that there is a public interest in ensuring the transparency of court proceedings and thereby the maintenance of the public ’ s confidence in the courts (see Z v. Finland, cited above, § 77). The Court is of the view that the reasoning of the High Court ’ s judgment may have pursued one or more of the legitimate aims enumerated in Article 8 § 2, notably “ the protection of the rights and freedoms of others ”, particularly of the applicant ’ s colleague – as an alleged victim of harassment in the workplace – by acknowledging and publicly disclosing the facts as a way of reparation for the damage suffered and in the interests of the proper administration of justice.", "46. The Court further reiterates that an interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, for example, Fernández Martínez [GC], cited above, § 124; S. and Marper [GC], cited above, § 101; and the authorities cited therein).", "47. The Court accepts that the liability proceedings against the public administration had specific features that must be taken into account. Notwithstanding this, the Court notes that the High Court of Justice did not confine its reasoning to simply declaring the strict liability of the public administration or to concluding that the situation suffered by the applicant ’ s colleague had amounted to workplace harassment and that the education authorities, despite being aware of the situation, had not taken effective measures to prevent it or bring it to an end. It went beyond this by stating that the applicant ’ s conduct had amounted to repeated psychological harassment. The High Court of Justice drew its conclusion by conducting a thorough analysis of the facts and the evidence before it that identified the applicant by stating his full name and other relevant data.", "48. Furthermore, the Court observes that the above portrayal of the applicant ’ s conduct in an authoritative judicial ruling was likely to have great significance by the way it stigmatised him and was capable of having a major impact on his personal and professional situation, as well as his honour and reputation. In fact, the High Court of Justice itself acknowledged in its decision of 2 March 2012 (see paragraph 13 above) that in this type of proceedings the public officials concerned were identifiable, their honour and moral integrity could be affected, and the administrative or judicial decisions were subject to potential media coverage.", "49. The Court is therefore of the opinion that the disclosure of the applicant ’ s full name in the High Court of Justice ’ s judgment coupled with the statement of his acts as part of its own reasoning was not supported by any cogent reasons. As the Constitutional Court pointed out (see paragraph 19 above), Law 30/1992 made no mention of identifying the public official who had caused the damage, nor did it make the liability conditional upon establishing the public official ’ s negligence, fault or intent. This was not even required, it having been sufficient to prove the damage and its link with the functioning of the public service. In this connection, the Court reiterates that the protection of personal data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private and family life (see Z v. Finland, § 95, and C.C. v. Spain, § 31, both cited above ).", "50. The Court also observes that under the relevant Spanish law (see paragraphs 20-24 above), the High Court of Justice had a discretion to omit mentioning any names in the judgment permitting the identification of the applicant or to restrict publication of the judicial proceedings for reasons of public policy or for the protection of rights and freedoms. Moreover, access to the text of a judgment, or to certain matters therein, could be restricted when any person ’ s right to private life was affected.", "51. Hence, the High Court of Justice had the ability to adopt protective measures to preserve the applicant ’ s anonymity and decide of its own motion not to disclose the applicant ’ s identity or to remove identifying information in protection of his rights and freedoms. This could have been achieved by, for instance, referring to him simply by his initials. Such a measure would have to a great extent limited the impact of the judgment on the applicant ’ s right to reputation and private life. It is not apparent to the Court why the High Court of Justice did not take measures to protect the applicant ’ s identity, particularly given that he was not a party to the proceedings and had not been summoned to appear in them.", "52. The Court points out that the practice of refraining from disclosing the identity of certain individuals in judicial decisions is also followed by the Constitutional Court of Spain itself (see paragraph 24 above). The Court also follows the same practice. Although the general rule is that all documents shall be accessible to the public, the President of the Chamber can decide otherwise by restricting public access to a document or to any part of it where “ the protection of the private life of the parties or of any person concerned so require ” (Rule 33 of the Rules of Court). Moreover, the Court may authorise anonymity or grant it of its own motion (Rule 47 § 4 of the Rules of Court).", "53. The Court also takes note that the applicant reported that he only knew about the proceedings through the publication of information in a León newspaper some time after the judgment had been delivered. This was accepted by the domestic courts (see paragraph 13 above) and has not been challenged by the Government. It means that he would not have been aware of the proceedings until around a month after the judgment had been rendered. That is, more than five years after the complaint against the applicant had been dismissed by the competent education authorities (see paragraph 6 above) and after his colleague had filed a claim requesting that the administration be found liable for alleged psychological harassment in the workplace (see paragraphs 7 and 8 above). Nor does it emerge from any of the documents in the case file that the applicant was informed, questioned, summoned or in any other way notified by any other domestic authority of her colleague ’ s latter complaint. The Court further observes that his colleague did not reportedly take any (criminal or other) judicial action against the applicant after the complaint of harassment lodged with the education authorities had been dismissed. Accordingly, the applicant did not have the opportunity to request the non-disclosure of his identity or personal information by the High Court of Justice before its judgment was passed. The interference with the applicant ’ s private life was thus not accompanied by effective and adequate safeguards.", "54. The Court lastly observes that under domestic law judicial proceedings are in principle public unless decided otherwise for reasons of public policy or for the protection of rights and freedoms. As a result, judgments are delivered in public and, once issued and signed by those who delivered them, published. The High Court of Justice ’ s judgment itself made reference to its own publication. Although the Government have suggested that the publication of the text of the judgment could have been caused by any of the parties to the proceedings, the Court observes that this argument is not sufficiently substantiated by the material in the case file. The manner in which the media had access to the information has not been established. Nonetheless, the case had a significant impact and repercussions in media. The press certainly had access to the applicant ’ s full name, as shown by the fact that his identity was disclosed in the information published; publications that followed its disclosure in the High Court ’ s judgment.", "55. In this connection, the Court further notes that the parties have not disputed whether the judgment, once passed, was fully accessible by third parties not involved in the proceedings. The Court observes that it is not a judge but a court registrar who is in charge of authorising the disclosure of documents relating to judicial proceedings (see paragraph 22 above). Therefore, once the judgment was delivered, the access to the judgment was beyond the control of the High Court of Justice. Taking this into consideration, and the State authorities ’ obligation to protect individuals ’ right to reputation, the High Court of Justice should have adopted appropriate measures to protect the applicant ’ s right to respect for private life in drafting the judgment.", "56. In the light of the above, the Court finds that the interference with the applicant ’ s right to respect for his private life occasioned by the High Court of Justice ’ s judgment, was not sufficiently justified in the particular circumstances of the case and, notwithstanding the national court ’ s margin of appreciation in such matters, was disproportionate to the legitimate aims pursued. Accordingly, there has therefore been a violation of Article 8 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "57. The applicant complained under Article 6 § 1 of the Convention that, by refusing his request to become a party to the liability proceedings brought against the public administration despite his having a direct interest in them, he had not been given the opportunity to defend himself against serious allegations of harassment in the workplace in violation of his right of access to a court. The applicant further alleged that the lack of effective remedies to challenge the interference on his right to reputation and honour complained of under Article 8 had given rise to a violation of Article 13 of the Convention.", "58. The Government contested that argument.", "59. The Court notes that the complaints are linked to the one examined above under Article 8 of the Convention and must therefore likewise be declared admissible.", "60. Having regard to its findings under Articles 8 of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Articles 6 § 1 and 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "61. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "62. The applicant claimed a total of 37,061.62 euros (EUR) in respect of pecuniary and non-pecuniary damage. He claimed this amount as a result of the time he had been unfit for work while receiving psychological treatment and because he had suffered various after effects.", "63. The Government contested that claim.", "64. The Court observes that the applicant has not substantiated his claim concerning pecuniary damage; it therefore rejects this claim. On the other hand, it awards the applicant EUR 12 ,000 in respect of non-pecuniary damage.", "B. Costs and expenses", "65. The applicant also claimed EUR 9,268.60 for the costs and expenses incurred before the domestic courts and before the Court.", "66. The Government did not contest these claims.", "67. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 9,268.60 covering costs under all heads.", "C. Default interest", "68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1980 and lives in Kópavogur. At the material time he was a well-known person in Iceland who for years had published articles, blogs and books and appeared in films, on television and other media, under pseudonyms.", "6. In November 2011, an 18 - year - old woman reported to the police that the applicant and his girlfriend had raped her. In January 2012 another woman reported to the police that the applicant had committed a sexual offence against her a few years earlier. Upon the completion of the police investigation the Public Prosecutor, on 15 June and 15 November 2012, dismissed the cases in accordance with Article 145 of the Act on Criminal Procedures, because the evidence which had been gathered was not sufficient or likely to lead to a conviction. The applicant submitted a complaint to the police about allegedly false accusations made against him by the two women. This case was also dismissed.", "7. On 22 November 2012 Monitor, a magazine accompanying Morgunblaðið (a leading newspaper in Iceland), published an interview with the applicant. A picture of the applicant was published on the front page and in the interview the applicant discussed the rape accusation against him. The applicant claimed several times that the accusations were false. He stated, inter alia, that it was not a priority for him for the girl ’ s name to be exposed and that he was not seeking revenge against her. He accepted that having placed himself in the spotlight of the media he had to tolerate publicity which was not always “sunshine and lollipops” but criticised the way the media had covered his case. When asked about the girl ’ s age, he responded that the girl had been in a club where the minimum age had been 20 years and that it had been a shock to find out later that she had been only 18 years old. When asked about his complaints against the girl for allegedly wrongful accusations, he stated again that he was not seeking revenge against those who had reported him to the police, but that it was clear that they had had ulterior motives. He hoped that the police would see that it was important to have a formal conclusion in the case and that the documents in the case were “screaming” conspiracy.", "8. On the same day, X published an altered version of the applicant ’ s front-page picture with the caption “ Fuck you rapist bastard” on his account on Instagram, an online picture - sharing application. X had altered the picture by drawing an upside down cross on the applicant ’ s forehead and writing “loser” across his face.", "9. Apparently X had believed that only his friends and acquaintances, who were his “followers” on Instagram, had access to the pictures he published. However, his pictures were also accessible to other Instagram users.", "10. On 23 November 2012 the newspaper Vísir published an online article about X ’ s post, along with the altered picture and an interview with the applicant.", "11. On 26 November 2012 the applicant ’ s lawyer sent a letter to X requesting that he withdraw his statement, apologise in the media and pay the applicant punitive damages. By email the same day, X ’ s lawyer submitted that X had not distributed the picture online; it had been posted for a closed group of friends on Instagram and others had distributed it. Furthermore, the email stated that X was sorry and that the picture had been shared without his consent or knowledge.", "12. On 17 December 2012, the applicant lodged defamation proceedings against X before the District Court of Reykjavík and asked for him to be sentenced to punishment, under the applicable provisions of the Penal Code, for altering the picture and for publishing it on Instagram with the caption “Fuck you rapist bastard”. The applicant further requested that the statement “Fuck you rapist bastard” be declared null and void and that X be ordered to pay him 1,000,000 Icelandic krónur (ISK; approximately 8,800 euros (EUR)) in non-pecuniary damages under the Tort Liability Act, plus interest, ISK 150,000 (approximately 1,300 EUR) for publishing the judgment in the media under Article 241 of the Penal Code, and the applicant ’ s legal costs.", "13. By judgment of 1 November 2013, the District Court found against the applicant. The court stated, inter alia, that the applicant enjoyed the personal protection afforded by law, irrespective of which of his pseudonyms he was using. In the same way, the applicant had to take responsibility for material he issued, irrespective of the name he chose to use when doing so. The court further considered that the altered picture, along with the text, should be considered as a whole and that it contained X ’ s opinion of the applicant ’ s person, which indicated a strong dislike. As to the subject matter, the District Court found that the picture and the statement had been a part of general public debate because the applicant was a well-known person in Iceland and had to accept being the subject of public discussions. The court then described in detail his professional activities of writing online, publishing books and appearing on television, especially under pseudonyms, the subject matter of his work, the subsequent criticism of his work and his participation in public debates about it. The court noted that this had led to greater outcry and public debate about the accusations against him of sexual offences, a debate in which he had participated. The court concluded that the manner in which the words had been presented by X had been more invective than a factual statement, and should therefore be considered as a value judgment rather than a statement of fact. X ’ s statement had been within the bounds of freedom of expression granted to him by law.", "14. On 26 March 2014 the applicant appealed to the Supreme Court against the District Court ’ s judgment. Before the Supreme Court the applicant reiterated his argument that X ’ s Instagram account had been an “open” account, meaning that the picture had been accessible not only to his followers but to all Instagram users, over 100,000,000 people at the material time. He submitted further documents to support his argument.", "15. By judgment of 20 November 2014 the majority of the Supreme Court (two out of three judges) upheld the District Court ’ s conclusion. The Supreme Court accepted that the altered picture had been accessible, not only to X ’ s followers on Instagram, but to other users as well.", "16. Furthermore, the judgment contained the following reasons:", "“ [X] claims that his act of uploading the altered picture onto the picture - sharing application in question did not constitute the publication of the picture within the meaning of Article 236(2) of the Penal Code No 19/1940, as he had believed that only a limited number of people would have access to it. This cannot be accepted, as the act of making something accessible in electronic format to such a large number of people as stated above, irrespective of whether the persons in question are the friends and acquaintances of the person doing so, [ ... ], is considered to be a publication according to the traditional definition of the term. It remains to be determined whether [X ’ s] publication of the picture had, given the circumstances, constituted a defamatory allegation against the [ applicant] under Article 235 of the Penal Code.", "The appealed judgment describes in detail that, before the complaints of sexual offences against him as described above had been reported, [the applicant] had been a well-known person, not least for his performance in public under the names of Gillz or Gillzenegger, the names under which he wrote on Internet, published books and pictures and presented himself in the media. The views of the [ applicant ] published there garnered some attention, as well as controversy; views which included his attitudes towards women and their sexual freedom. The documents of the case reveal that there were instances when his criticism had been directed towards named individuals, often women, and in some cases his words could be construed to mean that he was in fact recommending that they should be subjected to sexual violence. The [ applicant] has often justified such conduct by stating that the material had been meant in jest and that those who criticised it lacked a sense of humour. The Supreme Court agrees with the District Court that the [ applicant] enjoys the personal protection provided for by law, under Article 71 of the Constitution and Article 8(1) of the European Convention of Human Rights, cf. Act No 62/1994, irrespective of whether he was appearing under his own name or a pseudonym. In the same manner, he must take responsibility for the material he produces, irrespective of what name he chooses to use.", "When the [applicant] gave the aforementioned newspaper interview and employed provocative, if not derogatory, comments about others, including the girl who had accused him of sexual offences, he launched a public debate and should, moreover, have known that his comments would result in strong reactions from those who strongly disliked his abovementioned views. [X] enjoys freedom of expression according to Article 73(2) of the Icelandic Constitution and Article 10(1) of the European Convention on Human Rights, and the District Court reached the correct conclusion that under these circumstances he had enjoyed greater freedom to express himself about the [applicant] and his opinions.", "In assessing whether or not comments or other expressions can be considered a defamatory allegation according to Article 235 of the General Penal Code, taking into consideration the manner in which the provision of Article 10 of the [Convention] has been clarified by the European Court of Human Rights, it has to be decided whether the expression involved a value judgment or a factual statement. Although it can be agreed that by using the term ‘ rapist ’ about a named person, that person is being accused of committing rape, account must be taken of the context in which the term is set, cf. the ruling of the Supreme Court on 29 January 2009 in Case No 321/2008. If the altered picture and the comment ‘ Fuck you rapist bastard ’ are taken as a whole – as the parties agree should be the case – the Supreme Court agrees with the District Court that this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter, as stated previously, had instigated. It was therefore a value judgment about the [applicant] and not a factual statement that he was guilty of committing rape. In this context, it makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed. Accordingly, and with reference to the conclusion of the appealed judgment, the conclusion that [X] expressed himself within the limits of the freedom to which he is entitled under Article 73(2) of the Constitution, must be upheld. As a result he is acquitted of all the [applicant ’ s] claims.", "As is rightly stated in the appealed ruling, the modified picture and the comments of [X] attached thereto were indecent and tasteless with respect to the [applicant]. For this reason, and with reference to Article 130(3), cf. Article 166 of Act No 91/1991 on Civil Procedure, legal costs before both court instances will be cancelled.”", "17. In the minority ’ s opinion, the statement “ Fuck you rapist bastard”, considered in the light of the content of the article published by Monitor, could not be considered a value judgment but rather a grave insinuation that the applicant had committed a serious criminal offence. The minority concluded that, considering that the criminal investigation had ended with the case against the applicant being dismissed, and even if the applicant was a public person who had expressed himself in a controversial way in public, he should not have to tolerate this kind of comment." ]

[ "II. RELEVANT DOMESTIC LAW", "18. The relevant provisions of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) reads as follows:", "Article 71", "“Everyone shall enjoy freedom from interference with privacy, home and family life.", "...", "Notwithstanding the provision of the first paragraph above, freedom from interference with privacy, home and family life may be otherwise limited by statutory provisions if this is urgently necessary for the protection of the rights of others.”", "19. The Penal Code No. 19/1940 ( Almenn hegningarlög ), Chapter XXV, entitled “Defamation of character and violations of privacy”, sets out the following relevant provisions:", "Article 194", "“Any person who has sexual intercourse or other sexual relations with a person by means of using violence, threats or other unlawful coercion shall be guilty of rape and shall be imprisoned for a minimum of 1 year and a maximum of 16 years. ‘ Violence ’ here refers to the deprivation of independence by means of confinement, drugs or other comparable means.”", "Article 235", "“If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment for up to one year.”", "Article 236", "“Anyone who, against his or her better knowledge, makes or disseminates a defamatory insinuation shall be liable to up to two years ’ imprisonment.", "Where such an insinuation is published or disseminated publicly, even though the person publishing or disseminating it has no reason to believe it to be correct, the sentence shall be a fine or up to two years ’ imprisonment.”", "Article 241", "“In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party. A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter ’ s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.”", "Article 242", "“ The offences referred to in the present Chapter shall be subject to indictment as follows:", "...", "3. Lawsuits on account of other offences may be brought by the injured party alone. ”", "20. Section 26(1) of the Tort Liability Act No. 50/1993 ( Skaðabótalög ) reads:", "“A person who", "a. deliberately or through gross negligence causes physical injury or", "b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party may be ordered to pay non-pecuniary damages to the injured party.”", "21. Section 145 of the Criminal Procedure Act No. 88/2008 ( Lög um meðferð sakamála ) reads:", "“When the prosecutor has received all the evidence in the case and made sure that the investigation has been completed, he/she examines whether or not the defendant should be indicted or not. If the prosecutor feels that what has already been gathered is not sufficient or likely to lead to a conviction, he/she takes no further action, but otherwise he/she initiates a criminal case against the defendant, according to Article 152, cf. however Article 146.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "22. The applicant alleged that the Supreme Court judgment of 20 November 2014 entailed a violation of his right to respect for his private life as provided in Article 8 of the Convention. The relevant parts read as follows:", "“1. Everyone has the right to respect for his private and family life...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "23. The Government contested that argument.", "A. Admissibility", "24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "25. The applicant maintained that when X published the altered picture with the caption “ Fuck you rapist bastard” he had been accusing the applicant of raping a specific person, even though X had known that the case against him had been dismissed by the prosecutor. In the applicant´s opinion this was a factual statement about him being a rapist which could have been proven.", "26. The applicant submitted that it had been established that X had published the picture and the statement, in English, and made them accessible to over 100 million Instagram subscribers. Consequently, the picture had been published in the Icelandic media. The picture had given the impression that the person in the picture (the applicant) was a rapist.", "27. The applicant further argued that the conclusion of the Supreme Court had entailed that the applicant could be called a rapist without having been charged with or convicted of such a crime, and without being able to defend himself. This was a violation of his rights under Article 8 of the Convention.", "(b) The Government", "28. Firstly, the Government pointed out that the facts of the current case differed from cases concerning the media publishing information about individuals and therefore the Court ’ s principles in cases concerning the media could not be applied in the same way in the current case. Thus, for example, the criteria of the method of obtaining the information and its veracity did not apply in the present case. The information had been disseminated by one individual expressing a personal value judgment about the applicant and it had not been intended for the general public.", "29. In the Government ’ s opinion, the domestic courts applied standards that were in conformity with the principles embodied in Article 8 of the Convention as interpreted in the Court ’ s case - law. The balancing test - between the competing rights protected under Articles 8 and 10 of the Convention - was based on principles developed in the Court ’ s case - law. The domestic courts enjoyed a certain margin of appreciation in their assessment. The role of the Court should be in line with the principle of subsidiarity and the Court should only intervene where the domestic courts had considered irrelevant factors to be significant or where the conclusion reached had been clearly arbitrary or summarily dismissive of the interests at stake. The domestic courts were granted a wider margin in respect of positive obligations in relation to private parties where opinions within democratic society might differ significantly.", "30. The Government noted that the domestic courts had analysed the material as a whole and concluded that the statement had been a value judgment. The topic, the justice system ’ s handling of sexual violence, was a debate of general interest and the applicant ’ s case had been high - profile. The applicant had been a well-known person in Iceland, with a clear incentive to maintain his place in popular culture, something he did by promoting his alter ego, often stirring up debates with controversial comments about women or minority groups. He had been aware that his methods were controversial and he had had long - standing public feuds with other well-known persons. He had made strongly - worded statements and declarations in the media while the investigation was ongoing. The material had been distributed by an ordinary person expressing a value judgment on a burning social topic at the time.", "2. The Court ’ s assessment", "31. The Court notes that the present case requires an examination of whether a fair balance has been struck between the applicant ’ s right to the protection of his private life under Article 8 of the Convention and the other party ’ s right to freedom of expression as guaranteed by Article 10. It therefore considers it useful to reiterate the relevant general principles.", "(a) General principles", "32. The notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person ’ s name or image, and furthermore includes a person ’ s physical and psychological integrity ( see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, with further references).", "33. Furthermore, it has been accepted by the Court that a person ’ s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life. The Court has also concluded that a person ’ s reputation is part of their personal identity and moral integrity, which are a matter of private life even if the person is criticised in a public debate (see Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007 ‑ XII, and Petrie v. Italy, no. 25322/12, § 39, 18 May 2017 ). The same considerations apply to a person ’ s honour ( A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007).", "34. However, in order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, inter alia, Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, and Medžlis Islamske Zajednice Brčko and others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017 ).", "35. The Court notes that in cases such as the present one, it is for the Court to determine whether the State, in fulfilling its positive obligations under Article 8 of the Convention, has struck a fair balance between the applicant ’ s right to respect for his private life and the right of the opposing party to freedom of expression protected by Article 10 of the Convention. Moreover, paragraph 2 of Article 10 recognises that freedom of expression may be subject to certain restrictions necessary to protect the rights and reputation of others.", "36. The Court also points out that the choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States ’ margin of appreciation. In this connection, there are different ways of ensuring “respect for private life”, and the nature of the State ’ s obligation will depend on the particular aspect of private life that is at issue. Similarly, under Article 10 of the Convention, Contracting States have a certain margin of appreciation in assessing the necessity and extent of an interference with the freedom of expression protected by the Convention. However, this margin goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. In exercising its supervisory function, the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, inter alia, Petrie v. Italy, cited above, § 40 - 41, with further references).", "37. In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the Court considers that the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention or under Article 10. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases ( Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015 (extracts) ).", "38. Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts ( Bédat v. Switzerland [GC], no. 56925/08, § 54, ECHR 2016, with further references).", "39. Relevant criteria for balancing the right to respect for private life against the right to freedom of expression may be : the contribution to a debate of general interest; how well-known is the person concerned and what is the subject of the report; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanctions imposed (see, for example, Axel Springer AG v. Germany, cited above, § 89-9 5, and Von Hannover v. Germany (no. 2), cited above, § 108-113).", "40. Lastly the Court points out that, in order to assess the justification for an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive ( see Do Carmo de Portugal e Castro Câmara v. Portugal, no. 53139/11, § 31, 4 October 2016 and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, 17 December 2004 ).", "(b) Application of those principles to the present case", "41. The present complaint concerns an altered picture of the applicant which was published by X on an open Instagram account along with the caption “ Fuck you rapist bastard”. X had used a front page picture which had been published along with an interview with the applicant in an Icelandic magazine, Monitor, the same day.", "42. In the circumstances of the present case, the Court considers it appropriate to consider the following applicable criteria, in this specific order: how well-known is the person concerned, the subject matter of the statement and the prior conduct of the person concerned; the contribution to a debate of general interest and the content, form and consequences of the publication, including the method of obtaining the information and its veracity.", "(i) How well - known was the applicant, the subject matter and the applicant ’ s conduct prior to the publication of the impugned statement", "43. As noted above, the subject matter at issue was an altered picture of the applicant published on X ’ s Instagram account along with the caption “Fuck you rapist bastard”, shortly after two rape charges against the applicant had been dropped. The domestic courts, in their judgments, gave a detailed account about the applicant being a well-known person, and his prior conduct. They described his professional activities, inter alia, his online writing, publication of books, appearances on television and his way of presenting himself in the media. The courts noted that his views had attracted attention and controversy, including his attitudes towards women and their sexual freedom, and that he had participated in and explained his views in public discussions. Furthermore, the complaints against the applicant about sexual violence had led to public discussions in which he had participated.", "44. In the light of the domestic courts ’ findings, the Court agrees that the limits to acceptable criticism must accordingly be wider in the present case than in the case of an individual who is not well-known ( see, inter alia, Erla Hlynsdόttir v. Iceland, no. 43380/10, § 65, 10 July 2012, with further references). However, “while reporting on true facts about politicians or other public persons ’ private life may be admissible in certain circumstances, even persons known to the public have legitimate expectations of protection of, and respect for, their private life ” ( see Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, § 53, 4 June 2009 ).", "(ii) Contribution to a debate of general interest", "45. The domestic courts concluded that the publication of the picture had been a part of general public debate in the light of the fact that the applicant was a well-known person in Iceland and had participated in public discussions about his professional activities and the complaints against him of sexual violence. Furthermore, the Supreme Court stated: “ When the [applicant] appeared in the aforementioned newspaper interview and employed provocative, if not derogatory, comments about others, including the girl who had accused him of sexual violence, he launched a public debate and should, moreover, have known that his comments would result in strong reactions from those who strongly disliked his abovementioned views ”. The Court agrees with the domestic courts that, in the light of the fact that the applicant was a well-known person and the impugned statement was a part of a debate concerning accusations of a serious criminal act, it was an issue of general interest. The Court will now examine whether, due to the content, form and consequences of the impugned publication the national courts struck a fair balance between the applicant ’ s rights under Article 8 of the Convention and X ’ s rights under Article 10.", "(iii) Content, form and consequences of the impugned publication", "46. The Supreme Court, in its judgment of 20 November 2014, stated that the altered picture along with the caption had been accessible not only to X ’ s followers on Instagram, but to other users of the medium as well. The court concluded that, either way, it had been made available publicly and therefore came under Article 236 of the Penal Code. The Court sees no reason to disagree with the Supreme Court ’ s assessment on this point. In that respect the Court deems important to recall its previous case-law where it has recognised that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general. At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see, inter alia, Delfi AS v. Estonia, § 133, cited above).”", "47. The crux of the matter before the domestic courts was whether or not the statement “Fuck you rapist bastard” had been a statement of fact or a value judgment. The majority of the Supreme Court, in its judgment, stated: “Although it can be agreed that by using the term ‘ rapist ’ about a named person, that person is being accused of committing rape, account must be taken of the context in which the term is set, cf. the ruling of the Supreme Court on 29 January 2009 in Case No 321/2008. If the altered picture and the comment ‘ Fuck you rapist bastard ’ are taken as a whole – as the parties agree should be the case – the Supreme Court agrees with the District Court that this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter, as stated previously, had instigated. It was therefore a value judgment about the [applicant] and not a factual statement that he was guilty of committing rape. In this context, it makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed” (see paragraph 16 above).", "48. The Court reiterates that the classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. The Court may, however, consider it necessary to make its own assessment of the impugned statements ( see, for example, Brosa v. Germany, no. 5709/09, 17 April 2014, §§ 43-50).”", "49. The Court notes at the outset that the Supreme Court in fact accepted that by using the term “ rapist ” about a named person, that person was being accused of committing rape. However, the Supreme Court considered that the statement in question was to be classified as a value judgment when viewed in “ context ” (see paragraph 16 above). The question before the Court is therefore whether, viewed as a whole and in context, as is required by the case-law of the Court (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 - IV), the findings of the Supreme Court were within its margin of factual appreciation that must be afforded to the national courts as to the classification of the statement (see Arnarson v Iceland, no. 58781/13, § 45, 13 June 2017 ).", "50. At the outset, the Court notes that the term “ rapist ” is objective and factual in nature. It directly refers to a person who has committed the act of rape, which is criminalised under the Icelandic Penal Code (see paragraph 18 above). The veracity of an allegation of rape can therefore be proven. It follows that, viewed on its face, the statement “ Fuck you rapist bastard ” included a statement of fact as it clearly assigns the status of “ rapist ” to the person who is the subject of the statement. Although the Court does not exclude the possibility that an objective statement of fact, such as the one impugned in the present case, can, contextually, be classified as a value judgment the contextual elements justifying such a conclusion must be convincing in the light of the objective and factual nature of the term “ rapist ” taken at face value. (see, a contrario, for example, Karman v Russia, no. 29372/02, 14 December 2006, § 41, and Brosa, cited above, §§ 43-50).”", "51. In this regard, the Court considers it crucial that when describing the context of the statement in question, the Supreme Court relied primarily on the applicant ’ s participation in a “ ruthless debate ” which he had “ instigated ”. The Supreme Court failed to take adequate account of the important chronological link between the publication of the statement on 22 November 2012 and the discontinuance of the criminal cases of alleged rape against the applicant, the second only a week before, on 15 November 2012, both cases being the subject matter of the magazine interview on 22 November 2012 which prompted X to publish his statement. In other words, although the Court has no reason to call into question the Supreme Court ’ s findings that the statement was a part of a “ ruthless public debate ” prompted by the applicant ’ s behaviour and public persona, the factual context in which the statement was made, and its allegation that the applicant was a “ rapist ”, was the criminal proceedings in which the applicant had been accused of the very same criminal act to which the statement referred, proceedings which had been discontinued by the public prosecutor for lack of evidence (see paragraph 6 above).", "52. In light of the above, and in particular the objective and factual nature of the term “ rapist“, when viewed on its face, the Court finds that the contextual assessment made by the Supreme Court did not adequately take account of relevant and sufficient elements so as to justify the conclusion that the statement constituted a value judgment. However, even assuming that the Court were to accept the Supreme Court ’ s classification of the statement “rapist” as a value judgment, the Court recalls that under its settled case-law (see paragraph 40 above), even where a statement amounts to a value judgment there must exist a sufficient factual basis to support it, failing which it will be excessive. In the light of the discontinuance of the criminal proceedings against the applicant just prior to the publication of the applicant ’ s newspaper interview, the Supreme Court failed to explain sufficiently the factual basis that could have justified assessing the use of the term “rapist” as a value judgment, the Supreme Court merely referring, as previously mentioned, to the applicant ’ s participation in a “ruthless public debate” which he had “instigated” when he gave the interview in question. In short, Article 8 of the Convention must be interpreted to mean that persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts. The Court therefore finds that the statement was of a serious nature and capable of damaging the applicant ’ s reputation. It reached such a level of seriousness as to cause prejudice to the applicant ’ s enjoyment of the right to respect for private life for Article 8 to come into play (see, inter alia, A v. Norway, cited above, § 64).", "(iv ) Conclusion", "53. In the light of the above-mentioned considerations the Court finds that the domestic courts failed to strike a fair balance between the applicant ’ s right to respect for private life under Article 8 of the Convention and X ’ s right to freedom of expression under Article 10 of the Convention. The Court therefore finds that there has been a violation of Article 8 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "54. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "55. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "56. The Government argued that the finding of a violation by the Court would in itself constitute just satisfaction for any non-pecuniary damage claimed. However, if the Court were to find it appropriate to award the applicant non-pecuniary damages, the amount should be reduced significantly.", "57. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant.", "B. Costs and expenses", "58. The applicant also claimed EUR 28,200 (ISK 3,413,640) for the costs and expenses incurred before the domestic courts and EUR 9,190 ( ISK 1,112,280) for those incurred before the Court. The above amounts included value added tax (“VAT”).", "59. The Government left it to the Court to decide the appropriate amount of costs to be reimbursed.", "60. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 10.000 in respect of cost and expenses incurred before the domestic courts and EUR 7,500 for those incurred before the Court.", "C. Default interest", "61. The Court has taken note of the applicant ’ s invitation to apply default interest to its Article 41 award “equal to the monthly applicable interest rate published by the Central Bank of Iceland ... until settlement”, that should run from 20 November 2014, the date of the Supreme Court ’ s judgment and that the interest should run from the date when the present judgement has become final.", "62. However, the Court is of the view that the applicant ’ s interest in the value of the present award being preserved has been sufficiently taken into account in its assessment above and in point 3(b) of the operative part below. In accordance with its standard practice, the Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1958 and lives in Vilnius. He was represented by Ms K. Čeredničenkaitė, a lawyer practising in Vilnius.", "3. The Government were represented by their Acting Agent, Ms L. Urbaitė.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background to the case", "5. The applicant is a politician. He has been a member of the Seimas (the Lithuanian Parliament) since 1996. From 2004 to 2005 he served as Minister of Finance, and from 2006 to 2008 he was Minister of Transport and Communications. In the 2009 elections for the office of President of the Republic of Lithuania the applicant was the candidate for the Lithuanian Social Democrats Party, at that time one of the biggest political parties in Lithuania. He came second, with 12% of the votes. Between 1999 and 2008 he was the deputy chairman of the party, and between 2009 and 2017 he was the chairman.", "6. At the material time, from 22 November 2012 to 21 November 2016, the applicant was the Prime Minister of Lithuania.", "Criminal investigation regarding the Government’s adoption of Resolution no. 1025", "7. In 2015 the Kaunas regional prosecutor’s office and the Special Investigations Service were conducting pre-trial investigation no. 03 ‑ 700012-15 – an investigation regarding possible abuse of office (Article 228 § 2 of the Criminal Code) – into allegations of political corruption relating to the process whereby some State territories had had their status as resorts – and thus protected territories – revoked by Government Resolution no. 1025, which was adopted on 23 September 2015. That Resolution was annulled on 2 May 2016 (see also paragraph 46 below).", "During that investigation a court authorised the recording of R.M.’s telephone conversations; R.M. was the mayor of Druskininkai, a resort town. One of his conversations was with the applicant (see paragraph 8 below). The authorities also intercepted a number of other conversations between R.M. and the Minister of the Environment, the Minister of the Economy, the Chancellor of the Government and other State officials. During those telephone conversations the adoption of a Government resolution on the status of resorts was discussed.", "8. The intercepted telephone conversation between the applicant and R.M., which took place on 11 August 2015, went as follows:", "“[The applicant] – Yes. I am listening to you.", "R.M. – Prime Minister, as concerns the Government resolution which we discussed today, I have found out that it was not the one under consideration at yesterday’s meeting. That one concerned protected areas.", "[The applicant] – Well, not the one? Well?", "R.M. – No. Not the one.", "[The applicant] – I see.", "R.M. – This one recently has just left the Ministry of Justice, and now the Ministry of the Environment must submit it to the Government; however, it is unclear how long they will take to do it.", "[The applicant] – I see. OK then. I will [move things along] then.", "R.M. – This is not the one. And the date is not needed for that one.", "[The applicant] – OK.", "R.M. – Since the adoption.", "[The applicant] – Well, because there were a lot of discussions during the submission, so", "R.M. – Yes, yes, but there are different things in it, but not that one. 343.", "[The applicant] – Well, OK. I see. Thanks then.", "R.M. – Thank you.”", "9. In the context of that pre-trial investigation, on 10 February 2016 the applicant was questioned as a witness. The applicant stated that a working relationship had existed between him and R.M.: the latter was the President of the Municipalities’ Association, the mayor, and also deputy chairman of the same political party. The applicant stated “I have no informal communication with R.M.” ( Neformaliai su juo nebendrauju ). The applicant did not deny that the conversation (see paragraph 8 above) had taken place. He stated that he had not performed any action to accelerate the Government Resolution of 23 September 2015 being submitted for adoption. He also stated that he did not think that that resolution had been in any way beneficial to R.M.’s personal interests.", "10. On 12 November 2015 the Seimas passed resolution no. XII-2017 “On granting the Seimas provisional investigation commission’s powers to the Seimas Anti-Corruption Commission”, instructing its Anti-Corruption Commission to conduct a parliamentary inquiry in order to ascertain and provide a conclusion as to the circumstances on 23 September 2015 in which the Government had adopted Resolution no. 1025, which was just before the court hearing of 29 September 2015, and which had partly annulled the Government’s earlier Resolution on protection of resort zones (for details see Povilonis v. Lithuania (dec.), no. 81624/17, §§ 16, 64-67, 7 April 2022). The Seimas considered that Government Resolution no. 1025 could have aggravated the possibilities to protect the public interest ( ar taip nebuvo apsunkintos galimybės ginti viešą interesą ) in the court proceedings related to possibly unlawful construction in the Vijunėlė park territory, and that Resolution no. 1025 could have been adopted without having followed appropriate procedures (ibid.).", "11. On 23 February 2016 the Seimas Anti-Corruption Commission, referring to Article 4 § 1 (1) of the Law on the Seimas Provisional Investigation Commissions (see paragraph 40 below), asked the prosecutor to provide information about when the criminal investigation, regarding possible influence on civil servants when adopting the aforementioned Government resolution, would be completed and a procedural decision that had been taken.", "12. By a decision of 29 February 2016, the prosecutor discontinued the pre-trial investigation on the basis of Article 3 § 1 (1) of the Code of Criminal Procedure, that is, that no actions which could be characterised as a crime had been performed. The prosecutor’s decision contained transcripts of the telephone conversation between the applicant and R.M. (see paragraph 8 above), as well as transcripts of other telephone conversations (see paragraph 7 above).", "13. On the same day, complying with the earlier request from the Seimas Anti-Corruption Commission, the prosecutor sent the commission a copy of the decision to discontinue the criminal proceedings. As later indicated by the prosecutor during the subsequent criminal proceedings (see paragraph 26 below), and as it transpires from the documents in the Court’s possession, the cover letter typed by the prosecutor and addressed to the commission did not specify that material from the pre-trial investigation could not be disclosed to the public.", "14. The same day the prosecutor also sent a copy of his decision to the Chief Official Ethics Commission ( Vyriausioji tarnybinės etikos komisija ) (see also paragraphs 34 and 35 below). He referred to Article 214 § 6 of the Code of Criminal Procedure (see paragraph 43 below) and considered that the material gathered during the pre-trial investigation showed that there had been a possible breach of other laws, such as the Law on the Adjustment of Public and Private Interests in the Public Service ( Viešųjų ir privačių interesų derinimo valstybinėje tarnyboje įstatymas ) and the Code of Conduct for State Politicians (see paragraph 39 below).", "Disclosure of the applicant’s telephone conversation with R.M.", "15. On 1 March 2016 the Seimas Anti-Corruption Commission held a hearing which was open to the public. Some twenty journalists were present at that hearing, including the journalist V.D., who had written articles for the Internet news portal Delfi. The Commission discussed the pre-trial investigation materials.", "16. On the evening of the same day the Internet news portal Delfi published an article by V.D. entitled “Juicy details in the conversations that were made public: I am fed up here, but at least [I can] relax at your place for an hour or so” ( Išviešintuose pokalbiuose – pikantiškos detalės: čia užknisa protą, pas tave nors užsimiršti valandai kitai ). The article made public extracts from the transcripts of the telephone conversation between the applicant and R.M. (see paragraph 8 above), as well as extracts from some of the other telephone conversations intercepted by the law-enforcement officials in the context of pre-trial investigation no. 03-7-00012-15 which had been reproduced in the prosecutor’s decision of 29 February 2016.", "The article discussed the circumstances of the adoption of Government Resolution no. 1025 (see paragraph 7 above), and suggested that “nearly half of the Government, including the Prime Minister, were dancing to the music played by the mayor R.M. concerning the business affairs of the so-called Vijūnėlė manor”. The article also referred to the Chairman of the Anti-Corruption Commission stating that the story of the so-called Vijūnėlė manor was a circumstance that allowed for the disclosure of not only possible crimes, but also possible violations of ethics, abuse of power or disciplinary violations by civil servants.", "Later on, this information was republished by the biggest news portals in the country, as well as aired on television channels (see also paragraph 57 below).", "Criminal proceedings regarding the disclosure of the telephone conversations to the public", "17. On 2 March 2016 the applicant lodged a complaint with the Prosecutor General, asking that the persons responsible for disclosing to the media the information which was of restricted use be brought to justice.", "On 1 April 2016, when questioned as a victim during the pre-trial investigation, the applicant pointed out that criminal investigation no. 03-7-00012-15 had been discontinued, and that in that criminal investigation he had had the procedural status of a witness. He noted that, under Lithuanian law, the use of pre-trial investigation material was strictly regulated, and the unlawful disclosure of such material was punishable. Under the Constitution, as well under the European Convention on Human Rights, a person’s correspondence and telephone conversations were inviolable. Such information which was collected by applying criminal-intelligence measures had to be destroyed once the criminal investigation had been discontinued.", "18. That being so, the applicant also stated that “data about [his] private life [had] not been disclosed, given that during the telephone conversation [in question] [he] and R.M. [had] discussed only work-related matters, in particular, a specific resolution by the Government”. He nevertheless considered that the disclosure of his telephone conversation to the media had breached his rights as a politician and a private person, since because of that he, as a politician and a private person, had suffered serious psychological damage, for there had been a great deal of negative writing about those telephone conversations in the press. The applicant pointed out that this would “clearly have an impact on [his] career as a politician, and on the Social Democrats Party led by [him]”. He also stated that the disclosure of the telephone conversation had had negative consequences for him as a private person, since when attending certain events he had heard several negative comments regarding those disclosed telephone conversations, despite the fact that there had been nothing criminal in the conversations, and the criminal proceedings which had examined those conversations had been discontinued. The applicant considered that the telephone conversations had been made public for political gain – to harm him as a person, the Social Democrats Party and the Government. He thought that it was the Anti-Corruption Commission which was “most liable” for that disclosure. Lastly, he pointed out that the telephone number for which calls had been intercepted had been his work mobile telephone number, which had been issued to him when he had become a member of the Seimas, and that that number had not been publicly available.", "19. On an unknown date R.M. also lodged an application with the Prosecutor General, complaining about the disclosure of the pre-trial investigation material at the Seimas Anti-Corruption Commission hearing of 1 March 2016. He was granted the procedural status of a victim in the context of that pre-trial investigation. The mayor R.M. considered that the disclosure of his telephone conversations had been damaging to his reputation as a politician, because it had intentionally created a negative opinion about him and had tendentiously provided distorted information, without reflecting the essence of the conversations.", "20. On 7 March 2016 the Minister of the Environment also lodged an application with the Prosecutor General, in which he complained about the disclosure of the pre-trial investigation material. His arguments were similar to those of the applicant.", "21. On 10 March 2016 the Prosecutor General’s Office started pre-trial investigation (no. 01-2-00056-16) into the possible disclosure by the members of the Seimas Anti-Corruption Commission of non-public material from the pre-trial investigation file (Article 247 of the Criminal Code), and also into the possible disclosure of information regarding the private life of an individual (Article 168 § 1 of the Criminal Code).", "22. When questioned as a witness on 30 March 2016, the journalist V.D. stated that she had been present at the Commission’s hearing of 1 March 2016; this had not been the first hearing on the matter of the adoption of the Government resolution, and also not the first hearing at which she had been present. In V.D.’s opinion, the hearing of 1 March 2016 had been public: some twenty journalists had been present. She said that during the hearing the members of the Anti-Corruption Commission had publicly cited and discussed the transcripts of the telephone recordings of the conversations between the applicant and R.M., and between R.M. and the Minister of the Environment, as well as other telephone conversations. The journalist stated that the quotes from those telephone conversations which she had used afterwards in her article (see paragraph below) were the ones that she had heard during that public hearing of the Anti-Corruption Commission.", "23. By a decision of 5 October 2016, the prosecutor discontinued the pre–trial investigation, on the grounds that no crime had been committed. The prosecutor found that the telephone conversation between the applicant and R.M., as well as that between R.M. and the Minister of the Environment, which had been reproduced in the prosecutor’s decision to discontinue criminal case no. 03 ‑ 7 ‑ 00012 ‑ 15, concerned work-related matters, and did not fall within the sphere of private life. Neither the applicant nor the Minister of the Environment had proved the opposite, nor had the mayor of Druskininkai.", "24. In reaching that conclusion, the prosecutor also relied on the Constitutional Court’s ruling of 23 October 2002 to the effect that all the persons in this case – the applicant (as the Prime Minister), the Minister of the Environment – and the mayor of a town, had been public figures to whom higher moral standards applied (see paragraph 45 below). Moreover, according to the Constitutional Court’s ruling of 8 May 2000, the activities of State and municipal officials linked to the implementation of functions of the State and municipal authorities and administrations were always of a public nature (see paragraph 44 below). As could be seen from the situation at hand, the question of adoption of the Government’s resolution abolishing resort zones had had great importance for the public, therefore there had been a public interest, protected by the Constitution, for society to be informed about such pressing matters.", "25. As to Article 247 of the Criminal Code – the unlawful disclosure of material in a pre-trial investigation file – referring to the case-law of the Supreme Court, the prosecutor considered that only participants in criminal proceedings could be held criminally responsible under Article 247 of the Criminal Code (see paragraph 42 below). The members of the Seimas Anti-Corruption Commission and the representatives of the media who had been present at the commission’s hearing of 1 March 2016 had not been participants in the criminal proceedings in case no. 03 ‑ 7 ‑ 00012 ‑ 15, and therefore they could not be subjected to criminal liability under Article 247 of the Criminal Code. The prosecutor also noted that the members of the Anti–Corruption Commission had not been prohibited from disclosing the pre-trial investigation data, and they had not been warned of any criminal liability under Article 247 of the Criminal Code, so it would be unreasonable to hold that they could be subjected to such criminal liability. The same went for the journalist V.D. Moreover, the commission’s hearing of 1 March 2016 had been public, and in the prosecutor’s view, under the Law on the Seimas Provisional Investigation Commissions, there had been no reason to organise it as a non-public hearing.", "26. Lastly, one could also not question the actions of the prosecutor who had sent the decision to discontinue the criminal proceedings (see paragraph 13 above) to the Anti-Corruption Commission. The commission had had the right to obtain such information, pursuant to Article 4 § 1 of the Law on the Seimas Provisional Investigation Commissions (see paragraph 40 below). In taking a decision to send a copy of that decision to the Anti-Corruption Commission, and in not warning the commission that the data from the pre-trial investigation file was not to be made public, the prosecutor, who had relied on Article 214 § 6 of the Code of Criminal Procedure (see paragraph 43 below), had also not breached the requirements applicable to the criminal proceedings. It followed that no crime under Article 247 had been committed.", "27. The applicant, who relied on Article 8 of the Convention, and the Minister of the Environment then appealed against the prosecutor’s decision, but on 23 November 2016 a higher prosecutor rejected their appeals.", "28. On 29 December 2016 the applicant’s appeal was rejected by the Vilnius City District Court, which considered that the prosecutors’ decisions had been well reasoned, and that the telephone conversation in question (see paragraph 8 above) could not be considered to have contained information about a person’s private life. Rather, that information related “exclusively [to] work and [public] service-related matters”, therefore the element of the crime set out in Article 168 of the Criminal Code was not present.", "29. On the basis of an appeal lodged by the applicant, the Vilnius Regional Court then returned the case for fresh examination, on the grounds that the first-instance court had not answered the applicant’s complaint of a possible breach of Article 247 of the Criminal Code, that is, the complaint that the pre-trial investigation had not established who had disclosed the pre-trial investigation material to the media.", "30. On 10 February 2017 the Vilnius City District Court dismissed the applicant’s appeal. The court found that the conversation between the applicant and the mayor had not related to the applicant’s private life: they had only discussed the circumstances of the adoption of a Government resolution related to territorial planning, and not any matters relating to their personal or family life, or any other spheres of private life. Furthermore, there had been a professional relationship between them – one was the Prime Minister and the other was a mayor. In addition, R.M. was deputy chairman of the same political party to which the applicant belonged. In addition, the applicant himself, when questioned during the first criminal investigation on 10 February 2016, had stated that he had not maintained any relations with the mayor unrelated to work (see paragraph 9 above). Likewise, when questioned on 1 April 2016 in the context of the second criminal investigation (see paragraph 18 above), the applicant had stated that during the telephone conversation in question information related to his private life had not been divulged. Thus, finding that no private life had been discussed in the relevant conversation, the court held that the publication of the transcript of the conversation could not have infringed the applicant’s right to respect for his private life. It further referred to the Court’s judgments in Craxi v. Italy (no. 2) (no. 25337/94, 17 July 2003) and Drakšas v. Lithuania (no. 36662/04, 31 July 2012), as stating the principle that public figures were inevitably more exposed to scrutiny, but nevertheless should be guaranteed the right to privacy. The court observed that because of his position as Prime Minister, his work-related activity and his participation in public life, the applicant was a prominent politician, and that the pre-trial investigation and the telephone conversation had concerned a matter of public interest – allegations of corruption in territorial planning, which society had a legitimate interest in knowing about. Accordingly, no issue could arise under Article 168 § 1 of the Criminal Code.", "31. The Vilnius City District Court also noted that the members of the Seimas Anti-Corruption Commission had not been party to criminal proceedings no. 03-7-00012-15. Nor had they been warned not to disclose the material from the pre-trial investigation file, or warned about possible criminal liability under Article 247 of the Criminal Code. At the same time, those persons had had a right to see the material from the pre-trial investigation file, as noted in Article 4 § 1 of the Law on the Seimas Provisional Investigation Commissions. The prosecutor, once asked to do so, had been obliged to provide the commission with a copy of his decision. In the court’s view, this meant that the commission members could not be held liable under Article 247 of the Criminal Code for having disclosed the material from that case.", "32. By a final ruling of 20 March 2017, the Vilnius Regional Court rejected the applicant’s appeal and left the first-instance court’s decision unchanged. The disclosed information had been linked to the professional activity of a State official. The applicant had been a public figure because of the duties he had been performing at the relevant time, as the Prime Minister. Given that Article 168 § 1 of the Criminal Code protected only information of a private nature, and that the information disclosed related to a certain event – the adoption of the Government’s resolution related to territorial planning, and the actions of certain State officials – this information, which had attracted much public interest, was not private, and its disclosure could not attract criminal liability under the above-mentioned provision of the Criminal Code.", "33. As to the other provision of the Criminal Code, Article 247, the Vilnius Regional Court shared the first-instance court’s conclusions in their entirety (see paragraph 31 above).", "The applicant’s exoneration by the Chief Official Ethics Commission", "34. By a decision of 18 March 2016, the Chief Official Ethics Commission (hereinafter “the Ethics Commission”) informed the prosecutor (see paragraph 14 above) that it would not institute an investigation into the circumstances of the adoption of Government Resolution no. 1025 of 23 September 2015.", "35. The Ethics Commission pointed out that the prosecutor’s decision to discontinue criminal proceedings (see paragraphs 7 and 12 above) lacked any concrete data or circumstances which would prove that the persons mentioned in that decision – the Minister of the Environment K.T., the Minister of the Economy E.G., the applicant (as the Prime Minister) and the Chancellor of the Government A.M. – had had any pecuniary or non-pecuniary interest in having that Government resolution adopted. The Ethics Commission also pointed out that the Government resolution in question had been a legal act of “general application, in contrast to individual legal acts” ( norminis, o ne individualus teisės aktas ), and thus it had not had a concrete beneficiary. The Ethics Commission also held that the above-mentioned persons had only been fulfilling their work-related duties. As for R.M., he was not a member of the Government, and did not participate in passing legal acts as part of that State institution. The prosecutor’s decision likewise lacked information proving that the adoption of that Government resolution would have had an impact on R.M.’s private property or on him personally. The Ethics Commission lastly emphasised that, pursuant to the case-law of the Supreme Administrative Court, a conflict of interest could not be established merely on the basis of suppositions or guesses." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "36. Article 22 of the Constitution protects private life.", "37. The Law on Providing Information to Society ( Visuomenės informavimo įstatymas ) read as follows at the relevant time:", "Article 14. Protection of Private Life", "“1. In producing and disseminating public information, it is mandatory to ensure a person’s right to have his personal and family life respected.", "...", "3. Information concerning private life may be published without a person’s consent in cases where the publication of the information does not cause harm to the person or where the information assists in uncovering violations of the law or crimes ... In addition, information about the private life of a public figure may be disseminated without his or her consent, if such information discloses circumstances of that person’s private life or his or her character traits which [are of] public interest.”", "38. The Law on the Government ( Vyriausybės įstatymas ) at the material time read:", "Article 4. Basic Principles of the Activities of the Government", "“The Government shall ground its activities on the principles of collegiality, democracy, lawfulness and openness.”", "39. At the material time the Code of Conduct for State Politicians ( Valstybės politikų elgesio kodeksas ) read:", "Article 2. Definitions", "“1. “State politicians” shall mean persons who are elected, in accordance with the procedure set forth by laws, as a member of the Seimas, President of the Republic, a member of the European Parliament, a member of a municipal council or a mayor of a municipality, or appointed as a member of Government or a deputy mayor of a municipality.", "...", "4. “Private life” shall mean the personal, home and domestic, and intimate life of a State politician, as well as his activities not related to the duties of a State politician, political activities or the institution in which he holds office. The conduct or personal features of a State politician that are related to certain circumstances of his private life and are likely to have influence over public interests shall not be considered [to constitute] private life.", "...", "6. “Political activities” shall mean a State politician’s actions, conduct and participation in the activities of representative and executive institutions during his tenure.", "7. “Public interests” shall mean a public interest that in public life a politician would act in compliance with the Constitution of the Republic of Lithuania and its legal acts and would take decisions only for the benefit of the State, a municipality and the society.", "8. “Public life” shall mean a State politician’s political activities as well as a State politician’s conduct not related to his private life.”", "Article 4. Principles of Conduct of State Politicians", "“In public life, a State politician shall adhere to the following principles of conduct:", "...", "3) honesty – shall perform his duties honestly and adhere to the highest standards of conduct, and avoid situations that may influence taking the decisions that may raise doubts in the society;", "4) transparency and publicity – when taking decisions, shall not raise doubts as to honesty, reveal the motives of his conduct and decisions to society, always upkeep the principles of openness and publicity, except for the cases specified by laws restricting the disclosure of information, and declare his private interests;", "...", "6) exemplarity – shall act properly in public and adhere to the universally accepted norms of morality, morals and ethics;", "7) selflessness – shall serve the state and public interests, avoid any apparent or real conflict of public and private interests, and, in the event of such conflict, undertake all the required measures to resolve them promptly and make them coincide with the public interests, and shall not use his post or position seeking to influence the decision to be taken by another person, which might be beneficial for the politician or a person closely related to him; ...”", "40. The Law on the Seimas Provisional Investigation Commissions ( Seimo laikinųjų tyrimo komisijų įstatymas ) read as follows at the material time:", "Article 4. Rights of the Commission", "“1. The Commission has the right:", "1) to be familiarised with all the information relevant to the investigation, and to receive documents, data or information from all State and other institutions ... even if they contain State or ... professional secret[s] ...", "...", "5) having agreed with General Prosecutor’s Office ... or pre-trial investigation institution, to see the criminal case-file or other materials or documents that are [in the prosecutor’s] possession; ...”", "41. The Law on the Seimas Anti-Corruption Commission ( Seimo antikorupcijos komisijos įstatymas ), in so far as relevant, reads as follows:", "Article 2. Tasks of the Commission", "“The tasks of the Commission shall be as follows:", "1) to investigate the phenomena of corruption and instances linked with it, adopt decisions on the basis of the issues being examined and control how the institutions are implementing them;", "2) analyse the decisions of State and municipal institutions and agencies and enterprises, which create the conditions for corruption and crimes and other violations of the law in the economic and financial systems, to seek that such decisions be abolished; ...”", "Article 3. Rights of the Commission", "“1. The Commission shall have the right to:", "1) obtain the necessary information from ... General Prosecutor’s Office, Supreme Court of Lithuania, State Control, Special Investigation Service, State Security Department and other State and municipal institutions, enterprises, agencies and organisations;", "...", "3) invite State officers and civil servants and other persons to meetings;", "...", "5) in accordance with the procedure established by laws to obtain information, which comprises official or State secrets ...”", "Article 6. Procedure in Respect of the Commission’s Work", "“2. The Commission’s hearings shall, as a rule, be held publicly. Closed hearings, which may only be attended by persons invited by the Commission, may be held as per a decision of the Commission. ...”", "42. At the material time the Criminal Code read:", "Article 168. Unauthorised Disclosure or Use of Information About a Person’s Private Life", "“1. A person who, without another person’s consent, makes public [or] uses for his own benefit or for the benefit of another person information about the private life of another person, where he gains access to that information through his service or profession or in the course of performing a temporary assignment ...,", "shall be punished by community service, a fine, restriction of liberty, arrest or imprisonment for a term of up to three years.”", "Article 247. Unauthorised Disclosure of Pre-trial Investigation Data", "“A person who discloses pre-trial investigation data prior to the hearing of a case at a court sitting, without the authorisation of a judge, prosecutor or pre-trial investigation officer investigating the case, shall be considered to have committed a misdemeanour, and shall be punished by community service, a fine, restriction of liberty or arrest.”", "43. At the material time the Code of Criminal Procedure read:", "Article 177. Non-disclosure of Pre-trial Investigation Data", "“1. Information about a pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s authorisation, and only to such an extent as is determined permissible...", "2. Where necessary, the prosecutor or the official [in charge] of the pre-trial investigation warns the participants in the [criminal] proceedings or other persons who have seen the actions performed in the pre-trial investigation proceedings that it is forbidden to make public the information from the pre-trial investigation. In such cases, a person is warned about criminal liability under Article 247 of the Criminal Code and provides a signature [confirming this].”", "Article 214. Order Discontinuing a Pre-trial Investigation", "“1. ... [T]he pre-trial investigation is discontinued by the prosecutor’s decision ...", "...", "6. If the pre-trial investigation material contains information about an administrative-law offence or a violation of a law provided for in other legal acts, when adopting the decision to discontinue the pre-trial investigation, the prosecutor transfers that material in accordance with the rules set out in the Code of Administrative Law Offences or rules set out in other legal acts ...”", "44. In its ruling of 8 May 2000 on operational activities, the Constitutional Court held:", "“The legal concept of private life is linked to the state of an individual when the individual may expect privacy, or with legitimate expectations of private life. When the person carries out actions of a public nature and comprehends this, or must comprehend this or is capable of understanding this, whether at home or on other private premises, then such actions of a public nature will not enjoy protection under Article 22 of the Constitution and Article 8 of the Convention, and the person may not expect privacy.", "The activities of State and municipal officials linked to the implementation of functions of the State and municipal authorit[ies] and administration[s] are always of a public nature.", "...", "The Constitutional Court notes that a person who commits criminal deeds or ones which are contrary to the law must not and may not expect privacy. The limits of protection of an individual’s private life disappear in cases when, through criminal or otherwise unlawful actions, [that individual] violates interests protected by law, [or] inflicts damage on particular persons, society or the State.”", "45. In its ruling of 23 October 2002 on protection of a public figure’s private life and a journalist’s right not to disclose a source of information, the Constitutional Court held:", "“8. ... [P]ersonal characteristics, behaviour and certain circumstances of the private life of persons participating in social and political activities may be of importance to public matters. The public’s interest in knowing more about these persons than others has a constitutional basis. That interest would not be secured if, in every particular case, when publishing information of public importance about the private life of a person participating in social and political activities, that person’s consent was necessary. Thus, the media may inform the public about such a person’s private life without [that person’s] consent, inasmuch as personal characteristics, behaviour and certain circumstances of that person’s private life may be of importance to public matters, and therefore the information published is of public importance. The person participating in social and political activities [must] anticipate more attention from the public and the media. Such persons, as a rule, are called public figures.", "Persons who, because of the office that they hold or the nature of the work that they perform, participate in public life should primarily be categorised as public figures. These are politicians, State and municipal officials [and] heads of public organisations. Other persons may also be considered public figures if their activity is of importance to public affairs.”", "46. By its ruling of 8 July 2016 on the procedure for adopting legal acts of the Government, and in the context of the adoption of Government Resolution no. 1025, the Constitutional Court held (summary by the Constitutional Court; see also Povilonis, cited above, § 67):", "“In the constitutional justice case at issue, [which was] initiated subsequent to the petition of the President of the Republic requesting an investigation into whether Government Resolution (no. 1025) of 23 September 2015 – whereby the Special Conditions for the Use of Land and Forests had been amended – was compliant with the Constitution and laws, in view of the procedure by which it had been adopted, the Constitutional Court ... noted that under the Constitution, legal acts must be passed in accordance with the established procedural law-making requirements, including the requirements established by the law-making subject itself. Institutions of State authority must also follow the requirements of publicity and transparency [in respect] of law-making procedures, deriving from the constitutional principle of responsible governance, which is to be interpreted in conjunction with the imperative obliging State institutions to serve the people ... Compliance with these requirements is an essential condition for public trust in the State and law, as well as for the responsibility of State authorities towards the public...", "While interpreting ... the Constitution ... the Constitutional Court has noted on more than one occasion that, when passing legal acts, the Government must observe the laws that are in force, including those establishing the procedure for adopting legal acts. [They] must follow the procedure for the drafting, assessment, coordination and consideration of Government resolutions, as well as [the procedure] for voting on them, which is established by laws. ... Under the Constitution, the stages and rules of the procedure for the adoption of legal acts of the Government as established in law and other legal acts must be observed while any draft legal act of the Government is being prepared, irrespective of whether this legal act is aimed at amending (correcting) the legal regulation, establishing a new one, or annulling the effective one.", "...", "The part of the case concerning the disputed Government Resolution’s [no. 1025] compliance with the Constitution and laws, in view of the procedure for its adoption, was dismissed, with regard to the fact that this Resolution was annulled by the Government Resolution of 2 May 2016 [in an effort] to dispel doubts as to [the disputed resolution’s] legitimacy. ... After the legal act in question had been removed from the legal system, the investigation into its compliance with the Constitution and laws, in view of the procedure for its adoption, would be an end in itself.", "The Constitutional Court noted that, as was obvious from the material of the case, in the course of adopting the Government Resolution in question, certain violations of the procedure for the preparation, coordination, consideration and adoption of legal acts of the Government could have been committed; additionally, according to the Constitutional Court, it was not obvious from the data in the case that there had been any exceptional circumstances objectively justifying the urgent placement – not agreed beforehand with the competent institutions – of the draft Resolution in question on the agenda of the Government’s sitting without the ordinary procedure established in the Rules of Procedure of the Government being followed.”", "47. On 12 December 2018 the enlarged chamber of the Supreme Court delivered a ruling in case no. e3K-7-471-403/2018. The case concerned a complaint by a business entity which had been lodged against the State Security Department in connection with information gathered under the Law on Intelligence and provided by the State Security Department to the Seimas Committee on National Security and Defence. The business entity had attempted to start civil proceedings for defamation of its business reputation, arguing that the information which the State Security Department had provided to the Seimas committee had been revealed to the media. The first-instance and appellate courts had refused to accept the business entity’s claim for examination.", "The Supreme Court, however, overturned those court decisions. The cassation court highlighted that the existing legal regulation, pursuant to which a Seimas committee had oversight of intelligence agencies and the Seimas Ombudsmen investigated complaints against intelligence officers’ actions violating human rights or freedoms, failed to ensure effective and efficient protection of the rights of the individual (in that case, professional reputation). Referring to the case-law of the Constitutional Court, and also relying on the Court’s case-law regarding Article 6 § 1, the Supreme Court also emphasised that the right to access to court was absolute.", "48. The Council of Europe Resolution (97) 24 on the Twenty Guiding Principles for the Fight Against Corruption, adopted by the Committee of Ministers on 6 November 1997, urges the States to ensure that the media have the freedom to receive and impart information on matters relating to corruption, subject only to limitations or restrictions which are necessary in a democratic society.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "49. The applicant alleged, in particular, that the release into the public domain of transcripts of an intercepted telephone call between him and a mayor had amounted to a breach of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private ... life ... and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "AdmissibilityThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The Government", "50. At the outset, the Government wished to point out that the applicant had not complained before the Court that his telephone conversation with R.M. had been intercepted unlawfully. Rather, the applicant had claimed a violation of his right to respect for his private life and correspondence, on account of the disclosure of that conversation to the Seimas Anti-Corruption Commission and its subsequent wide dissemination to the public. The Government also submitted that the applicant, if he had wished to do so, had been able to contest the lawfulness of the criminal-intelligence actions.", "51. The Government also pointed out that in order to seek redress for the alleged violation of his right to respect for private life and correspondence, the applicant had availed himself of only criminal-law remedies. He had not resorted to complaints to the institutions which monitored journalistic ethics, such as the Inspector of Journalistic Ethics or the Public Information Ethics Commission.", "52. Considering that criminal liability as an ultima ratio should be imposed not for every disclosure of private information, but only in cases of the most severe violations of private life, in the applicant’s case the effective protection at domestic level had not been reduced to only criminal measures. Thus, the applicant could have successfully sought the protection of his rights under civil law, by starting proceedings for breach of privacy against the media or the journalist in question. Besides, the applicant could also have sought compensation for damage from the State, for the allegedly improper handling of the pre-trial investigation material.", "53. In the alternative, the Government considered that the complaint was manifestly ill-founded, as the applicant had not experienced sufficiently serious adverse effects impacting his private life or correspondence for his complaint to raise an issue under Article 8 of the Convention (see also paragraph 73 below).", "(b) The applicant", "54. The applicant considered that the Government’s arguments as to the effectiveness of the remedies proposed by them were devoid of substance.", "55. Firstly, as to the Government’s suggestion that the applicant could have sued the intelligence agencies, it had to be emphasised that by the ruling of 12 December 2018 the Supreme Court had established that the current legal regulation – which stated that a Seimas committee had parliamentary oversight of intelligence agencies, and the Seimas Ombudsmen investigated complaints against the actions of intelligence officers which possibly violated human rights or freedoms – failed to ensure an effective and efficient defence of the rights of the individual that could be protected in court (see paragraph 47 above). It followed that, insofar as it concerned the claim for damages against the intelligence agencies, the applicant had had no effective way in which to defend his rights before the national courts.", "56. Secondly, the applicant viewed the Government’s suggestion that he should have instituted proceedings against the journalist in question as an effort to shift onto the media the blame for publishing the information that had come to their knowledge. However, it was not the press which had failed to carry out its duty to prevent the disclosure (especially the disclosure to the media) of the applicant’s telephone conversation that had been recorded during the criminal-intelligence operation. Undoubtedly, it was the State and not the media which was responsible for such an event.", "57. Thirdly, since the applicant’s main complaint concerned the fact that the intelligence information had been revealed to the media and had not been protected from public exposure, a complaint to the institutions which monitored journalists’ ethics would likewise have been irrelevant. The institutions referred to by the Government (see paragraph 51 above) had not had the capacity to guarantee the security of intelligence-related information. In other words, the applicant’s issue was not with the media which had published the information that had been provided, but rather with the State authorities whose actions had resulted in the violation of his rights. Therefore, the action of addressing any institutions with a complaint regarding the journalist’s actions had to be viewed as irrelevant to the issue raised in the application to the Court.", "58. Fourthly, the applicant wished to highlight that his efforts to lodge complaints with the prosecutors and the domestic courts in respect of the matter of the disclosure of his telephone communications had been unsuccessful.", "59. Lastly, the applicant noted that in principle there was no reason why the notion of “private life” should be taken to exclude professional activities, and that professional life was part of the zone of interaction between a person and others which, even in a public context, might fall within the scope of “private life” (he cited Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 165-67, ECHR 2013, and Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV). In his case, the effect of disclosure had been significant.", "The Court’s assessment", "60. The Court notes at the outset that the applicant has fully exhausted the criminal-law avenue by having pursued proceedings regarding the disclosure of his telephone conversation (see paragraphs 17-33 above). Whilst accepting that, regarding cases concerning alleged breach of privacy, a criminal-law remedy is not always required and the civil-law nature remedies could be seen as sufficient (see, mutatis mutandis, Söderman v. Sweden [GC], no. 5786/08, § 85, ECHR 2013), the Court observes that in the present case the criminal proceedings were opened in respect of not only the alleged breach of the applicant’s privacy, but also another criminal act, namely the disclosure of the pre-trial investigation material to the media (see paragraph 21 above). Accordingly, the Court cannot find that the criminal-law avenue was entirely inappropriate as a remedy for the applicant’s complaint, especially as the applicant’s complaints were accepted for examination and scrutinised by the prosecutors and the courts.", "61. The Court also takes note of the applicant’s argument that the actions of intelligence agencies could not be challenged in court, at least until the very recent ruling by the Supreme Court (see paragraph 47 above), an argument which finds support in that ruling. The Court therefore cannot hold that the applicant, who lodged his application with the Court before that ruling by the Supreme Court, was obliged to pursue proceedings against the intelligence agencies.", "62. The Court also shares the applicant’s view (see paragraph 57 above) that, given the circumstances of his case and his opinion that State institutions were responsible for his grievance, he was not obliged to lodge a complaint with the bodies which supervised the activities of the media.", "63. The Court observes that the Government did not explicitly argue that Article 8 of the Convention was not applicable, as such, to the applicant’s complaint. Rather, they submitted that the disclosure of the applicant’s telephone conversation with the mayor had had a rather limited impact on his right to respect for private life and correspondence, because the content of that intercepted conversation had been related to purely public matters (see paragraph 53 above and paragraph 73 below). Be that as it may, the Court reiterates that Article 8 of the Convention protects the confidentiality of “private communications”, whatever the content of the correspondence concerned, and whatever form it may take. This means that what Article 8 protects is the confidentiality of all the exchanges in which individuals may engage for the purposes of communication (see Frérot v. France, no. 70204/01, § 53, 12 June 2007; Michaud v. France, no. 12323/11, § 90, ECHR 2012; and, more recently, Klaus Müller v. Germany, no. 24173/18, § 37, 19 November 2020). Article 8 of the Convention also covers calls made from office telephones (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997 ‑ III). Furthermore, Article 8 of the Convention does not use, as it does for the word “life”, any adjective to qualify the word “correspondence”. Indeed, the Court has already held that, in the context of correspondence in the form of telephone calls, no such qualification is to be made (see Huvig v. France, 24 April 1990, §§ 8 and 25, Series A no. 176 ‑ B, and Niemietz v. Germany, 16 December 1992, § 32, Series A no. 251 ‑ B). Accordingly, and recalling that the question of applicability is an issue of the Court’s jurisdiction ratione materiae, and that therefore the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage (see Denisov v. Ukraine [GC], no. 76639/11, §§ 92 and 93, 25 September 2018), the Court finds that Article 8 of the Convention is applicable to the applicant’s complaint about disclosure of the content of his telephone conversation with R.M.", "64. This complaint is therefore neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "65. The applicant complained that the disclosure to the media of the transcripts of his telephone conversation had infringed his right to respect for his correspondence and had affected his right to respect for his private life.", "66. Initially, the applicant could not have known that his telephone conversation was being intercepted. Moreover, he had never been warned or even suspected that the transcripts of such a conversation would afterwards be disclosed to the public, without any warning or grounds. Likewise, it was irrelevant to examine the fact that, in the present case, the applicant’s right to respect for privacy and correspondence had been affected by the disclosure of only one telephone call, rather than by the systematic monitoring of his communications at his workplace. Nor should such a fact be considered a mitigating circumstance.", "67. Whilst not debating his status as a public figure, the applicant wished it to be noted that even a public figure had a right to enjoy a certain degree of privacy. Even if the Government contended that he had unreasonably expected a “high degree of privacy” (see paragraph 73 below), in fact he had been deprived of any privacy whatsoever. Disclosing transcripts to the media of the telephone conversation in question, which had been recorded in the course of criminal-intelligence activities, could not be assessed as “limiting” privacy in a manner measurable by degree, as in fact it had to be considered as (completely) denying his privacy as regards that particular telephone conversation.", "68. The applicant further contested that the interference had met the requirements of Article 8 § 2 of the Convention.", "69. Firstly, he was dissatisfied with the prosecutor’s decision to permit the examination of the information, gathered during the secret surveillance, at a public hearing of the Seimas Anti-Corruption Commission, where the content of that conversation was disclosed (see paragraph 15 above). For the applicant, such decision lacked a legal basis and contradicted the imperative provisions set out in Code of Criminal Procedure regarding the prohibition on releasing information gathered during secret surveillance into the public domain. Additionally, the disclosure by members of the Seimas Anti-Corruption Commission of the material in the criminal investigation file to the media had not had a basis in law, since Article 177 of the Code of Criminal Procedure explicitly prohibited the disclosure of pre-trial investigation material in the absence of a prosecutor’s authorisation (see paragraph 43 above), and there had been no such authorisation in his case. Besides, Article 161 of that Code imposed a requirement that all the information gathered about a person’s private life be immediately destroyed when criminal proceedings were terminated. The applicant thus argued the data collected during the pre-trial investigation in question, as well as the information relating to his intercepted telephone conversation, should have been destroyed immediately after the prosecutor had decided to terminate the pre-trial investigation, or at least kept secret if it had then been transferred to assist with the investigation of other potential crimes under Article 214 § 6 of the Code. Yet, notwithstanding the fact that neither the applicant nor any other person had been charged with a crime in that criminal investigation, on the pretext of fighting corruption, the information gathered via the interception of telephone communications had been made public, which had resulted in the applicant’s intercepted telephone conversation being published and republished on the biggest news portals in the country, as well as aired on television channels.", "70. Secondly, the Government had not provided any proof or reasonable explanation as to how the disclosure of his intercepted telephone conversation to the media had helped or could have helped prevent crime or protect the rights and freedoms of others, for he had never been a suspect in the criminal proceedings. There had been no public interest in disclosing his secretly recorded telephone conversation, because during the pre-trial investigation in question the prosecutor had established that no crime had been committed (see paragraph 12 above). Neither the applicant nor any other person involved in that investigation had been charged with any criminal act. Thus, there were no objective grounds to assert that disclosing the material from a discontinued criminal investigation could achieve one of the aims listed in Article 8 § 2 of the Convention.", "71. That being so, he did not question whether or not it had been legitimate to intercept his telephone conversation, or lawful for the prosecutor to transfer the transcript of that conversation to the commission for further investigation. However, the examination of his telephone conversation could have been carried out in a closed hearing of the Seimas Anti-Corruption Commission, rather than in a public one, and the former option would not have been a threat to public safety or made the parliamentary investigation less effective. The applicant had not been informed about the Seimas Anti-Corruption Commission hearing prior to that hearing taking place, and consequently he could not have asked for a closed hearing.", "72. Lastly, the applicant wished to highlight that the Court had already found against the Government when, in a case which he considered to be similar, it had held that information about a pre-trial investigation (an intercepted telephone conversation) had to remain confidential. The conversation in question had become known to the public (the media), which had not been in accordance with the law and had given rise to a violation of Article 8 of the Convention; the applicant referred to Drakšas v. Lithuania (no. 36662/04, § 60, 31 July 2012). Therefore, one could conclude that the Government had repeatedly failed to comply with their duties under the Convention.", "(b) The Government", "73. The Government took the view that in the present case it could not be considered that the applicant had experienced sufficiently serious adverse effects impacting his private life or correspondence for his complaint to raise an issue under Article 8 of the Convention. Admittedly, a person might expect a certain degree of privacy, even at work. However, the applicant, as the Prime Minister – a person who, in addition to being involved in purely public matters at the workplace, was also under constant supervision for security reasons – could not have expected a “high degree of privacy”. Furthermore, besides the fact that the intercepted conversation had been related to a telephone call to the applicant’s work telephone number, the content of that intercepted conversation had been related to purely public matters – the legislative process regarding the adoption of a certain resolution by the Government. Given that the content of the disclosed telephone call had been related to the applicant’s official duties, under the Code of Conduct for State Politicians, it did not fall within the scope of the politician’s private life. Another point to note was that the present case was not related to any systematic monitoring of the applicant at his workplace, as there had been only one telephone call which had been lawfully intercepted in the course of the authorised check on R.M.’s telephone communications. What was of the utmost importance was the fact that the applicant himself did not consider that his conversation with R.M. had been informal or related to private issues. Moreover, there had been no negative consequences, such as the applicant incurring disciplinary liability on account of the fact that the media had reported on the pre-trial investigation, an investigation which had been instituted in respect of the actions of other persons. Lastly, in so far as the applicant alleged that there had been negative consequences for the Lithuanian Social Democrats Party or the Government (see paragraph 18 above), those could not be relied on for the purposes of the current application, since any alleged violation had to be directly related to the applicant as the victim.", "74. If the Court were to find that there had been an interference with the applicant’s right to respect for his correspondence and his private life, the Government considered that the interference had met the requirements under the second paragraph of Article 8.", "75. The relevant information had been lawfully obtained under the rules regulating criminal intelligence, and subsequently it had been declassified in order to be used for the purposes of instituting a pre-trial investigation into a case of alleged political corruption in the context of the adoption of the Government resolution in question. It had been legitimate to include the applicant’s telephone conversation in the text of the prosecutor’s decision to terminate the pre-trial investigation. Further, the Code of Criminal Procedure provided for a prosecutor’s right to transfer such material to the competent authorities upon a pre-trial investigation being terminated, should the prosecutor consider that an administrative or other offence might have been committed. The Anti-Corruption Commission had a statutory right to receive and publicly examine material from criminal cases which related to alleged acts of corruption. One had to bear in mind that whilst it was reasonable to expect that purely personal information which had no relevance to a criminal case had to be destroyed, this tenet should not be applied too broadly, in order not to undermine the possibilities of the effective administration of justice.", "76. This was precisely the situation in the instant case, and the prosecutor had thus reasonably transferred the material to the Anti-Corruption Commission without imposing the requirement of confidentiality. In these circumstances, the disclosure of the content of the prosecutor’s decision at the meeting of the commission, which had resulted in the applicant’s telephone conversation with R.M. being widely disseminated, had not amounted to a breach of the Convention. The Government compared the instant case to the facts in Drakšas (cited above, § 61), where the Court had also found no violation of the Convention due to the disclosure of that applicant’s intercepted conversations within the framework of proceedings before the Constitutional Court.", "77. As to the aims of the disclosure of the pre-trial investigation material, the relevant information had been gathered to ensure the proper administration of justice and investigate acts related to corruption, the latter aim also being within the purview of the examination by the Seimas Anti-Corruption Commission. Accordingly, any alleged interference with the applicant’s rights under Article 8 of the Convention had been imposed to prevent crimes, and to ensure the protection of the rights and freedoms of others.", "78. As to the hearing of the Seimas Anti-Corruption Commission, although the law provided for the possibility to ask for a closed hearing, in this case, no such request had been submitted. The press had therefore been allowed to be present. The Government also pointed out that in accordance with the Code of Criminal Procedure, a prosecutor was vested with the authority to take a decision concerning the scope of the confidentiality of pre-trial investigation material.", "79. The Government further referred to the guiding principles for the fight against corruption, adopted by the Committee of Ministers, whereby it was recommended that it should be ensured that the media have the freedom to receive and impart information on matters relating to corruption (see paragraph 48 above). In that context, not only did the media have the task of imparting such information, but the public also had the right to receive information about corruption-related issues. In certain circumstances, society’s right to information on the behaviour and activities of public figures prevailed over an applicant’s right to protection of public image (the Government referred to Craxi v. Italy (no. 2) (no. 25337/94, § 64, 17 July 2003).", "80. Despite the fact that no person had been convicted in relation to the circumstances of the adoption of Government Resolution no. 1025, the Constitutional Court had nevertheless identified that certain violations could have been committed in respect of the preparation, coordination and adoption of legal acts (see paragraph 46 above). In the Government’s view, it could not therefore be held that the investigation into the circumstances of the adoption of that legal act had been arbitrary, or that there had been no reasonable legal grounds for instituting the relevant proceedings.", "81. In sum, the applicable domestic law indicated with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities to disclose the content of the prosecutor’s decision to terminate a pre-trial investigation, and when subsequently investigating that information within a parliamentary inquiry. There had been a pressing social need for the public to be informed about the ongoing investigation into corruption-related acts involving senior political leaders, thus the parliamentary investigation had reasonably been held in public with the participation of the press. Taking into account that the disclosed information had not been related to any of the applicant’s private issues, and in the absence of any severe individual consequences, any restriction on the applicant’s right to respect for his private life had been proportionate.", "The Court’s assessment", "82. The Court observes that the applicant complained that the State had failed to protect his correspondence and that release into public domain of the transcript of his telephone conversation with R.M. had weighed heavily on his private life.", "(a) General principles", "(i) As to correspondence and secret monitoring of communications", "83. The Court reiterates that telephone calls received on private or business premises are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see Amann v. Switzerland [GC], no. 27798/95, § 44, ECHR 2000 ‑ II). For the purpose of delimiting the scope of protection afforded by Article 8 against arbitrary interference by public authorities, the Court also held that the covert taping of telephone conversations falls within the scope of Article 8 in both aspects of the right guaranteed, namely respect for private life and correspondence (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 59, ECHR 2001 ‑ IX).", "84. The Court has likewise held that files gathered by security services on a particular individual fall within the scope of Article 8, even where the information has not been gathered by any intrusive or covert method (see Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V, and P.G. and J.H. v. the United Kingdom, cited above, § 57 ).", "(ii) As to private life", "85. The Court reiterates that “private life” is a broad term not susceptible to exhaustive definition. It would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle (see Fernández Martínez v. Spain [GC], no. 56030/07, § 109, ECHR 2014 (extracts), with further references).", "86. There is no reason of principle why the notion of “private life” should be taken to exclude professional activities (see Bigaeva v. Greece, no. 26713/05, § 23, 28 May 2009). Restrictions on an individual’s professional life may fall within Article 8 where they have repercussions on the manner in which he or she constructs his or her social identity by developing relationships with others (see Bărbulescu v. Romania [GC], no. 61496/08, § 71, 5 September 2017). In addition, professional life is often intricately linked to private life, especially if factors relating to private life, in the strict sense of the term, are regarded as qualifying criteria for a given profession. Professional life is therefore part of the zone of interaction between a person and others which, even in a public context, may fall within the scope of “private life” (see Fernández Martínez, cited above, § 110, and the case-law cited therein).", "87. The Court has also held that Article 8 of the Convention “protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world”. The notion of “private life” does not exclude in principle activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world. Therefore, restrictions imposed on access to a profession have been found to affect “private life”. Likewise, dismissal from office has been found to interfere with the right to respect for private life. Lastly, Article 8 deals with issues of protection of honour and reputation as part of the right to respect for private life (see Oleksandr Volkov, cited above, § 165, and case-law cited therein).", "(b) Application of the general principles to the circumstances of the instant case", "(i) As to existence of interference", "88. The Court notes that, once a pre-trial investigation regarding possible political corruption in connection with territorial planning had been opened, a court authorised the monitoring of R.M.’s telephone communications, as a result of which the Special Investigation Service intercepted the conversation between R.M. and the applicant (see paragraphs 7 and 8 above). The Court takes the view that transmitting that data to other State authorities, such as, initially, to the prosecutor (see paragraph 12 above) and, subsequently, to the Seimas Anti-Corruption Commission (see paragraph 13 above), and the authorities’ use of that data and its release into public domain, including the public scrutiny of the telephone transcript at the Anti-Corruption Commission’s hearing (see paragraphs 15 and 16 above) – which enlarged the group of persons with knowledge of the intercepted personal data, – constituted an interference with the applicant’s rights under Article 8 (see, mutatis mutandis, Weber and Saravia v. Germany (dec.), no. 54934/00, § 79, ECHR 2006 ‑ XI, and the case-law cited therein; see also Craxi (no. 2), cited above, § 57 ).", "(ii) Whether the interference was justified", "89. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Weber and Saravia, cited above, § 80).", "(α) Whether the interference was “in accordance with the law”", "90. The Court reiterates that the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig, cited above, § 26, Series A no. 176-B; and Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003 ‑ IX).", "91. The Court notes at the outset that the applicant did not dispute that the interception of his telephone conversation had been lawful, or that the prosecutor had been entitled to transfer that conversation to the Anti-Corruption Commission (see paragraph 71 above). Rather, he contended that the State authorities – the prosecutor and the Anti-Corruption Commission – had not properly protected that information as they had been required to by law (see paragraph 69 above).", "92. The Court firstly turns to the applicant’s grievance (see paragraph 69 above) that the information from the criminal investigation file was not properly protected by the prosecutor, when transferring the pre-trial investigation materials to the Anti-Corruption Commission. The Court observes that, when requested to do so by the Chairman of the Seimas Anti-Corruption Commission, who acted in compliance with Article 4 § 1 (1) of the Law on the Seimas Provisional Investigation Commissions, the prosecutor sent to that commission his decision to terminate the pre-trial investigation (see paragraphs 11, 13, 31 and 40 above). The Court also does not overlook the fact that, having considered that the materials gathered during the pre-trial investigation had elements demonstrating possible breach of other laws, the prosecutor also sent a copy of his decision to the Chief Official Ethics Commission, which was the prosecutor’s right and obligation under Article 214 § 6 of the Code of Criminal Procedure (see paragraphs 14 and 43 above; see also, more recently and, mutatis mutandis, Adomaitis v. Lithuania, no.14833/18, § 83, 18 January 2022). That being so, and also taking note of the Lithuanian authorities’ subsequent conclusion that by transferring that material to the Anti-Corruption Commission and by not warning it that the material should not be made public the prosecutor had not breached the rules of criminal proceedings (see paragraph 26 above), the Court cannot but reject the applicant’s argument that the information gathered during the pre-trial investigation had not been protected by the prosecutor. At this juncture the Court also reiterates its constant case-law to the effect that it is in the first place for the national authorities to interpret and apply domestic law. The scope of the Court’s task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic authorities have interpreted and applied national law, except in cases of flagrant non‑observance or arbitrariness, which the Court cannot discern in the present case (see, mutatis mutandis, Elita Magomadova v. Russia, no. 77546/14, § 59, 10 April 2018, and the case-law cited therein). It notes that the prosecutor’s findings set out in paragraph 26 above have never been quashed by the domestic courts (see, in particular, paragraph 28 above).", "93. Examining further, the Court observes that the content of the applicant’s conversation with R.M. was disclosed in the framework of the Anti-Corruption Commission’s proceedings regulated by the domestic law (see paragraphs 40 and 41 above), having obtained authorisation for use of that material from a prosecutor, who had not imposed any restrictions on the disclosure of the pre-trial investigation decision (see, mutatis mutandis, Drakšas, cited above, §§ 27 and 61); he had not requested that the Anti-Corruption Commission’s hearing, which as a rule is public (see paragraph 25 above; see also Article 6 § 2 of the Law on the Seimas Anti-Corruption Commission, cited in paragraph 41 above) be closed either. As pointed out by the prosecutor and the Vilnius City District Court, neither the members of the Seimas Anti-Corruption Commission nor the journalist V.D. had been participants in the criminal proceedings, to be liable for disclosure of the content of the telephone conversation in question (see paragraphs 25 and 31 above), and, in the absence of any clear evidence of arbitrariness, the Court again does not see any reasons to depart from the domestic authorities’ conclusions (see, among many authorities, García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29, ECHR 1999‑I). The Court accepts that the interpretation of the relevant legislation by the prosecutor and the Vilnius City District Court in the applicant’s case was not such as to render the contested action – the disclosure of the content of the applicant’s telephone conversation with R.M. at the Anti-Corruption Commission’s hearing – unlawful in Convention terms. Lastly, the Court also finds that the interference had a basis in law, which also was accessible and foreseeable. The finding that the applicant should have been able to foresee that his actions could be scrutinised is clear given the applicant’s professional occupation – at the relevant time he was the Prime Minister – and the legal regulation on the publicity and transparency of public service, as in force and accessible at the relevant time (see paragraphs 38 and 39 above; see also the Constitutional Court’s position on the requirements of publicity and transparency in adoption of legal acts, cited in paragraph 46 above).", "94. In the light of the foregoing, the Court holds that the interference with the applicant’s right to respect for his correspondence, and any ensuing impact on his right to privacy, was “in accordance with the law” (see, mutatis mutandis, Drakšas, cited above, § 55).", "(β) Legitimate aim", "95. The Court recalls that both the pre-trial investigation in criminal proceedings wherein the applicant’s telephone conversation had been intercepted (see paragraph 7 above), and the subsequent scrutiny of that telephone conversation at the Anti-Corruption Commission’s hearing (see paragraphs 15 and 16 above) sought to establish whether the rules for the adoption of legal acts had been breached when adopting Government Resolution no. 1025 and whether that Resolution had been conducive to upholding the territorial planning decisions, which, as it was suspected, were in flagrant breach of the public interest (see paragraphs 7 and 10 above; for more detail, see Povilonis v. Lithuania (dec.), no. 81624/17, §§ 11, 16, 67 and 68, 7 April 2022). This element had been underlined by the prosecutors and the court (see paragraphs 24, 30 in fine and 32 above); the fact that to dispel doubts as to the legitimacy of Government Resolution no. 1025 it had been eliminated from the Lithuanian legal system had been acknowledged by the Constitutional Court (see paragraph 46 above). Accordingly, the Court finds that the interference with the applicant’s right to respect for his correspondence, and any possible subsequent impact on his private life, as stemming from disclosure of that telephone conversation, was aimed at the protection of the rights and freedoms of others – in pursuance of Article 8 paragraph 2 of the Convention. Besides, the Court also gives weight to the Government’s suggestion that interference with the applicant’s rights under Article 8 of the Convention was aimed at the prevention of disorder and crime (see paragraph 77 above; for the context, see also Povilonis, cited above, §§ 50 et seq. ). In particular, under Article 2 of the Law on the Seimas Anti-Corruption Commission, prevention of corruption-related acts is one of its aims (see paragraph 41 above).", "(γ) Necessity of the interference", "96. Turning to the conversation at issue which was intercepted and disclosed (see paragraph 8 above), the Court cannot but note that it undoubtedly concerned the matter of the adoption of the relevant Government Resolution. The Court also finds it plain that the conversation contained no elements related to the applicant’s private life, such as questions relating to his health (see Biriuk v. Lithuania, no. 23373/03, § 39, 25 November 2008) or sexual life (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 109, 14 January 2020), or similar matters, except for the question of reputation, which the Court will revert to below. The same conclusion was reached by the prosecutor and the domestic courts which examined the applicant’s complaint (see paragraphs 23 and 30 above). Indeed, when questioned by the domestic authorities, the applicant himself specified that he had a working relationship with the mayor of Druskininkai, R.M., and that no private matters had been discussed during the conversation in question (see paragraph 9 above). The Court also observes and gives weight to the fact that when examining the applicant’s complaint of the breach of his right to privacy, the domestic court referred to the Court’s case-law on the protection of private life and carefully balanced the competing interests in question, namely the applicant’s reputation and honour on the one hand, and the right of the press to report on matters of public interest on the other (see paragraph 30 above). It must also be emphasised that according to the Court’s constant case-law, where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, weighty reasons are required if the Court is to substitute its view for that of the domestic courts (see Bédat v. Switzerland [GC], no. 56925/08, § 54, 29 March 2016). It is clear that there are no such reasons in the present case.", "97. The Court also has regard to the Constitutional Court’s practice whereby the activities of State and municipal officials linked to the implementation of functions of the State or municipal authorities and administrations are always of a public nature. Furthermore, actions of a public nature do not enjoy protection under Article 8 of the Convention, and a person may not expect privacy (see paragraph 44 above). In the Court’s view, the matter of the adoption of the Government resolution was precisely the implementation of State powers to adopt legal acts, and thus the circumstances surrounding the adoption of that resolution fell squarely within the notion of actions of a public nature. Moreover, even if the applicant had complained that the disclosure of his telephone conversation had had an impact on his reputation, the Court refers to the Constitutional Court’s position that the personal characteristics and behaviour of persons participating in social and political activities, in addition to certain circumstances of their private life, may be of importance to public matters (see paragraph 45 above).", "98. In the context of Article 8 of the Convention the Court has also examined whether an attack on a person attained a certain level of seriousness and was made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see, mutatis mutandis, Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, with further references; see also Denisov, cited above, §§ 110-14, 25 September 2018). As the Grand Chamber has held, applicants are obliged to identify and explain the concrete repercussions on their private life and the nature and extent of their suffering, and to substantiate such allegations in a proper way (see Denisov, cited above, § 114).", "99. The Court acknowledges the applicant’s argument that the release into the public domain of his telephone conversation had an impact on his reputation (see paragraph 18 above). It does not dispute his statements that he suffered negative experiences when communicating with others after the transcript of the telephone conversation had been disclosed by the media. Likewise, the Court cannot turn a blind eye to the fact that the applicant has been a professional politician for decades (see paragraph 5 above), and it goes without saying that reputation-related criteria play an important role in a politician’s life.", "100. Be that as it may, the applicant did not point to any concrete and tangible repercussions which the media’s disclosure of that telephone conversation had had on his private life. Therefore, his situation must be contrasted with those that the Court has examined in other cases, such as Oleksandr Volkov (cited above, § 166), where the applicant, a judge, had been dismissed from judicial office, which the Court found had affected a wide range of his relationships with other persons, including relationships of a professional nature. In the Oleksandr Volkov judgment, the Court also found that that applicant’s dismissal had had an impact on his “inner circle”, as the loss of his job must have had tangible consequences for his material well-being and that of his family. Moreover, the reason for the applicant’s dismissal, namely breach of judicial oath, suggested that his professional reputation had been affected (ibid.). There are clearly no such considerations in the present case. Likewise, in Polyakh and Others v. Ukraine (nos. 58812/15 and 4 others, §§ 208 and 209, 17 October 2019), the Court found that the applicants – who had not merely been suspended, demoted or transferred to positions of lesser responsibility, but dismissed and excluded from the civil service altogether, losing all their remuneration with immediate effect – had suffered very serious consequences as regards both their capacity to establish and develop relationships with others and their social and professional reputation, and that this had affected them to a very significant degree.", "101. In the instant case, however, the disclosure of the telephone conversation did not result in, for example, the applicant’s dismissal from the post of Prime Minister, or any other sanctions against him. In fact, the applicant was not convicted and the Chief Official Ethics Commission established nothing unethical in the actions of the persons mentioned in the prosecutor’s decision to discontinue the criminal proceedings (see paragraphs 34 and 35 above). The Court considers that those facts and findings alleviated the applicant’s situation to a certain extent. Besides, the Court also has regard to the Government’s argument that Government Resolution no. 1025 had been annulled, so that any associated flaws were eliminated from the Lithuanian legal system (see paragraphs 46 and 80 above). In the Court’s view, this gives weight to the Government’s argument that the press had a right to learn of and report a possible wrongdoing (see paragraph 79 above), and the Court has already referred to the importance of public scrutiny in cases of possible political corruption (see paragraph 95 above). At this juncture, it also observes that the applicant laid the blame for the disclosure of his intercepted telephone conversation not on the press, but on the State authorities which should have kept that material confidential (see paragraph 57 above).", "102. In the light of the above, and with regard to the applicant establishing and maintaining relationships with others, the Court finds that even if his reputation among his colleagues was affected by the disclosure of his telephone conversation, there are no factual grounds, let alone evidence, which he has put forward that would indicate that such an effect was so substantial as to have constituted a disproportionate interference with his rights guaranteed by Article 8 of the Convention (compare J.B. and Others v. Hungary (dec.), no. 45434/12 and 2 others, §§ 132-33, 27 November 2018).", "(iii) Conclusion", "103. It follows that there has been no violation of Article 8 in this case as regards the State’s obligation to protect the confidentiality of the applicant’s correspondence and respect for his private life." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE CASE", "10. Mr William Goodwin, a British national, is a journalist and lives in London.", "11. On 3 August 1989 the applicant joined the staff of The Engineer, published by Morgan-Grampian (Publishers) Ltd (\"the publishers\"), as a trainee journalist. He was employed by Morgan Grampian PLC (\"the employer\").", "On 2 November 1989 the applicant was telephoned by a person who, according to the applicant, had previously supplied him with information on the activities of various companies. The source gave him information about Tetra Ltd (\"Tetra\"), to the effect that the company was in the process of raising a £5 million loan and had financial problems as a result of an expected loss of £2.1 million for 1989 on a turnover of £20.3 million. The information was unsolicited and was not given in exchange for any payment. It was provided on an unattributable basis. The applicant maintained that he had no reason to believe that the information derived from a stolen or confidential document. On 6 and 7 November 1989, intending to write an article about Tetra, he telephoned the company to check the facts and seek its comments on the information.", "The information derived from a draft of Tetra ’ s confidential corporate plan. On 1 November 1989 there had been eight numbered copies of the most recent draft. Five had been in the possession of senior employees of Tetra, one with its accountants, one with a bank and one with an outside consultant. Each had been in a ring binder and was marked \"Strictly Confidential\". The accountants ’ file had last been seen at about 3 p.m. on 1 November in a room they had been using at Tetra ’ s premises. The room had been left unattended between 3 p.m. and 4 p.m. and during that period the file had disappeared.", "A. Injunction and orders for disclosure of sources and documents", "12. On 7 November 1989 Mr Justice Hoffmann of the High Court of Justice (Chancery Division) granted an application by Tetra of the same date for an ex parte interim injunction restraining the publishers of The Engineer from publishing any information derived from the corporate plan. The company informed all the national newspapers and relevant journals of the injunction on 16 November.", "13. In an affidavit to the High Court dated 8 November 1989, Tetra stated that if the plan were to be made public it could result in a complete loss of confidence in the company on the part of its actual and potential creditors, its customers and in particular its suppliers, with a risk of loss of orders and of a refusal to supply the company with goods and services. This would inevitably lead to problems with Tetra ’ s refinancing negotiations. If the company went into liquidation, there would be approximately four hundred redundancies.", "14. On 14 November 1989 Mr Justice Hoffmann, on an application by Tetra, ordered the publishers, under section 10 of the Contempt of Court Act 1981 (\"the 1981 Act\"; see paragraph 20 below), to disclose by 3 p.m. on 15 November the applicant ’ s notes from the above telephone conversation identifying his source. On the latter date, the publishers having failed to comply with the order, Mr Justice Hoffmann granted Tetra leave to join the applicant ’ s employer and the applicant himself to the proceedings and gave the defendants until 3 p.m. on the following day to produce the notes.", "On 17 November 1989 the High Court made a further order to the effect that the applicant represented all persons who had received the plan or information derived from it without authority and that such persons should deliver up any copies of the plan in their possession. The motion was then adjourned for the applicant to bring this order to the attention of his source. However, the applicant declined to do so.", "15. On 22 November 1989 Mr Justice Hoffmann ordered the applicant to disclose by 3 p.m. on 23 November his notes on the grounds that it was necessary \"in the interests of justice\", within the meaning of section 10 of the 1981 Act (see paragraph 20 below), for the source ’ s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document, obtain an injunction preventing further publication or seek damages for the expenses to which it had been put. The judge concluded:", "\"There is strong prima facie evidence that it has suffered aserious wrong by the theft of its confidential file. Thereis similar evidence that it would suffer serious commercialdamage from the publication of the information in the fileduring the near future. It is true that the source may notbe the person who stole the file. He may have had theinformation second hand, although this is less likely. Ineither case, however, he was trying to secure damagingpublication of information which he must have known to besensitive and confidential. According to the respondent,having given him the information he telephoned again a fewdays later to ask how the article was getting on. The plaintiff wishes to bring proceedings against the source forrecovery of the document, an injunction against furtherpublication and damages for the expense to which it has beenput. But it cannot obtain any of those remedies because itdoes not know whom to sue. In the circumstance of this case,in which a remedy against the source is urgently needed, Ithink that disclosure is necessary in the interests ofjustice.", "... There is no doubt on the evidence that the respondent wasan innocent recipient of the information but the NorwichPharmacal case shows that this does not matter. The questionis whether he had become mixed up in the wrongdoing ...", "The respondent has sworn an affidavit expressing the viewthat the public interest requires publication of theplaintiff ’ s confidential commercial information. Counsel forthe respondent says that the plaintiff ’ s previous publishedresults showed it as a prosperous expanding company andtherefore the public was entitled to know that it was nowexperiencing difficulties. I reject this submission. Thereis nothing to suggest that the information in the draftbusiness plan falsifies anything which has been previouslymade public or that the plaintiff was under any obligation,whether in law or commercial morality, to make thatinformation available to its customers, suppliers andcompetitors. On the contrary, it seems to me that businesscould not function properly if such information could not be kept confidential.\"", "16. On the same date the Court of Appeal rejected an application by the applicant for a stay of execution of the High Court ’ s order, but substituted an order requiring the applicant either to disclose his notes to Tetra or to deliver them to the Court of Appeal in a sealed envelope with accompanying affidavit. The applicant did not comply with this order.", "B. Appeals to the Court of Appeal and to the House of Lords", "17. On 23 November 1989 the applicant lodged an appeal with the Court of Appeal from Mr Justice Hoffmann ’ s order of 22 November 1989. He argued that disclosure of his notes was not \"necessary in the interests of justice\" within the meaning of section 10 of the 1981 Act; the public interest in publication outweighed the interest in preserving confidentiality; and, since he had not facilitated any breach of confidence, the disclosure order against him was invalid.", "The Court of Appeal dismissed the appeal on 12 December 1989. Lord Donaldson held:", "\"The existence of someone with access to highly confidentialinformation belonging to the plaintiffs who was prepared tobreak his obligations of confidentiality in this way was apermanent threat to the plaintiffs which could only beeliminated by discovering his identity. The injunctionswould no doubt be effective to prevent publication in thepress, but they certainly would not effectively preventpublication to the plaintiffs ’ customers or competitors.", "...", "... I am loath in a judgment given in open court to give adetailed explanation of why this is a case in which, if thefull facts were known and the courts had to say that theycould give the plaintiffs no assistance, there would, Ithink, be a significant lessening in public confidence in theadministration of justice generally. Suffice it to say thatthe plaintiffs are a, and perhaps the, leader in their veryimportant field, which I deliberately do not identify, withnational and international customers and competitors. They are faced with a situation which is in part the result oftheir own success. They have reached a point at which theyhave to refinance and expand or go under with the loss notonly of money, but of a significant number of jobs. This isnot the situation in which the court should be or be seen tobe impotent in the absence of compelling reasons. The plaintiffs are continuing with their refinancing discussionsmenaced by the source (or the source ’ s source) ticking awaybeneath them like a time bomb. Prima facie they are entitledto assistance in identifying, locating and defusing it.", "That I should have concluded that the disclosure of Mr Goodwin ’ s source is necessary in the interests of justiceis not determinative of this appeal. It does, however, meanthat I have to undertake a balancing exercise. On the onehand there is the general public interest in maintaining theconfidentiality of journalistic sources, which is the reasonwhy section 10 was enacted. On the other is, in my judgment,a particular case in which disclosure is necessary in thegeneral interests of the administration of justice. If thesetwo factors stood alone, the case for ordering disclosurewould be made out, because the parliamentary intention mustbe that, other things being equal, the necessity fordisclosure on any of the four grounds should prevail. Were it otherwise, there would be no point in having these doorways.", "But other things would not be equal if, on the particular facts of the case, there was some additional reason formaintaining the confidentiality of a journalistic source. It might, for example, have been the case that the information disclosed what, on the authorities, is quaintly called `iniquity ’. Or the plaintiffs might have been a publiccompany whose shareholders were unjustifiably being kept inignorance of information vital to their making a sensibledecision on whether or not to sell their shares. Such afeature would erode the public interest in maintaining theconfidentiality of the leaked information and correspondingly enhance the public interest in maintaining theconfidentiality of journalistic sources. Equally, onparticular facts such as that the identification of thesource was necessary in order to support or refute a defenceof alibi in a major criminal trial, the necessity fordisclosure `in the interests of justice ’ might be enhancedand overreach the threshold of the statutory doorway requiring some vastly increased need for the protection ofthe source if it was to be counterbalanced. Once the[plaintiffs] can get through a doorway, the balancing exercise comes into play.", "On the facts of this case, nothing is to be added to eitherside of the equation. The test of the needs of justice ismet, but not in superabundance. The general public interestin maintaining the confidentiality of journalistic sourcesexists, but the facts of this particular case add absolutelynothing to it. No `iniquity ’ has been shown. No shareholders have been kept in the dark. Indeed the publichas no legitimate interest in the business of the plaintiffswho, although corporate in form, are in truth to becategorised as private individuals. This is in reality apiece of wholly unjustified intrusion into privacy.", "Accordingly, I am left in no doubt that, notwithstanding thegeneral need to protect journalistic sources, this is a casein which the balance comes down in favour of disclosure. Iwould dismiss the companies ’ appeals. I can see no reason injustice for doing otherwise with regard to Mr Goodwin ’ sappeals .\"", "Lord Justice McCowan stated that the applicant must have been \"amazingly naïve\" if it had not occurred to him that the source had been at the very least guilty of breach of confidence.", "The Court of Appeal granted the applicant leave to appeal to the House of Lords.", "18. The House of Lords upheld the Court of Appeal ’ s decision on 4 April 1990, applying the principle expounded by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases 133, a previous leading case:", "\"if through no fault of his own a person gets mixed up in thetortious acts of others so as to facilitate their wrongdoinghe may incur no personal liability but he comes under a dutyto assist the person who has been wronged by giving him fullinformation and disclosing the identity of the wrongdoers.\"", "Lord Bridge, in the first of the five separate speeches given in the applicant ’ s case, underlined that in applying section 10 it was necessary to carry out a balancing exercise between the need to protect sources and, inter alia, the \"interests of justice\". He referred to a number of other cases in relation to how the balancing exercise should be conducted (in particular Secretary of State for Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued:", "\"... the question whether disclosure is necessary in theinterests of justice gives rise to a more difficult problemof weighing one public interest against another. A questionarising under this part of section 10 has not previously comebefore your Lordships ’ House for decision. In discussing thesection generally Lord Diplock said in Secretary of State forDefence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,350:", "`The exceptions include no reference to \"the public interest\"generally and I would add that in my view the expression\"justice \", the interests of which are entitled to protection,is not used in a general sense as the antonym of\" injustice\"but in the technical sense of the administration of justicein the course of legal proceedings in a court of law, or, byreason of the extended definition of \"court\" in section 19 ofthe Act of 1981 before a tribunal or body exercising thejudicial power of the state. ’", "I agree entirely with the first half of this dictum. To construe `justice ’ as the antonym of `injustice ’ insection 10 would be far too wide. But to confine it to the`technical sense of the administration of justice in thecourse of legal proceedings in a court of law ’ seems to me,with all respect due to any dictum of the late Lord Diplock,to be too narrow. It is, in my opinion, `in the interests of justice ’, in the sense in which this phrase is used insection 10, that persons should be enabled to exerciseimportant legal rights and to protect themselves from seriouslegal wrongs whether or not resort to legal proceedings in acourt of law will be necessary to attain these objectives.Thus, to take a very obvious example, if an employer of alarge staff is suffering grave damage from the activities ofan unidentified disloyal servant, it is undoubtedly in theinterests of justice that he should be able to identify himin order to terminate his contract of employment,notwithstanding that no legal proceedings may be necessary to achieve that end.", "Construing the phrase `in the interests of justice ’ in thissense immediately emphasises the importance of the balancingexercise. It will not be sufficient, per se, for a partyseeking disclosure of a source protected by section 10 toshow merely that he will be unable without disclosure toexercise the legal right or avert the threatened legal wrongon which he bases his claim in order to establish thenecessity of disclosure. The judge ’ s task will always be toweigh in the scales the importance of enabling the ends ofjustice to be attained in the circumstances of the particularcase on the one hand against the importance of protecting thesource on the other hand. In this balancing exercise it isonly if the judge is satisfied that disclosure in theinterests of justice is of such preponderating importance asto override the statutory privilege against disclosure thatthe threshold of necessity will be reached.", "Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than anissue calling for the exercise of the judge ’ s discretion,but, like many other questions of fact, such as the questionof whether somebody has acted reasonably in givencircumstances, it will call for the exercise of adiscriminating and sometimes difficult value judgment. Inestimating the weight to be attached to the importance ofdisclosure in pursuance of the policy which underliessection 10 on the other hand, many factors will be relevanton both sides of the scale.", "It would be foolish to attempt to give a comprehensive guidance as to how the balancing exercise should be carriedout. But it may not be out of place to indicate the kind offactors which will require consideration. In estimating theimportance to be given to the case in favour of disclosurethere will be a wide spectrum within which the particularcase must be located. If the party seeking disclosure shows,for example, that his very livelihood depends upon it, thiswill put the case near one end of the spectrum. If he showsno more than that what he seeks to protect is a minorinterest in property, this will put the case at or near theother end. On the other side the importance of protecting asource from disclosure in pursuance of the policy underlyingthe statute will also vary within a spectrum. One importantfactor will be the nature of the information obtained fromthe source. The greater the legitimate interest in theinformation which the source has given to the publisher orintended publisher, the greater will be the importance ofprotecting the source. But another and perhaps moresignificant factor which will very much affect the importanceof protecting the source will be the manner in which theinformation was itself obtained by the source. If it appearsto the court that the information was obtained legitimatelythis will enhance the importance of protecting the source.Conversely, if it appears that the information was obtainedillegally, this will diminish the importance of protectingthe source unless, of course, this factor is counterbalancedby a clear public interest in publication of the information,as in the classic case where the source has acted for thepurpose of exposing iniquity. I draw attention to theseconsiderations by way of illustration only and I emphasiseonce again that they are in no way intended to be read as acode ...", "In the circumstances of the instant case, I have no doubtthat [the High Court] and the Court of Appeal were right infinding that the necessity for disclosure of Mr Goodwin ’ snotes in the interests of justice was established. Theimportance to the plaintiffs of obtaining disclosure lies inthe threat of severe damage to their business, andconsequentially to the livelihood of their employees, whichwould arise from disclosure of the information contained intheir corporate plan while their refinancing negotiations arestill continuing. This threat ... can only be defused ifthey can identify the source either as himself the thief ofthe stolen copy of the plan or as a means to lead to theidentification of the thief and thus put themselves in aposition to institute proceedings for the recovery of themissing document. The importance of protecting the source onthe other hand is much diminished by the source ’ s complicity,at the very least, in a gross breach of confidentiality whichis not counterbalanced by any legitimate interest whichpublication of the information was calculated to serve.Disclosure in the interests of justice is, on this view ofthe balance, clearly of preponderating importance so as tooverride the policy underlying the statutory protection ofsources and the test of necessity for disclosure is satisfied...\"", "Lord Templeman added that the applicant should have \"recognised that [the information] was both confidential and damaging\".", "C. Fine for contempt of court", "19. In the meantime, on 23 November 1989, the applicant had been served with a motion seeking his committal for contempt of court, an offence which was punishable by an unlimited fine or up to two years ’ imprisonment (section 14 of the 1981 Act). On 24 November, at a hearing in the High Court, counsel for the applicant had conceded that he had been in contempt but the motion was adjourned pending the appeal.", "Following the House of Lord ’ s dismissal of the appeal, the High Court, on 10 April 1990, fined the applicant £5,000 for contempt of court." ]

[ "II. RELEVANT DOMESTIC LAW", "20. Section 10 of the Contempt of Court Act 1981 provides:", "\"No court may require a person to disclose, nor is a personguilty of contempt of court for refusing to disclose thesource of information contained in the publication for whichhe is responsible, unless it be established to thesatisfaction of the court that disclosure is necessary in theinterests of justice or national security or for theprevention of disorder or crime.\"", "21. Section 14 [3] reads:", "\"In any case where a court has power to commit a person toprison for contempt of court and (apart from this provision)no limitation applies to the period of committal, thecommittal shall (without prejudice to the power of the courtto order his earlier discharge) be for a fixed term, and thatterm shall not on any occasion exceed two years in the caseof committal by a superior court, or one month in the case ofcommittal by an inferior court.\"", "22. In Secretary of State for Defence v. Guardian Newspapers Lord Diplock considered the expression \"interests of justice\" in section 10 of the 1981 Act:", "\"The exceptions include no reference to the ‘ public interest ’ generally and I would add that in my view the expression ’ justice ’, the interests of which are entitled to protection,is not used in a general sense as the antonym of ‘ injustice ’ but in a technical sense of the administration of justice inthe course of legal proceedings in a court of law ... [The expression `interests of justice ’ ] ... refers to theadministration of justice in particular legal proceedingsalready in existence or, in the type of `bill of discovery ’ case ... exemplified by the Norwich Pharmacal Co. v. Customsand Excise Commissioners ... a particular civil action whichit is proposed to bring against a wrongdoer whose identityhas not yet been ascertained. I find it difficult toenvisage a civil action in which section 10 of the [1981] Actwould be relevant other than one of defamation or fordetention of goods where the goods, as in the instant caseand in British Steel Corporation v. Granada Television ...consist of or include documents that have been supplied tothe media in breach of confidence.\"", "PROCEEDINGS BEFORE THE COMMISSION", "23. In his application (no. 17488/90) of 27 September 1990 to the Commission, the applicant complained that the imposition of a disclosure order requiring him to reveal the identity of a source violated his right to freedom of expression under Article 1 0 (art. 10) of the Convention.", "24. The Commission declared the application admissible on 7 September 1993. In its report of 1 March 1994 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 10 (art. 10) (by eleven votes to six). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment.", "FINAL SUBMISSIONS MADE TO THE COURT", "25. At the hearing on 24 April 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of Article 1 0 (art. 10) of the Convention.", "26. On the same occasion the applicant reiterated his request to the Court, stated in his memorial, to find that there had been a breach of Article 10 (art. 10) and to award him just satisfaction under Article 5 0 (art. 50) of the Convention.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION", "27. The applicant alleged that the disclosure order requiring him to reveal the identity of his source and the fine imposed upon him for having refused to do so constituted a violation of Article 10 (art. 10) of the Convention, which reads:", "\"1. Everyone has the right to freedom of expression. Thisright shall include freedom to hold opinions and to receiveand impart information and ideas without interference bypublic authority and regardless of frontiers. ThisArticle (art. 10) shall not prevent States from requiring thelicensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with itduties and responsibilities, may be subject to suchformalities, conditions, restrictions or penalties as areprescribed by law and are necessary in a democratic society,in the interests of national security, territorial integrityor public safety, for the prevention of disorder or crime,for the protection of health or morals, for the protection ofthe reputation or rights of others, for preventing thedisclosure of information received in confidence, or formaintaining the authority and impartiality of the judiciary.\"", "28. It was undisputed that the measures constituted an interference with the applicant ’ s right to freedom of expression as guaranteed by paragraph 1 of Article 10 (art. 10-1) and the Court sees no reason to hold otherwise. It must therefore examine whether the interference was justified under paragraph 2 of Article 10 (art. 10-2).", "A. Was the interference \"prescribed by law\"?", "29. The Court observes that, and this was not disputed, the impugned disclosure order and the fine had a basis in national law, namely sections 10 and 14 of the 1981 Act (see paragraphs 20 and 21 above). On the other hand, the applicant maintained that as far as the disclosure order was concerned the relevant national law failed to satisfy the foreseeability requirement which flows from the expression \"prescribed by law\".", "30. The Government contested this allegation whereas the Commission did not find it necessary to reach a conclusion on this point.", "31. The Court reiterates that, according to its case-law, the relevant national law must be formulated with sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A law that confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see, for instance, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 71-72, para. 37).", "32. The applicant argued that the interests-of-justice exception to the protection of sources under section 10 of the 1981 Act was not sufficiently precise to enable journalists to foresee the circumstances in which such an order could be made against them in order to protect a private company. By applying this provision to the present case, Lord Bridge had completely revised the interpretation given by Lord Diplock in Secretary of State for Defence v. Guardian Newspapers. The balancing exercise introduced by Lord Bridge amounted to subjective judicial assessment of factors based on retrospective evidence presented by the party seeking to discover the identity of the source (see paragraph 18 above). At the time the source provided the information, the journalist could not possibly know whether the party ’ s livelihood depended upon such discovery and could not assess with any degree of certainty the public interest in the information. A journalist would usually be in a position to judge whether the information was acquired by legitimate means or not, but would not be able to predict how the courts would view the matter. The law, as it stood, was no more than a mandate to the judiciary to order journalists to disclose sources if they were \"moved\" by the complaint of an aggrieved party.", "33. The Court recognises that in the area under consideration it may be difficult to frame laws with absolute precision and that a certain degree of flexibility may even be desirable to enable the national courts to develop the law in the light of their assessment of what measures are necessary in the interests of justice.", "Contrary to what is suggested by the applicant, the relevant law did not confer an unlimited discretion on the English courts in determining whether an order for disclosure should be made in the interests of justice. Important limitations followed in the first place from the terms of section 10 of the 1981 Act, according to which an order for disclosure could be made if it was \"established to the satisfaction of the court that disclosure [was] necessary in the interests of justice\" (see paragraph 20 above).", "In addition, at the material time, that is when the applicant received the information from his source, there existed not only an interpretation by Lord Diplock of the interests-of-justice provision in section 10 in the case of Secretary of State for Defence v. Guardian Newspapers but also a ruling by Lord Reid in Norwich Pharmacal Co. v. Customs and Excise Commissioners (1973), to the effect that a person who through no fault of his own gets mixed up in wrongdoing may come under a duty to disclose the identity of the wrongdoer (see paragraphs 15, 18 and 22 above).", "In the Court ’ s view the interpretation of the relevant law made by the House of Lords in the applicant ’ s case did not go beyond what could be reasonably foreseen in the circumstances (see, mutatis mutandis, the recent S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, p. 42, para. 36). Nor does it find any other indication that the law in question did not afford the applicant adequate protection against arbitrary interference.", "34. Accordingly, the Court concludes that the impugned measures were \"prescribed by law\".", "B. Did the interference pursue a legitimate aim?", "35. It was not disputed before the Convention institutions that the aim of the impugned measures was to protect Tetra ’ s rights and that the interference thus pursued a legitimate aim. The Government maintained that the measures were also taken for the prevention of crime.", "36. The Court, being satisfied that the interference pursued the first of these aims, does not find it necessary to determine whether it also pursued the second.", "C. Was the interference \"necessary in a democratic society\"?", "37. The applicant and the Commission were of the opinion that Article 10 (art. 10) of the Convention required that any compulsion imposed on a journalist to reveal his source had to be limited to exceptional circumstances where vital public or individual interests were at stake. This test was not satisfied in the present case.", "The applicant and the Commission invoked the fact that Tetra had already obtained an injunction restraining publication (see paragraph 12 above), and that no breach of that injunction had occurred. Since the information in question was of a type commonly found in the business press, they did not consider that the risk of damage that further publication could cause was substantiated by Tetra, which had suffered none of the harm adverted to. The applicant added that the information was newsworthy even though it did not reveal matters of vital public interest, such as crime or malfeasance. The information about Tetra ’ s mismanagement, losses and loan-seeking activities was factual, topical and of direct interest to customers and investors in the market for computer software. In any event, the degree of public interest in the information could not be a test of whether there was a pressing social need to order the source ’ s disclosure. A source may provide information of little value one day and of great value the next; what mattered was that the relationship between the journalist and the source was generating the kind of information which had legitimate news potential. This was not to deny Tetra ’ s entitlement to keep its operations secret, if it could, but to contest that there was a pressing social need for punishing the applicant for refusing to disclose the source of the information which Tetra had been unable to keep secret.", "38. The Government contended that the disclosure order was necessary in a democratic society for the protection of \"the rights\" of Tetra. The function of the domestic courts was both to ascertain facts and, in the light of the facts established, to determine the legal consequences which should flow from them. In the Government ’ s view, the supervisory jurisdiction of the Convention institutions extended only to the latter. These limitations on the Convention review were of importance in the present case, where the national courts had proceeded on the basis that the applicant had received the information from his source in ignorance as to its confidential nature, although, in fact, this was something he ought to have recognised. Moreover, the source was probably the thief of the confidential business plan and had improper motives for divulging the information. In addition, the plaintiffs would suffer serious commercial damage from further publication of the information. These findings by the domestic courts were based upon the evidence which was placed before them.", "It was further submitted that there was no significant public interest in the publication of the confidential information received by the applicant. Although there is a general public interest in the free flow of information to journalists, both sources and journalists must recognise that a journalist ’ s express promise of confidentiality or his implicit undertaking of non- attributability may have to yield to a greater public interest. The journalist ’ s privilege should not extend to the protection of a source who has conducted himself mala fide or, at least, irresponsibly, in order to enable him to pass on, with impunity, information which has no public importance. The source in the present case had not exercised the responsibility which was called for by Article 10 (art. 10) of the Convention. The information in issue did not possess a public-interest content which justified interference with the rights of a private company such as Tetra.", "Although it was true that effective injunctions had been obtained, so long as the thief and the source remained untraced, the plaintiffs were at risk of further dissemination of the information and, consequently, of damage to their business and to the livelihood of their employees. There were no other means by which Tetra ’ s business confidence could have been protected.", "In these circumstances, according to the Government, the order requiring the applicant to divulge his source and the further order fining him for his refusal to do so did not amount to a breach of the applicant ’ s rights under Article 1 0 (art. 10) of the Convention.", "39. The Court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (see, as a recent authority, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, para. 31).", "Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms (see, amongst others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and Resolution on the Confidentiality of Journalists ’ Sources by the European Parliament, 18 January 1994, Official Journal of the European Communities No. C 44/34). Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified by an overriding requirement in the public interest.", "These considerations are to be taken into account in applying to the facts of the present case the test of necessity in a democratic society under paragraph 2 of Article 10 (art. 10-2).", "40. As a matter of general principle, the \"necessity\" for any restriction on freedom of expression must be convincingly established (see the Sunday Times v. the United Kingdom (no. 2) judgment of 26 November 1991, Series A no. 217, pp. 28-29, para. 50, for a statement of the major principles governing the \"necessity\" test). Admittedly, it is in the first place for the national authorities to assess whether there is a \"pressing social need\" for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10 (art. 10-2), whether the restriction was proportionate to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.", "The Court ’ s task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review under Article 10 (art. 10) the decisions they have taken pursuant to their power of appreciation. In so doing, the Court must look at the \"interference\" complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are \"relevant and sufficient\".", "41. In the instant case, as appears from Lord Bridge ’ s speech in the House of Lords, Tetra was granted an order for source disclosure primarily on the grounds of the threat of severe damage to their business, and consequently to the livelihood of their employees, which would arise from disclosure of the information in their corporate plan while their refinancing negotiations were still continuing (see paragraph 18 above). This threat, \"ticking away beneath them like a time bomb\", as Lord Donaldson put it in the Court of Appeal (see paragraph 17 above), could only be defused, Lord Bridge considered, if they could identify the source either as himself the thief of the stolen copy of the plan or as a means to lead to identification of the thief and thus put the company in a position to institute proceedings for the recovery of the missing document. The importance of protecting the source, Lord Bridge concluded, was much diminished by the source ’ s complicity, at the very least, in a gross breach of confidentiality which was not counterbalanced by any legitimate interest in publication of the information (see paragraph 18 above).", "42. In the Court ’ s view, the justifications for the impugned disclosure order in the present case have to be seen in the broader context of the ex parte interim injunction which had earlier been granted to the company, restraining not only the applicant himself but also the publishers of The Engineer from publishing any information derived from the plan. That injunction had been notified to all the national newspapers and relevant journals (see paragraph 12 above). The purpose of the disclosure order was to a very large extent the same as that already being achieved by the injunction, namely to prevent dissemination of the confidential information contained in the plan. There was no doubt, according to Lord Donaldson in the Court of Appeal, that the injunction was effective in stopping dissemination of the confidential information by the press (see paragraph 17 above). Tetra ’ s creditors, customers, suppliers and competitors would not therefore come to learn of the information through the press. A vital component of the threat of damage to the company had thus already largely been neutralised by the injunction. This being so, in the Court ’ s opinion, in so far as the disclosure order merely served to reinforce the injunction, the additional restriction on freedom of expression which it entailed was not supported by sufficient reasons for the purposes of paragraph 2 of Article 10 (art. 10-2) of the Convention.", "43. What remains to be ascertained by the Court is whether the further purposes served by the disclosure order provided sufficient justification.", "44. In this respect it is true, as Lord Donaldson put it, that the injunction \"would not effectively prevent publication to [Tetra ’ s] customers or competitors\" directly by the applicant journalist ’ s source (or that source ’ s source) (see paragraph 17 above). Unless aware of the identity of the source, Tetra would not be in a position to stop such further dissemination of the contents of the plan, notably by bringing proceedings against him or her for recovery of the missing document, for an injunction against further disclosure by him or her and for compensation for damage.", "It also had a legitimate reason as a commercial enterprise in unmasking a disloyal employee or collaborator, who might have continuing access to its premises, in order to terminate his or her association with the company.", "45. These are undoubtedly relevant reasons. However, as also recognised by the national courts, it will not be sufficient, per se, for a party seeking disclosure of a source to show merely that he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases his or her claim in order to establish the necessity of disclosure (see paragraph 18 above). In that connection, the Court would recall that the considerations to be taken into account by the Convention institutions for their review under paragraph 2 of Article 10 (art. 10-2) tip the balance of competing interests in favour of the interest of democratic society in securing a free press (see paragraphs 39 and 40 above). On the facts of the present case, the Court cannot find that Tetra ’ s interests in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist ’ s source. The Court does not therefore consider that the further purposes served by the disclosure order, when measured against the standards imposed by the Convention, amount to an overriding requirement in the public interest.", "46. In sum, there was not, in the Court ’ s view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist ’ s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 (art. 10-2), for the protection of Tetra ’ s rights under English law, notwithstanding the margin of appreciation available to the national authorities.", "Accordingly, the Court concludes that both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10 (art. 10).", "II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION", "47. Mr William Goodwin sought just satisfaction under Article 50 (art. 50) of the Convention, which reads :", "\"If the Court finds that a decision or a measure taken by alegal authority or any other authority of a High ContractingParty is completely or partially in conflict with theobligations arising from the ... Convention, and if theinternal law of the said Party allows only partial reparationto be made for the consequences of this decision or measure,the decision of the Court shall, if necessary, afford justsatisfaction to the injured party.\"", "A. Non-pecuniary damage", "48. The applicant claimed 15,000 pounds sterling for non-pecuniary damage, on account of mental anguish, shock, dismay and anxiety which he felt as a result of the proceedings against him. For five months he was in constant peril of being sent to prison, for up to two years, as a punishment for obeying his conscience and for living up to his ethical obligations as a journalist. He still has to live with a criminal record since his crime of contempt of court would not be expunged by a finding of breach by the Court. He had been the subject of harassment by court process servers and his employers so as to comply with a court order against themselves, all of which was added to the pressure exerted on him by the threat of dismissal if he did not disclose the identity of his source.", "49. The Government objected to the applicant ’ s claim on the ground that the alleged adverse consequences stemmed from the fact that he was defying and disobeying the law. Even if he considered it a bad law, he should have obeyed the order to provide the information to the court in a sealed envelope, or, at the very least, he should have recognised his duty to obey the disclosure order when he lost his case in the House of Lords. Had he done so, the Government would have found it difficult to resist a claim for compensation for any adverse consequences.", "50. The Court is not persuaded by the Government ’ s arguments. What matters under Article 50 (art. 50) is whether the facts found to constitute a violation have resulted in non-pecuniary damage. In the present case, the Court finds it established that there was a causal link between the anxiety and distress suffered by the applicant and the breach found of the Convention. However, in the circumstances of the case, the Court considers that this finding constitutes adequate just satisfaction in respect of the damage claimed under this head.", "B. Costs and expenses", "51. The applicant further sought reimbursement of costs and expenses totalling £49,500, in respect of the following items specified in his memorial to the Court of 1 March 1995:", "(a) £19,500 for counsel ’ s fees for drafting the application to the Commission and written observations to the latter and the Court and for preparing and presenting the case before both the Commission and the Court;", "(b) £30,000 for work by the applicant ’ s solicitors in connection with the proceedings before the Commission and the Court.", "To the above amounts should be added any applicable value added tax (VAT).", "52. The Government, by letter of 11 April 1995, invited the applicant to provide a detailed breakdown of the costs.", "53. In a letter of 25 July 1995 the applicant stated that the solicitors ’ work before the Commission and Court amounted to a total of 136 hours at, on average, £250 per hour for a senior partner and £150 per hour for an assistant solicitor.", "54. On 30 August 1995, the Government submitted their comments on the breakdown provided by the applicant. Without prejudice to the Court ’ s decision regarding the belatedness of the applicant ’ s claim, they stated that they considered that the £19,500 sought in respect of counsel was unreasonably high and that £16,000 would be reasonable.", "As to solicitors ’ fees, the Government regarded the rates and the number of hours claimed as excessive. In their view 110 hours at an average rate of £160 per hour for a senior partner and £100 per hour for an assistant solicitor would be reasonable.", "According to the Government ’ s calculations, it would be reasonable to indemnify the applicant £37,59 5.50 (VAT included) for costs.", "55. By letter of 1 September 1995, the applicant stressed that the number of hours and the hourly rates claimed were reasonable. He conceded that if the Court found in his favour, it could properly in its discretion award the amounts indicated by the Government. He stated that he would be prepared to settle for a total figure midway between the total figures contended for by the two parties.", "56. The Court considers the sum conceded by the Government to be adequate in the circumstances of the present case. The Court therefore awards the applicant £37,595,50 (VAT included) for legal costs and expenses, less the 9,300 French francs already paid in legal aid by the Council of Europe in respect of legal fees.", "C. Default interest", "57. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Particular circumstances of the case", "6. The applicant was born in 1975 and lives in Amsterdam.", "7. On 30 March 2000 the Amsterdam Regional Court ( arrondissementsrechtbank ) convicted three accused, Messrs K., Van S. and H., of arms trafficking. In the criminal investigation into the offences at issue, the Amsterdam police had stated that an arsenal of weapons had been found by chance: the caretaker of a building situated on the Nachtwachtlaan in Amsterdam had contacted the police when water was leaking from one of the flats in the building, whose occupants were absent. With the aid of two locksmiths, the police had gained entry to the flat and in the subsequent search for the source of the leak, the weapons had been found.", "8. The accused lodged an appeal against the judgment of the Regional Court.", "9. On 12 and 13 September 2000 the daily newspaper Sp!ts published two articles, written by the applicant and his colleague Ms S., in which doubts were expressed about the amount of coincidence allegedly involved in the finding of the weapons. The article of 13 September 2000, entitled “Chance Hit or Perfect Shot? ” (“ Toevalstreffer of loepzuiver schot? ” ), quotes an unnamed policeman of the Amsterdam force as commenting in respect of the flooding, “That is what we made out of it. Sometimes you just need a breakthrough in an investigation” (“ Dat hebben we er maar van gemaakt. Soms heb je net even een doorbraak nodig in je onderzoek ” ).", "10. In the proceedings on appeal against K., Van S. and H., the applicant and Ms S. were summonsed to appear as witnesses at the request of the defence. At the first hearing before the Amsterdam Court of Appeal ( gerechtshof ) on 22 September 2000 in the cases against Van S. and K., the applicant – who was assisted by counsel – stated inter alia that he knew that the policeman, whom he had quoted verbatim in the article of 13 September 2000, had been involved in a previous investigation against K. When the applicant was asked whether that policeman was also involved in the investigation of the flat or was aware of that investigation, he invoked his right of non-disclosure ( verschoningsrecht ). Counsel for the defence argued that both the individual interest of the accused – on whom a custodial sentence had been imposed as a result of the investigation carried out by the police – and the interest of criminal justice in the Netherlands outweighed the applicant's interest in not disclosing his source. The Advocate General also expressed as his opinion that the applicant could not invoke a right of non-disclosure. He stated in addition that the source, if his name was made known, had nothing to fear from either the police or the public prosecution service.", "11. After having deliberated, the Court of Appeal considered that, if the statement made by the police officer to the applicant was correct, this might affect the conviction of the accused. It also affected the integrity of the police and judicial authorities. For these reasons, the Court of Appeal held that the applicant was to reply to the question whether his source had been involved in the investigation of the flat and had been aware of that investigation. The President of the court further reminded the applicant that the court was empowered to order his detention for failure to comply with a judicial order ( gijzeling ). Upon this, the applicant replied that his source had both been aware of, and involved in, the investigation of the flat.", "12. Asked by counsel for the accused to reveal the identity of his source, the applicant once again invoked his right of non-disclosure. Counsel for the applicant submitted that he was justified in so doing, given that disclosing the identity of his source would render it impossible for the applicant to work as a journalist in the future since sources would no longer approach him. The interests of the journalist and of freedom of expression outweighed other interests. Moreover, as the criminal charges at issue concerned only arms trafficking and not, for example, a multiple homicide, it was disproportionate to require the applicant to name his source. It also went against the principle of subsidiarity, since there were other ways in which the identity of the source could be discovered.", "13. In reply, the Advocate General stated that journalists exposed obvious wrongs ( kennelijke misstanden ) in society. Where they chose to do so, they should also face the consequences. The applicant was the only witness who could clarify whether or not the three accused had been wrongly convicted. In the present case, where official records, drawn up on oath of office ( ambtseed ) by police officers, and the integrity of the judicial authorities were at stake, the applicant must reveal the identity of his source. It could not be the case that, in order to trace this identity, every member of the Amsterdam police force should be heard, bearing in mind that all officers in the case against K. had already been heard by the investigating judge ( rechter-commissaris ).", "14. Having deliberated, the Court of Appeal decided that the applicant was to reveal the identity of his source, for the same reasons as it had held that he had to reply to the question of his source's involvement in the investigation. The applicant invoked his right to remain silent ( zwijgrecht ), upon which the court ordered his immediate detention for a maximum of 30 days. No legal remedy lay against the decision to detain the applicant (Article 294 § 3 of the Code of Criminal Procedure – Wetboek van Strafvordering, “CCP”).", "15. When questioned by counsel for the accused, the applicant's colleague, Ms S., stated that she was aware of the identity of the source, but that she had never met him in person. Having regard to this last fact, as well as to the fact that the journalist who had had direct contact with the source – i.e. the applicant – had already been placed in detention, the Court of Appeal considered that Ms S. was not obliged to reveal the identity of the source.", "16. The applicant was served with an unreasoned decision on 25 September 2000. On 27 September 2000 he was handed a copy of the record of the hearing of 22 September, containing the decisions made by the Court of Appeal at that hearing and the reasons for them.", "17. Late on 22 September 2000 the applicant lodged a request with the Court of Appeal to be released from detention. Prior to the examination of this request on 27 September 2000, the applicant was able to consult his lawyer only once, namely in the evening of 25 September. Requests to visit the applicant on 22, 23, 24, (the afternoon of) 25, 26 and 27 September were refused. The request for release was dealt with by the Court of Appeal in chambers ( raadkamer ), by the same judges who had ordered his detention.", "18. At the hearing in chambers on 27 September 2000, the Advocate General reported that, following the applicant's statements at the hearing on 22 September, a police inspector had carried out an internal investigation, which had revealed that only eight police officers had been involved in both the first and the second investigation into the accused K. All these officers had made sworn affidavits to the effect that they had never been in contact with the applicant.", "19. Informed of the outcome of the internal police investigation, the applicant insisted that he did not want to reveal the identity of his source. He stated that he was a journalist and that he might as well give up on that career if he started revealing his sources; no sources wanting to remain anonymous would any longer be willing to provide him with tip -offs. The applicant was informed by the President of the Court of Appeal that the right of non-disclosure was not absolute, and that more weighty interests could be at stake. In the present case, long prison sentences had been imposed on the three accused, partly on the basis of official records drawn up by police officers. The applicant replied that he was willing to state only that his source was not one of the police officers who had made sworn affidavits in the internal police investigation.", "20. Counsel for the applicant argued that the journalist should be the last, rather than the first, means of arriving at the truth. The witnesses, whose examination had been requested by the three accused, ought to be heard first. Those witnesses could be confronted with the articles published in Sp!ts as well as with the article which had appeared in the weekly news magazine Vrij Nederland on 8 January 2000. This latter article had also suggested that the flooding of the flat had been staged, and the author had informed counsel for the applicant that the information contained in the article had not come from the same source as the one relied on by the applicant. Counsel for the applicant further posited that the State Criminal Investigation Department ( Rijksrecherche ) could carry out an investigation of the police force. Finally, it was for the Court of Appeal to assess the value of the article written by the applicant – that court could also decide to disregard it.", "21. By decision of 28 September 2000, the Court of Appeal refused the applicant's request for his detention to be lifted. It repeated that the interests of the accused and of the integrity of the police and the judicial authorities outweighed the interest of the applicant in not having to disclose the identity of his source. Having regard to the outcome of the internal police investigation, as well as to the fact that an appeal made by the police commissioner for the applicant's source to come forward had not produced any results, the Court of Appeal considered it unlikely that an investigation by the State Criminal Investigation Department would clarify, within a reasonable time, the cause of the flooding, quite apart from the fact that such an investigation would seriously delay the criminal proceedings against K., Van S. and H. The Court of Appeal similarly rejected the suggestion to hear the witnesses proposed by the defence first, given that those witnesses had already been heard extensively about the point in issue. For these reasons, it could not be held that the detention of the applicant breached the principles of proportionality and subsidiarity.", "22. The Court of Appeal further considered that the applicant's objections against the order for his detention as given at the hearing of 22 September 2000 did not require examination since no appeal lay against such order. It also rejected the argument that the order had not been served on the applicant within 24 hours, since – as appeared from the record of that hearing of 22 September – he had been informed of the order orally. Finally, the Court of Appeal held that the possibilities for contact between the applicant and his counsel were laid down in penitentiary legislation. It was not for the Court of Appeal to assess the application of that legislation.", "23. The applicant lodged an appeal on points of law to the Supreme Court ( Hoge Raad ) against the decision of the Court of Appeal.", "24. A second hearing before the Court of Appeal in the criminal proceedings against Van S. and H. took place on 9 October 2000. The applicant once again refused to reveal the identity of his source. Upon this, the Court of Appeal decided to lift the order for the applicant's detention. It considered that no support for, or confirmation of, the applicant's statement that he had received information from a police officer who had been involved in both investigations against the accused K. could be found in statements made by other persons and/or in the contents of documents. On the contrary, the applicant's statement had been contradicted by ten police officers. Therefore, no credence could be attached to his statement. This being the case, the applicant's detention no longer served any purpose.", "25. At the same hearing on 9 October 2000, and following the Court of Appeal's decision to lift the applicant's detention, counsel for the accused K. challenged ( wraken ) the Court of Appeal. A different chamber of the Court of Appeal upheld that challenge, also on 9 October 2000. It held that the opinion that the applicant's statement was not credible, as expressed by the Court of Appeal in the criminal proceedings against Van S. and H., might have a bearing on decisions which that court would be called upon to take in the criminal proceedings against K. This constituted an exceptional circumstance, providing an important indication for the conclusion that the accused's fear of a judge being prejudiced against him was objectively justified.", "26. The criminal proceedings against the three accused continued on 30 October 2000 before the Court of Appeal in a new composition. The applicant was again heard as a witness, as were seven other journalists who had also published articles about the case against K. and the possibility of the flooding having been staged. The Court of Appeal also heard two plumbers and the caretaker of the building.", "27. Subsequent to the decision to lift the order for his detention, the applicant withdrew his appeal on points of law as his release had rendered that appeal devoid of interest.", "28. According to the Government, the criminal proceedings against K., Van S. and H. have been brought to a conclusion.", "B. Other press reports", "29. The applicant has submitted photocopies of two cuttings from print media.", "30. The first is of a report in the mass circulation daily newspaper De Telegraaf, dated 24 September 1999. It is therein stated that following reports of flooding from a second flat in Amsterdam, police had found another large quantity of weaponry. Messrs K., Van S. and H., the accused in the applicant's case, were not at that time suspected of involvement; the weapons were thought to belong to a terrorist organisation. The report drew attention to the similarity between the Nachtwachtlaan case and this new case as regards the circumstances in which the weapons were found. It cited “police sources” as suggesting that intelligence services, possibly foreign, had engineered events in order to protect their informants.", "31. The second, which is incomplete, is of an article that appeared on 8 January 2000 in the weekly magazine Vrij Nederland. It links the two events and cites an unnamed source as stating that they had in fact been engineered by the then Netherlands National Security Service ( Binnenlandse Veiligheidsdienst – “ the BVD” ).", "32. It appears that the report in De Telegraaf and the article in Vrij Nederland were both written by journalists other than the applicant.", "33. The applicant has also submitted a printout of a page taken from the internet web site of the Amsterdam daily newspaper Het Parool, dated 27 September 2000. It quotes the two plumbers who were called in to repair the water leak as dismissing as nonsense all allegations that the damage had been caused deliberately; in actual fact, such leaks were very common in older buildings.", "i. the name and personal data as well as voice and image of a source, ii. the factual circumstances of acquiring information from a source by a journalist, iii. the unpublished content of the information provided by a source to a journalist, andiv. personal data of journalists and their employers related to their professional work.", "Principle 1 (Right of non-disclosure of journalists)", "Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.", "Principle 2 (Right of non-disclosure of other persons)", "Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.", "Principle 3 (Limits to the right of non-disclosure)", "a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.", "b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:", "i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and", "ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:", "- an overriding requirement of the need for disclosure is proved,", "- the circumstances are of a sufficiently vital and serious nature,", "- the necessity of the disclosure is identified as responding to a pressing social need, and", "- member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.", "c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.", "Principle 4 (Alternative evidence to journalists'sources)", "In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.", "Principle 5 (Conditions concerning disclosures)", "a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.", "b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.", "c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.", "d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.", "e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.", "Principle 6 (Interception of communication, surveillance and judicial search and seizure)", "a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:", "i. interception orders or actions concerning communication or correspondence of journalists or their employers,", "ii. surveillance orders or actions concerning journalists, their contacts or their employers, or", "iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.", "b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.", "Principle 7 (Protection against self-incrimination)", "The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source. ”", "44. For the precise application of the Recommendation, the explanatory notes clarify the meaning of certain terms. As regards the term “sources” the explanation reads as follows:", "“ c. Source", "17. Any person who provides information to a journalist shall be considered as his or her'source'. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the'potentially chilling effect'an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being'provided'when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source. ”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. The Netherlands Code of Criminal Procedure", "34. Provisions of the Code of Criminal Procedure relevant to the case provide as follows:", "Article 218", "“Persons who, by virtue of their position, their profession or their office, are bound to secrecy may ... decline to give evidence or to answer particular questions, but only in relation to matters the knowledge of which is entrusted to them in that capacity.”", "Article 294", "“1. If during the interrogation the witness refuses, for no lawful reason, to answer the questions put to him or to take the required oath or affirmation, the court shall, if the investigation urgently so requires, order his detention ( gijzeling ).", "2. The witness and his counsel shall be heard about the reasons for his refusal before the order is given.", "3. The detention order shall be valid for no more thirty days; the court shall at the same time order the time at which the witness is to be presented before it anew. No remedy shall lie against the order.", "4. The court shall order the witness released from detention as soon as he has fulfilled his obligations or the investigation at the hearing is closed. It shall however have competence to order the witness released from detention whatever the state of the investigation, including at the request of the witness. Article 223 § 3 shall apply.", "5. Articles 224 and 225 shall apply.”", "35. Articles 223, 224 and 225, which are thus declared applicable to witnesses at the trial hearing, per se apply to witnesses heard by an investigating judge.", "36. Article 223 § 3 provides, in relevant part, that the detained witness may appeal within three days after the official notification in writing of the decision against any refusal to order his release from detention and may appeal on points of law to the Supreme Court against any such refusal given on appeal.", "37. Article 224 provides that the witness shall receive notification in writing within twenty-four hours of all decisions to order or extend his detention or to refuse his release from detention.", "38. Article 225 provides that the witness shall have the right to consult counsel. His counsel shall have unrestricted access ( vrije toegang ) to him, be allowed to see him in private and exchange confidential correspondence with him, subject to detention rules and provided that the criminal investigation in which his evidence was sought not be delayed. Counsel shall also have access to any official records relating to the questioning of the witness and, if the criminal investigation admits of it, the remainder of the case file.", "39. Although these provisions by their wording apply to proceedings at first instance before the Regional Court, by virtue of Article 415 they apply by analogy to appeal proceedings before the Court of Appeal.", "B. The Guidelines on the position of the press in relation to police action", "40. The Guidelines on the position of the press in relation to police action ( Leidraad over de positie van de pers bij politieoptreden ) were issued by the Minister of Justice ( Minister van Justitie ) on 19 May 1988. At the time of the events complained of, they provided, in relevant part:", "“ 7. Seizure of journalistic material", "Journalistic material may be seized in cases described in the Code of Criminal Procedure. Journalists may be faced with seizure in two ways.", "A. The police may, on the instructions of a public prosecutor ( officier van justitie ) or an assistant public prosecutor ( hulpofficier van justitie ) or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot.", "There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed. In this situation, the journalist is arrested like any ordinary citizen.", "If a prosecution ensues, it will be for the independent judge eventually to decide what is to be done with any seized – and unpublished – material.", "B. Journalistic material may also be seized on the orders of an independent judge (the investigating judge), if such material may – in the judge's opinion – serve to clarify the truth in a preliminary judicial investigation ( gerechtelijk vooronderzoek ).", "...”", "41. This section of the Guidelines was replaced with effect from 1 April 2002 by the “Directive on the application of coercive measures to journalists” ( Aanwijzing toepassing dwangmiddelen bij journalisten ), issued by the Board of Procurators General ( College van procureurs ‑ generaal ). This directive makes extensive reference to the Court's case-law. If the protection of a journalist's source is at issue, the use of coercive measures must be in accordance with Article 10 § 2 with due regard to requirements of proportionality and subsidiarity.", "C. Relevant domestic case-law", "42. In a civil case – brought by persons named in connection with alleged bribery against two journalists who had allegedly made use of information leaked by officials – the Supreme Court, reversing earlier case-law, held (judgment of 10 May 1996, Nederlandse Jurisprudentie (Netherlands Law Reports) 1996, no. 578):", "“It follows from the said judgment [i.e. Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996 ‑ II] that it must be accepted that it follows from Article 10 § 1 of the Convention that in principle a journalist has the right to refuse to answer a question put to him if he were thus to risk disclosing his source, but that the court does not have to honour a claim based on this right when it considers that in the particular circumstances of the case disclosing the source is necessary in a democratic society in pursuit of one or more of the aims referred to in the second paragraph of the said Convention provision, which must be stated and for which, if necessary, a prima facie case must be made out by the person who calls the journalist as a witness.", "...", "It is apparent from the decision of the Court of Appeal and the other documents contained in the case file that the present case is characterised in that, as stated by [the plaintiffs], the'leaked'information relates to a criminal investigation into alleged bribery of a number of local government officials in the province of Limburg, in that information relating to the supposed involvement of [the plaintiffs] in such cases of bribery has already been made public and that [the plaintiffs] have sued [the newspaper] De Limburger for damages which they claim resulted therefrom (...). Accordingly, [the plaintiffs] have claimed no other interest in the disclosure of [the defendants'] sources than that they wish to know who has'leaked', because they wish eventually to sue the State and the persons concerned themselves for damages and also to obtain an injunction against the persons concerned to restrain them from any further'leaking'. However, the said judgment of the European Court of Human Rights compels the Supreme Court to find that this interest in itself is insufficient to counterbalance the weighty public interest which belongs to the protection of [the defendants'] sources.”", "D. Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information", "43. Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000. It states, in relevant part:", "“[The Committee of Ministers] Recommends to the governments of member States:", "1. to implement in their domestic law and practice the principles appended to this recommendation,", "2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and", "3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.", "Appendix to Recommendation No. R (2000) 7", "Principles concerning the right of journalists not to disclose their sources of information", "Definitions", "For the purposes of this Recommendation:", "a. the term'journalist'means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;", "b. the term'information'means any statement of fact, opinion or idea in the form of text, sound and/or picture;", "c. the term'source'means any person who provides information to a journalist;", "d. the term'information identifying a source'means, as far as this is likely to lead to the identification of a source:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "45. The applicant complained of the denial of his right as a journalist not to disclose his source of information and the order to detain him in order to compel him to do so. He relied on Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "46. The Government denied that there had been any such violation.", "A. Admissibility", "47. The Government initially objected in limine that since the applicant had failed to pursue his appeal on points of law to a conclusion (see paragraph 27 above) it followed that he had not exhausted the domestic remedies available. However, by a letter of 2 March 2006 they withdrew that objection on the ground that the Supreme Court would have dismissed the appeal as inadmissible given that the applicant had already been released.", "48. The Court notes that the applicant's complaint under Article 10 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Whether there has been an “interference” with the applicant's rights under Article 10 of the Convention", "49. Both parties agreed that there had been an interference with the applicant's rights under Article 10 of the Convention. Indeed it is clear that the applicant was subjected to “formalities, conditions, restrictions or penalties” in that his refusal to name his source led the Court of Appeal to order his detention in an attempt to compel him to speak.", "2. Whether the interference was “prescribed by law”", "50. The Government argued that the applicant's detention had a statutory basis in the form of Article 294 of the Code of Criminal Procedure as clarified by the case-law of the Supreme Court. Moreover, procedural safeguards were sufficient.", "51. The applicant disagreed: in his view the Court of Appeal had failed to establish any real need for his detention, let alone an “urgent” need, even though Article 294 § 1 made urgency a precondition for any decision to detain a witness on grounds of refusing to give evidence.", "52. The Court considers that the applicant's argument does not concern the lawfulness of the interference so much as the question of its “necessity in a democratic society”. It is more appropriately considered under that head.", "53. The Court further notes that the applicant's detention was ordered on the basis of Article 294 § 1 of the Code of Criminal Procedure. For the purposes of Article 10 of the Convention, the Court finds that the basis in domestic law for the applicant's detention was adequate.", "3. Whether the interference pursued a “legitimate aim”", "54. The Government stated that the interference was intended for “the protection of the reputation or rights of others”, namely the integrity of the judiciary and the Amsterdam police. They also referred to legitimate purposes such as “public safety” and “the prevention of disorder or crime”.", "55. The applicant argued that in the circumstances of his case, the integrity of the judiciary and the Amsterdam police required him to expose abuses of official authority while keeping the identity of his source a secret. Moreover, he had been called as a witness in criminal proceedings at the request of the defence; the integrity of the judiciary or the police had not in themselves been at issue in the proceedings.", "56. The Court is satisfied that the interference was intended at any rate to further the prevention of crime.", "4. Whether the interference was “necessary in a democratic society”", "57. The Government referred to the exception mentioned in principle 3 of Committee of Ministers Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information (see paragraph 43 above) and argued that it applied. In particular, they submitted that the requirements of subsidiarity and proportionality therein contained had been met.", "58. Firstly, as to subsidiarity, they stated that no reasonable alternative means to obtain disclosure of the information concerned was available to them. There had been an investigation by the judicial authorities in the wake of allegations of police misconduct made by the defence in Mr K.'s case long before the applicant had been ordered detained. This, however, had not provided any information. When the applicant was ordered detained, an investigation into the conduct of police officers involved in the investigations against Mr K. was launched as a precautionary measure. This had not yielded any information either, as was only to be expected: the applicant's informant – if there ever was an informant – had necessarily been a police officer who could expect to face “grave repercussions” for having made such serious allegations in an important criminal investigation. Any further investigations by the State Criminal Investigation Department ( Rijksrecherche ), the official body created to investigate alleged cases of police wrongdoing, would have held up the trial of Mr K. unacceptably.", "59. Secondly, as to proportionality, the applicant's statements had a direct bearing on the integrity of the police and the judiciary in the Amsterdam region. If the applicant's published allegations were correct, the effect on the rule of law in the Netherlands would be catastrophic. Moreover, the applicants'allegations had a direct impact on the conviction of the accused, who had been sentenced to long terms of imprisonment and who had an interest in obtaining an enquiry into the alleged unfairness of the investigation against them.", "60. Thirdly and finally, the applicant had been kept detained for no longer than 17 days and had been released as soon as the court no longer considered his detention needful.", "61. The applicant disagreed. He contended that the Amsterdam Court of Appeal had failed to balance his Article 10 rights against any interest, whether the rights of the defence or any other. In addition, arms trafficking was not among the crimes listed in the Committee of Ministers Recommendation as serious enough to justify compelling a journalist to disclose his source. At all events, the weapons found in the Nachtwachtlaan building had been seized as soon as they had been found and had therefore posed no danger to the public by the time of the events complained of.", "62. In the second place, the requirement of subsidiarity had not been met. Of the fourteen witnesses called by the defence, only three (including himself) had been summonsed at that time; the Court of Appeal had refused to summons the other eleven. Moreover, although a second investigation had been held as the Government stated, this had been done only after the applicant had been ordered detained. Similarly, only after the applicant had been detained did the Court of Appeal hear other journalists who had reported on the flooding matter. Finally, the Government's admission that an investigation by the State Criminal Investigation Department had been considered but decided against for reasons of expediency showed that that possibility had in fact existed.", "63. The Court has stated the principles generally applicable as follows (see, among many other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § § 88-91, ECHR 2004 ‑ XI, case-law references omitted):", "“88. The test of'necessity in a democratic society'requires the Court to determine whether the interference complained of corresponded to a'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court. The Court is therefore empowered to give the final ruling on whether a'restriction'is reconcilable with freedom of expression as protected by Article 10 ( ... ).", "89. The Court's task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation ( ... ). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them ( ... ).", "90. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were'relevant and sufficient'and whether the measure taken was'proportionate to the legitimate aims pursued'( ... ). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 ( ... ). ”", "64. Since 1985 the Court has frequently made mention of the task of the press as purveyor of information and “ public watchdog ” (see, among many other authorities, Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, p. 26, § 58; Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 27, § 44; Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 27, § 63; more recently, Cumpǎnǎ and Mazǎre, cited above, § 93).", "65. Protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments including the Committee of Ministers Recommendation quoted in paragraph 43 above. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996 ‑ II, p. 500, § 39; more recently and mutatis mutandis, Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003 ‑ IV ).", "66. As the Court understands the Government's argument, the applicant was required to identify his source for two reasons: firstly, to guard the integrity of the Amsterdam police; and secondly, to secure a fair trial for the accused.", "67. The Court sees no need on this occasion to consider whether under any conditions a Contracting Party's duty to provide a fair trial may justify compelling a journalist to disclose his source. Whatever the potential significance in the criminal proceedings of the information which the Court of Appeal tried to obtain from the applicant, the Court of Appeal was not prevented from considering the merits of the charges against the three accused; it was apparently able to substitute the evidence of other witnesses for that which it had attempted to extract from the applicant (see paragraph 26 above). That being so, this reason given for the interference complained of lacks relevance.", "68. That leaves the Court to consider the other interest relied on by the Government, which was to identify the applicant's source for their own purposes.", "69. The Court is not in a position to establish whether or not there was any truth in the allegations published by the applicant. It notes that both the Advocate General and the Court of Appeal took them seriously enough for the applicant's detention to be ordered for more than two weeks, and that similar allegations were aired in print media other than the newspaper Sp!ts, but that the Court of Appeal eventually dismissed the report published by the applicant as implausible.", "70. On the one hand the Court understands the Government's concern about the possible effects of any suggestion of foul play on the part of public authority, especially if it is false. On the other hand, however, it takes the view that in a democratic state governed by the rule of law the use of improper methods by public authority is precisely the kind of issue about which the public have the right to be informed (compare, for example, Thorgeir Thorgeirson, cited above, p. 28, § 67, and Cumpǎnǎ and Mazǎre, cited above, § 95 ). It is in this light that the Court views the Government's admission (apparently contradicting the Advocate General – see paragraph 10 above) that the applicant's source faced “grave repercussions” if exposed.", "71. Whatever the consequences might have been for the source, the Court is struck by the lengths to which the Netherlands authorities were prepared to go to learn his or her identity. Such far-reaching measures cannot but discourage persons who have true and accurate information relating to wrongdoing of the kind here at issue from coming forward and sharing their knowledge with the press in future cases.", "72. The Court finds that the facts to be considered tip the balance of competing interests in favour of the interest of democratic society in securing a free press. On the facts of the present case, the Court does not find that the Government's interest in knowing the identity of the applicant's source was sufficient to override the applicant's interest in concealing it (compare Goodwin, cited above, p. 502, § 45).", "73. This finding dispenses the Court from considering the Government's remaining argument, namely that the length of the applicant's detention was not disproportionate when viewed in relation to the interests involved.", "74. In conclusion, there has been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION", "75. The applicant complained that, contrary to domestic law, he had not been provided with a copy of the order for his detention in writing within twenty-four hours; he also complained that the written copy, when he eventually received it, contained no reasoning. He relied on Article 5 § 1 of the Convention, which, in relevant part, reads as follows:", "“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law ...”", "76. The Government denied that the applicant had been a victim of the violation alleged.", "A. Admissibility", "1. The Government's preliminary objection", "77. The Government took the view that the applicant had suffered no actual adverse consequences as a result of the facts complained of. There was, after all, no doubt that the applicant was aware of the sanction taken against him and the reasons for it: the Court of Appeal had explained the reasons for the order in question orally to the applicant in person. It followed that the applicant could not claim to be a “victim” within the meaning of Article 34 of the Convention.", "78. The applicant repeated that he had not been given a reasoned detention order within twenty-four hours as required by domestic law.", "79. As the Court has held many times, the existence of a violation is conceivable even in the absence of prejudice or damage; the question whether an applicant has actually been placed in an unfavourable position is not a matter for Article 34 of the Convention and the issue of damage becomes relevant only in the context of Article 41 (see, among many other authorities, Marckx v. Belgium, 13 June 1979, Series A no. 31, p. 13, § 27; as a recent example, The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, § 6 5, ECHR 2006 ‑ ... ). Absent any measure favourable to the applicant, let alone any acknowledgement of a violation by the domestic authorities (see, among many other authorities, Ždanoka v. Latvia [GC], no. 58278/00, § 69, ECHR 2006 ‑ ...), the Court sees no reason to come to any different decision in the present case. The Government's preliminary objection must therefore be dismissed.", "2. Conclusion as to admissibility", "80. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "81. The Government did not attempt to argue that domestic law had been complied with.", "82. As the Court has held many times, on the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law” the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185 ‑ A, p. 11, § 24; Öcalan v. Turkey [GC], no. 46221/99, § 83, 12 May 200 5; and Nakach v. the Netherlands, no. 5379/02, § 37, 30 June 2005 ).", "83. The Court observes that, although the decision ordering the applicant detained on the ground of refusing to give evidence was not required to be reasoned as the applicant suggested, domestic law did provide for notification in writing of the detention order within twenty-four hours (Article 224 of the Code of Criminal Procedure – see paragraph 37 above). The Government do not deny that the applicant was only provided with a written copy of the order some three days later. The Court therefore finds that the procedure prescribed by law has not been followed. There has accordingly been a violation of Article 5 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "84. The applicant raised under Article 6 of the Convention the same complaints as he had made under Article 5. Article 6, in relevant part, provides as follows:", "“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”", "85. The Government did not comment.", "86. The Court observes that the duty to give evidence in criminal proceedings is ordinarily a normal civic duty in a democratic society governed by the rule of law. An order to give evidence does not involve the determination of the witness's “civil rights and obligations” (see British Broadcasting Corporation v. the United Kingdom, no. 25798/94, Commission decision of 18 January 1996); nor does it involve the determination of a “criminal charge” against the witness. This complaint is therefore incompatible ratione materiae with Article 6 of the Convention within the meaning of Article 35 § 3 and must be declared inadmissible in accordance with Article 35 § 4.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "87. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "88. The applicant submitted no claim for damages.", "89. He claimed EUR 23,104.77 including value-added tax for the costs and expenses incurred before the Court.", "90. The Government considered these claims excessive.", "91. According to the Court's case-law, costs and expenses are recoverable under Article 41 provided that they were incurred by the injured party in order to seek, through the domestic legal order, prevention or rectification of a violation, to have the same established by the Court or to obtain redress therefor. Furthermore, it has to be established that the costs and expenses were actually incurred, were necessarily incurred and were also reasonable as to quantum (see, among many other authorities, Dudgeon v. the United Kingdom (former Article 50), judgment of 24 February 1983, Series A no. 59, p. 9, § 20 ).", "92. The invoices for the applicant's representation have been made out to Telegraaf Media Groep N.V., the proprietor of the newspaper Sp!ts. It has not been shown that the applicant is himself liable for any costs. That being so the Court rejects his claims (see Dudgeon (former Article 50), cited above, p. 10, § 22)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The facts of the case, as submitted by the applicants, may be summarised as follows.", "A. The background", "6. On 30 October 2001 the board of Interbrew, a Belgian brewing company, asked its investment bank advisers, Goldman Sachs (“GS”) and Lazard, to carry out work on a potential association between Interbrew and South African Breweries plc (“SAB”), a competitor in the brewing industry, with a view to a possible takeover bid for SAB by Interbrew.", "7. On 18 November 2001 GS produced a document in relation to the possible takeover. The document was confidential and contained data which were likely to affect both Interbrew and SAB's share prices. It formed the basis of a presentation which, on 20 November 2001, was submitted to Interbrew's internal mergers and acquisitions department.", "8. On an unknown date a person (“ X ”) whose identity is unknown, even by the applicants, came into possession of a copy of the presentation submitted to Interbrew. On 27 November 2001 X sent copies of a document (“the leaked document”) to various news media organisations, including the FT, The Guardian, The Times and Reuters, from an address in Belgium. On Interbrew's evidence the leaked document was very similar if not identical to the Interbrew presentation, except for the following: (a) the substitution of an offer price for SAB shares of between 500 and 650 pence in place of the price of between 400 and 550 pence, which had apparently been in the original presentation; and (b) the insertion of a timetable for making the offer.", "B. The press coverage", "9. On 27 November 2001 Mr Jones, a journalist at the FT, received a copy of the leaked document from X. At 5p. m. that day, he telephoned Mr Van Praag of GS and told him that he had received the leaked document and that he intended to publish it. Mr Van Praag reported the conversation to Mr Powell, the Chief Executive Officer of Interbrew. Mr Powell telephoned Mr Jones and told him, on the record, that Interbrew had carried out research into SAB but that it was not in the advanced stage of preparing an offer. At about 10p. m. , the FT published an article on its website stating that Interbrew had been plotting a bid for SAB, that documents seen by the FT indicated that an approach could be made on 3 December 2001 and referring to the conversation between Mr Jones and Mr Powell. The article did not state the proposed offer price but gave accurate codenames used for the advisers in the presentation and quoted from the document on the likely positive market reaction and with reference to potential rival bids. The FT published an article in the same terms in its newspaper the next morning.", "10. At about 5.30p. m. on 27 November 2001 The Times received a copy of the leaked document from X. In its second edition, which reached the news stands at about 5 a. m. on 28 November 2001, it published an article referring to the “confidential” document which it had seen, a supposed approach to SAB “this weekend”, a plot to bid GBP 4.6 billion for SAB and an offer expected to be pitched at up to 590 pence per share.", "11. At 12.51a. m. on 28 November 2001 Reuters reported the FT's story and the rise in the share price of SAB on the Johannesburg Stock Exchange on its wire service. Reuters received a copy of the leaked document from X on the afternoon of 28 November 2001 and, at 2.44p. m. , published a further article referring to its receipt of the leaked document.", "12. At about 8.30 a. m. on 28 November 2001 GS and Lazards contacted the Takeover Panel, which asked Interbrew to make a statement. In response, at about 12.15 p. m. , Interbrew issued a press release confirming that it had undertaken a preliminary analysis of SAB as part of its routine annual review of the leading brewers of the world; that the analysis was at a very preliminary stage which might or might not lead to an offer at some time in the future; but that no approach had been made.", "13. On 28 November 2001 The Guardian received a copy of the leaked document from X. On 29 November 2001 it published an article referring to the “secret document” prepared by GS and Lazards, which it stated had been “couriered” to a “large chunk” of the business press, and mentioning the leaking of previous bids by Interbrew.", "14. The Independent did not receive a copy of the leaked document directly from X. However, it did take steps to obtain a copy from another source that it knew but undertook not to reveal it. On 29 November it published two articles about the leaked document, one of which stated that the offer price and timetable appeared bogus.", "15. On 29 November 2001 Interbrew, in agreement with the Takeover Panel, published a second statement to the press, alleging that the leaked document contained fabrications. This statement was reported by each of the applicants, who continued to publish articles on the topics of doctored copies and a possible bid.", "16. The impact of this press coverage on the market in shares of Interbrew and SAB appears to have been significant. Interbrew's share price at market on 27 November 2001 was EUR 29.40. By midday the next day it was EUR 27.20. It was EUR 28.25 after the press release and at market close. The SAB share price at market close on 27 November 2001 was 442.74 pence and at market close on 28 November 2001 was 478 pence. The volume of SAB's shares traded on 27 November 2001 was less than 2 million. On 28 November 2001 it was more than 4 4 million.", "17. On 30 November 2001 Interbrew instructed Kroll, the security and risk consultants, to assist in identifying X. Kroll did not identify X. On 6 December 2001 Interbrew made a criminal complaint to the Examining Magistrate of the Brussels Court of First Instance, together with a claim for civil damages, against a person or persons unknown.", "C. The Norwich Pharmacal proceedings", "18. On 10 December 2001 Interbrew launched proceedings against the applicants in the High Court following advice from Kroll that access to the original documents might vitally assist the investigation. Given that the applicants were not aware of the identity of X, Interbrew lodged a claim for :", "“1. delivery up of documents:", "1.1 containing or relating to an analysis of [ SAB ] prepared by [ GS ] and/or [ Lazards ]; and", "1.2 evidencing or containing discussions with any journalistic source in respect of the subject matter of 1.1;", "2. disclosure of such documents;", "3. an order that the Defendants do disclose the name and address of:", "3.1 any journalistic source who had provided them with the documents referred to in 1.1;", "3.2 any journalistic source with whom they have had the discussions referred to at 1.2 ... ”", "19. At the same time Interbrew, without notice to the applicants, applied for, and was granted, a temporary injunction from the High Court in the following terms :", "“ 1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 1 thereof", "2. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3 at paragraph 2 thereof", "3. The Defendants must within 24 hours of service of this Order deliver up the two categories of documents referred to at Schedule 3 ... to the custody of solicitors appointed on their behalf to be held until further Order herein ...", "4. The Defendants must within 48 hours of service of this Order serve on the Claimant's Solicitors a list of", "4.1 the Documents within their control", "4.2 those of the Documents which were formerly in their control but are no longer in their control, explaining what has happened to them", "and confirm the facts set out in this paragraph by means of a signed witness statement containing a Statement of Truth also within 48 hours of service of this Order", "PROVIDED THAT this Order shall not require the Defendants to provide any information which would disclose the source of information contained in a publication for which the Defendants are responsible.", "...", "SCHEDULE 3", "The Documents", "1. Documents including draft documents and copy documents (whether received by the Defendants as copy documents or copies by the Defendants) provided to the Defendants by any third party subsequent to 23 November 2001 containing or relating to an analysis of [ SAB ] prepared by [GS] and/or [ Lazards].", "2. Documents evidencing or containing discussions with any journalistic source subsequent to 23 November 2001 relating to an analysis of SAB prepared by [GS] and/or [ Lazards], together with the envelopes or packaging in which they were delivered to the Defendants and any additional documents contained therein.”", "20. On 11 December 2001, Interbrew sought an order in different terms from the one granted on 10 December 2001. Instead of the original paragraph 4 of the order, Interbrew sought an order requiring the applicants to serve, within 48 hours, a witness statement setting out the names and addresses of every person who had provided them with the Schedule 3(1) documents and every person with whom they had had discussions evidenced or contained in the Schedule 3(2) documents and, if these identities were not known, the circumstances in which they received the documents, to the best of their knowledge. On 12 December 2001, the judge ordered that paragraphs 3 and 4 of the order of 10 December 2001 be discharged in their entirety.", "21. An expedited hearing on Interbrew's application for an injunction took place on 14 and 17 December 2001 before the High Court. Interbrew invoked the Norwich Pharmacal principle (see paragraph 2 9 below) whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer.", "22. On 19 December 2001 the High Court ( Interbrew v. Financial Times et al. [2001] EWHC Ch 480) ordered delivery up of the documents under the Norwich Pharmacal principle in the following terms:", "“1. The Defendants must not alter, deface, dispose of or otherwise deal with the documents referred to in Schedule 3.", "2. The Defendants must within 24 hours of service of this Order deliver up the documents and other materials referred to at Schedule 3 ... to the Claimant's solicitor ... ”", "23. The judge found (at paragraph 34) that:", "“What [X] has done is deliberately to admix with that confidential information false information (a lethal concoction) to create a false market in the shares of the Claimant and SAB, a serious criminal offence. There must be a real risk of repetition, if [X] is not identified. Beyond the substantial private interest of the Claimant, there is a substantial public interest in identifying [X] and taking all necessary steps to prevent any repetition. As it seems to me, the circumstances of this case are exceptional: vital public as well as individual interests are at stake in securing the integrity of the share market. There is an overriding need for the disclosure sought in the interests of justice and for the prevention of crime”.", "24. The judge continued (at paragraph 37):", "“As it seems to me the Claimant has sufficiently explored other avenues before having recourse to this application for relief against the press ... There have been internal investigations conducted at the Advisers'and the Claimant's businesses; the Claimant is conducting inquiries further afield. The Claimant is using investigators of the highest international calibre. The Defendants complain that full details of all the Claimant's inquiries are not given in the Claimant's evidence and that this is necessary in order to establish how thorough they have been, but there is no substance in this complaint. The evidence establishes to my satisfaction that full and proper investigations have been made and are continuing. To require disclosure of more details of these investigations is unnecessary even as such a course may prejudice the ongoing inquiries ... The evidence before me (and most particularly a report by Kroll) establishes that the Claimant needs the information which production of the Documents ought to provide to further and give impetus to these investigations ... I am satisfied that the order is required if progress is to be made whilst the trail is still warm and if an identification is to be made within the time frame necessary to safeguard the interests of the Claimant and the public. ”", "25. The applicants were granted leave to appeal by the Court of Appeal on 20 December 2001 and were required to file their written arguments with the court by 28 December 2001. By judgment of 8 March 2002 the Court of Appeal dismissed the applicants'appeal ( Interbrew v. Financial Times et al. [2002] EWCA Civ 274 ). In the leading judgment of Sedley LJ, the Court of Appeal held that in order to justify the exercise of Norwich Pharmacal powers to compel production of documents or disclosure of information, Interbrew had to establish that each defendant had facilitated a civil wrong committed by an unknown person against whom they aimed to seek redress. The only civil wrong on which Interbrew could rely was that of a breach of confidence on the part of the source. While such a breach of confidence had been made out, what had not been made out was a “bigger and better cause of action in respect of the'lethal cocktail'of fact and falsehood, since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort” ( at paragraph 28).", "26. Sedley LJ went on to consider the approach adopted by the High Court as follows (at paragraphs 40-41):", "“ Everything proceeded below on the assumption that crimes of forgery and market manipulation were proved. But both, or at least the former, depend upon the falsity of the pages in the document showing bid price and timetable. False they were if one goes on such evidence as was before the court. But by definition their falsity is alleged against an absent and silent accused. We have no way of knowing, any more than – as [counsel for the applicants] stressed – the five defendants do, whether the source, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards.", "I have to say that I find this aspect of the Norwich Pharmacal procedure troubling. A commercial enterprise which may very well have its own reasons for denying the authenticity of a document gets a clear run against a media defendant which can only, save in rare cases, take a neutral stand on the question. The court of first instance needs to be extremely circumspect before accepting evidence, especially when, as here, it is second- or third-hand, that goes to the heart of the case and cannot be controverted ... ”", "27. However, Sedley LJ concluded :", "“ 49. ... I have come to the conclusion, though not without misgiving, that the order for disclosure was rightly made against all the defendants. Nothing which has been put before us suggests that the court will be significantly better placed at an eventual trial than it is now to decide the key issues; and there is at least some force in Interbrew's complaint that its hands are tied vis-à-vis South African Breweries, and possibly other targets too, unless and until it can prevent a recurrence of this spoiling operation.", "50. ... Interbrew's prima facie entitlement to delivery up of the documents is established because – and solely because – it may enable them to ascertain the identity of the proper defendant to a breach of confidence action relating to the relatively anodyne, though not the explosive, parts of the document. From the sweep of Interbrew's original case and the “lethal cocktail” on which Lightman J founded his conclusions, the basis of the application now shrinks to this little measure. But though little, it is far from insignificant for Interbrew ...", "51. With it, one turns to s.10 of the 1981 Act. The section begins by barring any order for disclosure in circumstances such as these, since its very object is to discover the source of information which the defendants have published. Interbrew, however, can invoke one of the listed purposes for lifting the bar: that disclosure is necessary in the interests of justice. That it may also go to the prevention of crime cannot be ruled out as irrelevant, but it is peripheral because it is not a purpose for which Interbrew themselves are entitled to disclosure. Then is the public interest in the doing of justice sufficient in the particular circumstances of this case to make disclosure necessary? Reading that question through the lens of the Convention and its jurisprudence, as we are now required to do, the following elements separate themselves out.", "52. First, what is the nature and weight of the public interest in the confidentiality of sources? The right of free expression enshrined in art. 10 is undifferentiated, but as the European Court of Human Rights said in Goodwin ,'freedom of expression constitutes one of the essential foundations of a democratic society', and'[p]rotection of journalistic sources is one of the basic conditions for press freedom'(paras. 39, 40). Much judicial authority in this country says the same. The news media, in consequence, enjoy in s.10 of the 1981 Act a high initial level of protection, not in their own but in the public interest.", "53. The entitlement to reverse the balance is prescribed by law, as art. 10(2) requires. A required ground for doing so, founded on the no less important public interest in an effective system of justice, is present. Is it then necessary to reverse the balance? The following elements seem to me to matter here:", "...", "• Any invasion of the protection must meet a pressing social need – not merely an individual one. This meets the need to counterpose one public interest to another. Here the need, in terms of s.10, is to enable Interbrew to restrain by court action any further breach of confidence by the source and possibly to recover damages for losses already sustained. In terms of art. 10(2) it is to protect the rights of Interbrew.", "• There must be no less invasive alternative. While I would not adopt the judge's approach of simply refusing to second-guess the view of the aggrieved parties'solicitors, I would infer from the evidence that as much has been done as can at present be done by the use of reputable private detectives to trace the source. I can see that to demand particulars of the admittedly general assertions about this could jeopardise the exercise.", "...", "54. It seems to me that once the legitimacy of Interbrew's intended resort to law is accepted, the relatively modest leak of which they are entitled to complain does not diminish the prospective seriousness for them of its repetition. For the media, on the other hand, the public interest in their freedom to publish is constant, and with it the public interest in the confidentiality of their sources. While I do not think that the character of the material is irrelevant as a matter of law, I agree with Laws LJ in Ashworth at least to this extent, that it cannot be for the court to decide how interesting or important it thinks the material is. That is for journalists and their editors. But it may follow that the more the press decide to make of a story, the greater will be the affected party's legitimate interest in finding and suppressing its source.", "55. What in my judgment matters critically, at least in the present situation, is the source's evident purpose. It was on any view a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing public or Interbrew or both. It is legitimate in reaching this view to have regard not only to what Interbrew assert is the genuine document but also to the interpolated pages; for whether they are forged or authentic, integral or added, they were calculated to maximise the mischief. To this factual extent the'lethal cocktail'is material, despite its legal irrelevance to the earlier stages of the inquiry. The public interest in protecting the source of such a leak is in my judgment not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source .”", "28. On 9 July 2002 the House of Lords refused the applicants leave to appeal, following which Interbrew required the applicants to comply with the court order for delivery up of the documents. The applicants have refused to comply. While Interbrew has instituted enforcement proceedings against The Guardian, it has not pursued these proceedings.", "i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and", "ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non -disclosure, bearing in mind that:", "- an overriding requirement of the need for disclosure is proved,", "- the circumstances are of a sufficiently vital and serious nature,", "- the necessity of the disclosure is identified as responding to a pressing social need, and", "- member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.", "c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked. ”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Duty of assistance and disclosure", "29. The exercise of the power to require the delivery up of otherwise confidential information derives from the jurisdiction established by the decision of the House of Lords in Norwich Pharmacal v. Customs & Excise Commissioners [1974] AC 133 at page 175 :", "“[The authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration. ”", "30. That power is subject to section 10 of the Contempt of Court Act 1981 (“the 1981 Act”) which provides that :", "“ No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime. ”", "31. Prior to the proceedings in the present case, the Court of Appeal had held in Ashworth Hospital Authority v. MGN Ltd [2001] 1 All ER 991 that the phrase “ the interests of justice ” in section 10 of the 1981 Act was wide enough to include the exercise of legal rights and the ability to seek protection from legal wrongs, whether or not by court action. This interpretation was later confirmed by the House of Lords in Ashworth Hospital Authority v. MGN Ltd [2002] 1 WLR 2003.", "32. In Ashworth, the High Court granted an order compelling the Mirror newspaper to reveal a source to Ashworth Hospital. The Mirror subsequently disclosed its source as Robin Ackroyd, an investigative journalist. Ashworth brought new proceedings to seek an order for disclosure against Mr Ackroyd and applied for summary judgment on the grounds that the case was indistinguishable from that of the Mirror in the previous Ashworth case. Mr Ackroyd submitted that the facts were materially different. The High Court granted the order requested but it was overturned on appeal to the Court of Appeal which held in Mersey Care NHS Trust v. Robin Ackroyd [2003] EWCA Civ 663 at paragraph 70 that :", "“ Protection of journalistic sources is one of the basic conditions for press freedom in a democratic society. An order for source disclosure cannot be compatible with Article 10 of the European Convention unless it is justified by an overriding requirement in the public interest. Although there is a clear public interest in preserving the confidentiality of medical records, that alone cannot, in my view, be automatically regarded as an overriding requirement without examining the facts of a particular case. It would be an exceptional case indeed if a journalist were ordered to disclose the identity of his source without the facts of his case being fully examined. I do not say that literally every journalist against whom an order for source disclosure is sought should be entitled to a trial. But the nature of the subject matter argues in favour of a trial in most cases ... ”", "B. Civil proceedings in England and Wales", "33. The Civil Procedure Rules ( “ CPR ” ) govern procedure in civil proceedings in England and Wales. Relevant excerpts of the CPR provide as follows:", "“ Rule 18.1", "(1) The court may at any time order a party to –", "(a) clarify any matter which is in dispute in the proceedings; or", "(b) give additional information in relation to any such matter,", "whether or not the matter is contained or referred to in a statement of case.", "(2) Paragraph (1) is subject to any rule of law to the contrary.", "...", "Rule 32.2", "(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved –", "(a) at trial, by their oral evidence given in public; and", "(b) at any other hearing, by their evidence in writing.", "(2) This is subject –", "(a) to any provision to the contrary contained in these Rules or elsewhere; or", "(b) to any order of the court.", "...", "Rule 32.6", "(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.", "(2) At hearings other than the trial, a party may, rely on the matters set out in –", "(a) his statement of case; or", "(b) his application notice, if the statement of case or application notice is verified by a statement of truth.", "Rule 32.7", "(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence ... ”", "C. The Press Complaints Commission Code of Conduct", "34. The Press Complaints Commission has adopted a code of conduct which is regularly reviewed and amended as required. The 2003 Code of Conduct reads, insofar as relevant, as follows:", "“ 1. Accuracy", "Newspapers and periodicals must take care not to publish inaccurate, misleading or distorted material including pictures.", "Whenever it is recognised that a significant inaccuracy, misleading statement or distorted report has been published, it must be corrected promptly and with due prominence.", "An apology must be published whenever appropriate.", "Newspapers, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.", "A newspaper or periodical must report fairly and accurately the outcome of an action for defamation to which it has been a party.", "...", "15. Confidential sources", "Journalists have a moral obligation to protect confidential sources of information. ”", "35. There have been no significant changes to the above provisions since 2003.", "III. RELEVANT COUNCIL OF EUROPE MATERIAL", "36. On 8 March 2000, the Committee of Ministers of the Council of Europe adopted a Recommendation (No. R (200 0 ) 7) on the right of journalists not to disclose their sources of information. The Recommendation provides, at Principle 3, as follows :", "“ a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.", "b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "37. The applicants complained that the decision of the High Court on 19 December 2001 to order them to disclose the leaked document to Interbrew violated their right to freedom of expression as provided in Article 10 of the Convention, which reads, insofar as relevant, as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ... ”", "38. The applicants also alleged that the inequality of arms during the Norwich Pharmacal proceedings constituted a breach of the procedural aspect of their right to freedom of expression.", "Admissibility", "1. The Government's preliminary objection", "39. The Government submitted that the applicants'complaint regarding the lack of procedural guarantees in the Norwich Pharmacal proceedings was inadmissible due to the applicants'failure to exhaust domestic remedies within the meaning of Article 35 § 1. In the view of the Government, the applicants did not take advantage of procedural protection available to them under domestic law. The Government argued that it was open to the domestic court to make a range of orders against Interbrew for disclosure of documents, cross-examination and production of information but this would generally only be done on the application of either party. In the present case, there was no evidence that the applicants had made any formal applications of this nature. The Government further relied upon the fact that the applicants did not request a full trial of Interbrew's claim for delivery up of the leaked document. The Government concluded that the applicants did not argue before the domestic courts that the procedure adopted was unfair but instead chose to argue that Interbrew could not prove its case. Accordingly, the applicants had not raised the substance of their complaint in the domestic proceedings.", "2. The applicants'response", "40. The applicants disputed the Government's assessment of the domestic proceedings. They highlighted the urgent nature of the proceedings and contended that the Government's submissions did not reflect the haste with which the applicants were required to defend Interbrew's application.", "41. The applicants emphasised that they had argued before the domestic courts that no findings of fact should be made on the basis of one-sided evidence in an interim application. They contested the Government's suggestion that they did not ask the judge to order a full trial of Interbrew's claim, although they accepted that a formal application was probably not made and contended that this was because the judge had made it clear that he would not grant such an order. The applicants also accepted that no formal application was made for further information, but argued that an oral application in the course of argument sufficed when time was short. They explained that they had orally requested further details of Interbrew's investigations but that the judge ruled this to be unnecessary on the basis that it might prejudice ongoing enquiries. As to their failure to seek permission to cross-examine witnesses, the applicants pointed out that the relevant witness statements were lodged either late on 16 December 2001 or early on 17 December 2001, in the closing stages of the urgent application, and in any event recounted only hearsay evidence rather than dealing with the underlying facts of the leak and the investigation. Evidence, in the form of a letter from Kroll, concerning the progress of the investigation was merely appended to the witness statement of Interbrew's solicitors which meant that the applicants were not able, under the CPR, to directly cross ‑ examine the Kroll witness himself. They therefore contended that they had aired the substance of their procedural complaint in the domestic proceedings.", "3. The Court's assessment", "42. The Court reiterates that in assessing whether domestic remedies have been exhausted, account should be taken not only of the formal remedies available in the legal system concerned but also of the particular circumstances of the case in question (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV ). There should be a degree of flexibility in the application of the rule and it is not necessary to demonstrate that the arguments were advanced in exactly the same terms before domestic courts as before this Court, provided that the substance of the complaint has been aired in domestic proceedings in accordance with any formal requirements (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 ‑ I ).", "43. The Court notes that until 10 December 2001, when an injunction was granted against them without notice, the applicants were completely unaware that Interbrew was planning to take legal action to compel them to deliver up the leaked document. The applicants thereafter found themselves in the position of having to resist, at very short notice, an interim application for delivery up of documents within 24 hours, where the application by its nature would be determinative of the whole case. The Court observes that the timetable for the proceedings before the High Court was tight and that the deadline for lodging written arguments before the Court of Appeal was short.", "44. The Court considers that the applicants argued in substance before both the High Court and the Court of Appeal that the court should not make findings of fact in summary proceedings and that their ability to contest the delivery up order was hindered by the fact that they were required to take it on trust that the leaked document had been falsified by X and that adequate efforts had been made to investigate the leak but had proved unsuccessful. In these circumstances the Court finds that, having regard to the haste with which the proceedings took place, the applicants have satisfied the requirements of Article 35 § 1.", "45. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be declared admissible.", "B. Merits", "1. The parties'observations", "a. The applicants", "46. The applicants argued that as a consequence of the order of the domestic court, their journalistic sources might be identified. They contended that this violated their right to freedom of expression. The applicants alleged in particular that (i) the “interests of justice ” test in section 10 of the 1981 Act did not construe sufficiently narrowly the exceptions permitted by Article 10 § 2; (ii) it was wrong in principle to make an order for delivery up of documents which had the certain effect of interfering with freedom of expression when, as in this case, the seriousness of the harm done to, and the wrong suffered by, the claimant could not be determined; (iii) it was wrong in principle to make an order for delivery up of documents where the pursuit of evidence by other means had not been exhausted and/or evidence as to the adequacy of investigations was not satisfactory; and (iv) the domestic courts were wrong to treat the purposes of X as being relevant and justiciable.", "47. The applicants pointed to the chilling effect that disclosure of journalistic sources had on the freedom of expression of the press in a democracy. In this regard, there was no difference between an order for disclosure of a source's identity and an order for disclosure of documents which might identify a source. The applicants argued that the courts had failed to properly balance Interbrew's interest in finding X against the vital public interest in protecting the applicants'journalistic source. They concluded that in the present case, the order for delivery up was not “necessary in a democratic society”.", "48. The applicants also contended that the procedure employed for requiring them to deliver up the leaked documents contained insufficient procedural safeguards to constitute a fair hearing. In particular, the applicants alleged that they did not enjoy equality of arms in the legal proceedings because the court made important findings of fact upon which it later relied in carrying out the balancing test required under Article 10 § 2 without evidence being properly tested in court. The applicants refer in particular to the following: (i) the High Court accepted the assertion by Interbrew that the leaked document had been falsified, an assertion which the applicants were not able to challenge because they did not have access to all of Interbrew's documentation; (ii) the courts took Interbrew's claim that it had conducted an adequate investigation into the leak and that the investigation had proved insufficient at face value, again in circumstances in which the applicants were unable to challenge the assertion or cross-examine relevant witnesses; and (iii) the courts found X's purpose to have been harmful without full evidence being heard.", "49. The applicants pointed to the fact that all of the evidence adduced by Interbrew was in the form of witness statements – four by Interbrew's solicitors and one by Interbrew's Executive Vice-President and Advisor to the Chairman – containing second-hand or third-hand hearsay evidence. The statements referred to information or belief, rather than knowledge. The applicants alleged that inconsistencies and omissions in the witness statements could not be properly explored in court. The applicants concluded that the absence of procedural safeguards meant that the court did not determine the necessity and proportionality of the disclosure order in a properly adversarial procedure.", "50. The applicants finally highlighted that failure to comply with the delivery up order could lead to penal sanctions being imposed upon them for contempt of court. They argued that in the circumstances, a greater level of equality of arms than would be required in ordinary civil proceedings ought to apply.", "b. The Government", "51. The Government contested the applicants'submissions, observing that Article 10 did not require the protection of journalistic sources in all circumstances but allowed for that protection to be circumscribed where the conditions set out in Article 10 § 2 were met.", "52. The Government argued that section 10 of the 1981 Act, as applied in the applicants'case, was compatible with Article 10 of the Convention. They further argued that the domestic courts were entitled to make the findings they did on the basis of the evidence and to take those findings into account in making the delivery up order. As to the harm suffered by Interbrew, the Government pointed to the drop in its share price and the rise in SAB's share price. The Government also considered that the court was justified in reaching its conclusion as to X's purpose given, inter alia, the anonymity, the lack of any attempt by X to justify the leak and the absence of any evidence to contradict Interbrew's assertion that the leaked documents had been manipulated. Finally, the Government argued that the applicants'contention regarding the adequacy of Interbrew's investigation into the leak was an attempt to appeal against the Court of Appeal's judgment, which had rationally concluded that as much as possible had been done to track down the source of the leak.", "53. The Government pointed out that the order did not require the applicants to identify X directly. They highlighted the public interest in finding the perpetrator of what might have been serious criminal conduct and the risk of future harm to Interbrew. They concluded that the order was both necessary and proportionate and that the Court should respect the domestic court's margin of appreciation in this regard.", "54. The Government accepted that the applicants were entitled to enjoy equality of arms in Norwich Pharmacal proceedings. However, they argued that contracting States have greater latitude in civil cases and that in such cases, it is important to assess the overall fairness of the proceedings. The Government contended that the proceedings were fair given that, inter alia, the questions as to whether the domestic courts were justified in concluding that X's purpose was to harm Interbrew and whether the leaked document contained untrue material were immaterial to whether the applicants had a fair trial; and the applicants were not being asked to name X.", "55. The Government further argued that the applicants had available to them further procedural remedies which they chose not to use. In the circumstances, the Government concluded that the applicants had received a fair trial.", "2. The Court's assessment", "56. The Court notes that the disclosure order of 19 December 2001 has not been enforced against the applicants. In the Court's view, this does not remove the harm in the present case since, however unlikely such a course of action currently appears, the order remains capable of being enforced (see Steel and Morris v. the United Kingdom, no. 68416/01, § 97, ECHR 2005 ‑ II ). The Government do not argue to the contrary. It follows that the order of 19 December 2001 constituted an interference with the applicants'right to freedom of expression. It is therefore necessary to examine whether the interference was justified under Article 10 § 2.", "a. “Prescribed by law”", "57. The Court observes that the order was authorised by the common law principle in Norwich Pharmacal and by the operation of section 10 of the 1981 Act, as interpreted in subsequent case-law. The interference was therefore “prescribed by law” within the meaning of Article 10 § 2 (see Goodwin v. the United Kingdom, 27 March 1996, § 31-33, Reports of Judgments and Decisions 1996 ‑ II ). This was not contested by the parties.", "b. Legitimate aim", "58. The purpose of the interference was variously suggested to be to protect the rights of others, to prevent the disclosure of information received in confidence and to prevent crime. The Court observes that investigation and prosecution of crime are generally matters conducted by the State. In the present case, the Norwich Pharmacal proceedings were brought by a private party. The Court further observes that in his judgment Sedley LJ emphasised that Interbrew's prima facie entitlement to delivery up of the documents had been established solely because it might enable them to ascertain the identity of the proper defendant to a breach of confidence action, thereby preventing future leaks of its confidential information, and to take action against X to recover damages for losses already sustained (see paragraph 27 above). In the circumstances, the Court considers that the interference in this case was intended to protect the rights of others and to prevent the disclosure of information received in confidence, both of which are legitimate aims.", "c. “Necessary in a democratic society”", "i. General principles", "59. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. Furthermore, protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital “public watchdog” role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest (see Goodwin, cited above, § 39).", "60. The Court recalls that as a matter of general principle, the “necessity” of any restriction on freedom of expression must be convincingly established. It is for the national authorities to assess in the first place whether there is a “ pressing social need ” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. This interest will weigh heavily in the balance in determining whether the restriction was proportionate to the legitimate aim pursued. The Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court ( Goodwin, cited above, § 40).", "61. The Court's task, in exercising its supervisory function, is not to take the place of the national authorities but rather to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within their margin of appreciation. The Court must therefore look at the interference and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” ( Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24 and Goodwin, cited above, § 40 ).", "62. The Court reiterates that under the terms of Article 10 § 2, the exercise of freedom of expression carries with it duties and responsibilities which also apply to the press. Article 10 protects a journalist's right – and duty – to impart information on matters of public interest provided that he is acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism ( Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ).", "63. In the case of disclosure orders, the Court notes that they have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves (see, mutatis mutandis, Voskuil v. the Netherlands, no. 64752/01, § 71, 22 November 2007 ). While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2.", "ii. Application of the principles to the present case", "64. The Court recalls that, in the Goodwin case, it was concerned with the grant of an order for the production of the applicant journalist's notes of a telephone conversation identifying the source of the disclosure of information in a secret draft corporate plan of the claimant company which had disappeared, as well as of any copies of the plan in his or his employer's possession. The order had been made by the domestic courts primarily on the grounds of the threat of severe damage to the company's business, and consequently to the livelihood of its employees, which would arise from disclosure of the information in their corporate plan while refinancing negotiations were continuing. The Court noted that a vital component of the threat of damage to the company had already been neutralised by an injunction to prevent dissemination of the confidential information by the press. While accepting that the disclosure order served the further purpose of bringing proceedings against the source to recover possession of the missing document and to prevent further dissemination of the contents of the plan, as well as of unmasking a disloyal employee or collaborator, the Court observed that, in order to establish the necessity of disclosure for the purposes of Article 10, it was not sufficient for a party seeking disclosure to show merely that it would be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which it based its claim. The considerations to be taken into account by the Convention institutions in their review under Article 10 tipped the balance in favour of the interest of a democratic society in securing a free press. On the facts of that case, the Court stated (at § 45) that it could not find that the company's interests", "“ ...... in eliminating, by proceedings against the source, the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, sufficient to outweigh the vital public interest in the protection of the applicant journalist's source”.", "65. In the Court of Appeal in the present case, Sedley LJ found that the “relatively modest leak” of which Interbrew was entitled to complain did not diminish the seriousness for Interbrew of its repetition. He concluded that the public interest in protecting the source of such a leak was not sufficient to withstand the countervailing public interest in allowing Interbrew to seek justice against the source (see paragraph 27 above). What was said to matter critically in arriving at this conclusion was the evident purpose of X, which was “on any view a maleficent one, calculated to do harm whether for profit or for spite ... ”.", "66. The Court notes that in Goodwin, it did not consider allegations as to the source's “improper motives” to be relevant to its finding that there was a violation of Article 10 in that case, notwithstanding the High Court's conclusion that the source's purpose, in the Goodwin case, in disclosing the leaked information was to “secure the damaging publication of information which he must have known to be sensitive and confidential” (see Goodwin, §§ 15 and 38, where it was argued by the Government that the source had acted mala fide and should therefore not benefit from protection under journalists'privilege of non-disclosure of sources). While the Court considers that there may be circumstances in which the source's harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order, the legal proceedings against the applicants did not allow X's purpose to be ascertained with the necessary degree of certainty. The Court would therefore not place significant weight on X's alleged purpose in the present case.", "67. As regards the allegations that the leaked document had been doctored, the Court recalls the duties and responsibilities of journalists to contribute to public debate with accurate and reliable reporting. In assessing whether a disclosure order is justified in cases where the leaked information and subsequent publication are inaccurate, the steps taken by journalists to verify the accuracy of the information may be one of the factors taken into consideration by the courts, although the special nature of the principle of protection of sources means that such steps can never be decisive but must be considered in the context of the case as a whole (see paragraph 6 3, above). In any event, the domestic courts reached no conclusion as to whether the leaked document was doctored, the Court of Appeal observing that it had no way of knowing, any more than the applicants, whether X, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards. The Court likewise considers that it has not been established with the necessary degree of certainty that the leaked document was not authentic. The authenticity of the leaked document cannot therefore be seen as an important factor in the present case.", "68. It remains to be examined whether, in the particular circumstances of the present case, the interests of Interbrew in identifying and bringing proceedings against X with a view to preventing further dissemination of confidential information and to recovering damages for any loss already sustained are sufficient to override the public interest in the protection of journalistic sources.", "69. In this respect, the Court observes at the outset that where an unauthorised leak has occurred, a general risk of future unauthorised leaks will be present in all cases where the leak remains undetected (see Goodwin, §§ 17-18 and 41). In the present case, the Court notes that Interbrew received notice, prior to publication of the initial FT article, that a copy of the leaked document had been obtained and that there was an intention to publish the information it contained. In contrast to the stance taken by the company in the Goodwin case, Interbrew did not seek an injunction to prevent publication of the allegedly confidential and sensitive commercial information. Moreover, the aim of preventing further leaks will only justify an order for disclosure of a source in exceptional circumstances where no reasonable and less invasive alternative means of averting the risk posed are available and where the risk threatened is sufficiently serious and defined to render such an order necessary within the meaning of Article 10 § 2. It is true that in the present case the Court of Appeal found that there were no less invasive alternative means of discovering the source, since Kroll, the security and risk consultants instructed by Interbrew to assist in identifying X, had failed to do so. However, as is apparent from the judgments of the domestic courts, full details of the inquiries made were not given in Interbrew's evidence and the Court of Appeal's conclusion that as much as could at that time be done to trace the source had been done by Kroll was based on inferences from the evidence before the court.", "70. While, unlike the applicant in the Goodwin case, the applicants in the present case were not required to disclose documents which would directly result in the identification of the source but only to disclose documents which might, upon examination, lead to such identification, the Court does not consider this distinction to be crucial. In this regard, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources. In the present case, it was sufficient that information or assistance was required under the disclosure order for the purpose of identifying X (see Roemen and Schmit v. Luxembourg, no. 51772/99, § 47, ECHR 2003 ‑ IV).", "71. The Court, accordingly, finds that, as in the Goodwin case, Interbrew's interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists'sources.", "72. As to the applicants'complaint that there was an inequality of arms during the Norwich Pharmacal proceedings which constituted a breach of the procedural aspect of their right to freedom of expression, the Court considers that, having regard to its above findings, it is not necessary to examine this complaint separately.", "73. In conclusion, the Court finds that there has been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "74. The applicants further complained of the fact that there was, in their view, an inequality of arms during the legal proceedings. They relied on Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "75. The Court observes that these complaints raise the same issues and relate to the same facts as those examined in the context of the applicants'complaints under Article 10. The complaint should therefore be declared admissible. However, the Court concludes that there is no need to examine separately the complaints under Article 6 § 1 having regard to its conclusion under Article 10.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "76. The applicants complained of a violation of their right to respect for their home and correspondence as a result of the court order requiring them to deliver up the leaked documents to Interbrew. They relied on Article 8 of the Convention, which provides, insofar as relevant, as follows:", "“1. Everyone has the right to respect for his ... home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”", "77. The applicants also alleged that the inequality of arms during the Norwich Pharmacal proceedings constituted a breach of the procedural limb of their right to respect for their home and correspondence.", "78. The Court observes that these complaints raise the same issues and relate to the same facts as those examined in the context of the applicants'complaints under Article 10. The complaint should therefore be declared admissible. However, the Court concludes that there is no need to examine separately the complaints under Article 8 having regard to its conclusion under Article 10.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "79. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Costs and expenses", "1. The applicants'claims", "80. The applicants claimed reimbursement of costs and expenses incurred in the proceedings before the domestic courts and before this Court, together with sums paid to defray the costs of Interbrew in the same proceedings. The applicants calculated the total value of their claim to be GBP 766,912.62, composed as follows.", "a. The Financial Times", "81. The FT claimed a total of GBP 141,853.12 in costs and expenses. This sum included:", "(a) GBP 72,855 in respect of professional fees;", "(b) GBP 42,211.88 in respect of counsel's fees;", "(c) GBP 2,966.01 in respect of disbursements;", "(d) GBP 2,943.38 for work by Clifford Chance in connection with the proceedings before the Court; and", "(e) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew.", "82. The above sums were inclusive of VAT.", "b. The Independent", "83. The Independent claimed a total of GBP 105,120.73 in costs and expenses. This sum included:", "(a) GBP 81,738.88 in respect of professional and counsel's fees and disbursements;", "(b) GBP 2,505 for work by Clifford Chance in connection with the proceedings before the Court; and", "(c) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew.", "84. The above sums were exclusive of VAT, with the exception of the sums paid to Interbrew which were inclusive of any VAT applicable.", "c. The Guardian", "85. The Guardian claimed a total of GBP 194,820 in costs and expenses. This sum included:", "(a) GBP 151,837.68 in respect of professional fees;", "(b) GBP 17,425 in respect of counsel's fees;", "(c) GBP 2,175.47 in respect of disbursements;", "(d) GBP 2,505 for work by Clifford Chance in connection with the proceedings before the Court; and", "(e) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew.", "86. The above sums were exclusive of VAT, with the exception of the sums paid to Interbrew which were inclusive of any VAT applicable.", "d. The Times", "87. The Times claimed a total of GBP 58,349.02 in costs and expenses. This sum included:", "(a) GBP 20,075.01 in respect of counsel's fees in the domestic proceedings;", "(b) GBP 400 in respect of disbursements;", "(c) GBP 16,997.16 for work by solicitors and counsel in connection with the proceedings before the Court; and", "(d) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew.", "88. The above sums were exclusive of VAT, with the exception of the sums paid to Interbrew which were inclusive of any VAT applicable.", "e. Reuters", "89. Reuters claimed a total of GBP 266,769.75 in costs and expenses. This sum included:", "(a) GBP 128,878.76 in respect of professional and counsel's fees in the domestic proceedings;", "(b) GBP 44,277.68 for work by solicitors and counsel in connection with the proceedings before the Court;", "(c) GBP 72,736.46 in respect of costs incurred in connection with the investigation by the Financial Services Authority; and", "(d) GBP 20,876.85 in respect of costs ordered to be paid to Interbrew.", "90. With the exception of the sums paid to Interbrew, which were inclusive of any VAT applicable, it is not clear whether the above sums were exclusive or inclusive of VAT.", "2. The Government's submissions", "91. The Government considered the sums claimed to be excessive. They pointed to the large and unexplained discrepancies between the sums claimed by each of the five applicants. They further submitted that the work carried out by numerous lawyers on behalf of the applicants resulted in unnecessary duplication.", "92. The Government also pointed to the inclusion in the applicants'claim of sums incurred in respect of a separate investigation by the Financial Services Authority (“FSA”). They highlighted that the FSA was concerned, in pursuance of its regulatory functions, with the determination of whether an offence had been committed under the Financial Services Act 1986. This was a separate matter from the legal proceedings which formed the basis of the applicants'claim before this Court. Such expenditure was therefore, in the Government's view, irrecoverable. The Government highlighted the failure of the applicants, with the exception of Reuters, to specify how much of their costs and expenses were incurred as a result of the FSA investigation. On the basis that 27 per cent of the sum claimed by Reuters related to the FSA investigation, the Government invited the Court to make a corresponding reduction to the sums claimed by the other applicants, with the possible exception of The Times.", "93. The Government also complained that the applicants had failed to provide adequate details of the breakdown of work carried out and had further failed to explain invoices which related to periods long after domestic proceedings had finished. It was apparent that some items included in the invoices submitted were in respect of work which was unrelated to the legal proceedings. The Government therefore invited the Court to make a further reduction to the sums claimed.", "94. Finally, the Government disputed the level of costs claimed for the application to this Court. They pointed out that the two applicants which had separately listed all costs incurred in the present application had incurred GBP 64,787.32 between them, which the Government considered to be excessive.", "3. The Court's assessment", "95. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005 ‑ X ).", "96. In the present case, the Court considers that the sums claimed by the applicants are unreasonably high and that a significant reduction is accordingly required. First, the Court agrees with the Government that sums related to the FSA investigation are not recoverable in the present proceedings. Second, in respect of the number of hours billed and the general rates charged by solicitors and counsel in the applicants'case, the Court finds these to be excessive. In Reuters'case, for example, the Court notes that a significant amount of work was charged at GBP 475 per hour. The Court further observes that there are significant and unexplained discrepancies between the sums claimed by each of the five applicants. Finally, the Court considers that there has been unreasonable duplication of work in the instruction of numerous solicitors, both domestically and in the proceedings before the Court. However, the Court also observes that the sums claimed by the applicants include a total of GBP 104,384.25 paid in respect of Interbrew's costs in the domestic legal proceedings.", "97. Regard being had to the information in its possession, the Court therefore considers it reasonable to award to the applicants the sum of EUR 1 60 ,000 in total, inclusive of any tax that may be chargeable to the applicants, covering costs under all heads.", "B. Default interest", "98. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Factual background", "1. The applicant company", "9. The applicant company is based in Hoofddorp. Its business is publishing and marketing magazines, including the weekly Autoweek, which caters for readers who are interested in motoring.", "2. The street race", "10. On 12 January 2002, an illegal street race was held in an industrial area on the outskirts of the town of Hoorn. Journalists of Autoweek attended this race at the invitation of its organisers.", "11. The applicant company state that the journalists were given the opportunity to take photographs of the street race and of the participating cars and persons on condition that they guarantee that the identities of all participants would remain undisclosed. The Government, for their part, dispute the existence of any agreement involving more than a small number of organisers or participants at most.", "12. The street race was ended by the police, who were present and eventually intervened. No arrests were made.", "13. The applicant company intended to publish an article about illegal car races in Autoweek no. 7/2002 of 6 February 2002. This article would be accompanied by photographs of the street race held on 12 January 2002. These photographs would be edited in such a manner that the participating cars and persons were unidentifiable, thus guaranteeing the anonymity of the participants in the race. The original photographs were stored by the applicant company on a CD-ROM, which was kept in the editorial office of a different magazine published by the applicant company (not Autoweek ).", "14. The police and prosecuting authorities were afterwards led to suspect that one of the vehicles participating in the street race had been used as a getaway car following a ram raid on 1 February 2001 (see paragraphs 2 7 -2 9 below).", "B. The summons to surrender the CD-ROM, the seizure of the CD-ROM and ensuing proceedings", "1. The summons to surrender the CD-ROM and the seizure of the CD-ROM", "15. On the morning of Friday 1 February 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of 12 January 2002. This police officer was informed by the staff member whom she had called, namely the features chief editor ( chef reportage ), that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race. The features chief editor further told this police officer that he thought that the press was reasonably protected against this kind of action and advised her to contact the editorial office in writing.", "16. In the afternoon of 1 February 2002, at 2.30 p.m., two police detectives visited the Autoweek editorial office and, after having unsuccessfully tried to obtain the surrender of the photographs, issued Autoweek ’ s editor-in-chief with a summons, within the meaning of Article 96a of the Code of Criminal Procedure ( Wetboek van Strafvordering ). This summons had been issued by the Amsterdam public prosecutor; it ordered the applicant company to surrender, in the context of a criminal investigation into offences defined in Articles 310-312 of the Criminal Code ( Wetboek van Strafrecht ) against an unspecified person, the photographs taken on 12 January 2002 during the illegal street race in Hoorn and all related materials. On behalf of the applicant company, Autoweek ’ s editor-in-chief Mr Broekhuijsen refused to surrender the photographs, considering this to be contrary to the undertaking given by the journalists to the street race participants as regards their anonymity.", "17. Later that day, a telephone conversation took place between, on the one side, two public prosecutors and, on the other, the lawyer of the applicant company Mr Jansen. Mr Jansen was told by the public prosecutors that “it concerned a matter of life and death”. No further explanation was given and Mr Jansen ’ s request for written confirmation that the matter was one of “life and death” was not entertained.", "18. The police detectives and the public prosecutors threatened to detain Mr Broekhuijsen during the weekend of 2 to 3 February or even longer for having acted in violation of Article 184 of the Criminal Code, i.e. the offence of failure to comply with an official order ( ambtelijk bevel ), and to seal and search the whole of the applicant company ’ s premises, if need be for the entire weekend period and beyond, and remove all computers. The threatened search would entail financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince, due to take place on 2 February 2002.", "19. At 6.01 p.m. on 1 February 2002, Mr Broekhuijsen was arrested on suspicion of having violated Article 184 of the Criminal Code. He was not taken to the police station but remained on the applicant company ’ s premises. After the Amsterdam public prosecutor had arrived on these premises and after he had been brought before the prosecutor, Mr Broekhuijsen was released at 10 p.m.", "20. The applicant company then consulted their counsel, Mr S., and a second lawyer, Mr D., the latter being a specialist in criminal procedure. At some point the CD-ROM was transferred to the lawyers ’ offices unbeknown to the public prosecutor and the police investigators. Upon this, the public prosecutor and the other persons involved went to the lawyers ’ offices.", "21. Mr D. spoke with the public prosecutors involved for some two hours, from 11.15 p.m. onwards. Taking the view that judicial authorisation was required, he sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge ( rechter-commissaris ) of the Amsterdam Regional Court ( rechtbank ), who was then contacted by telephone. After having spoken with Mr D., and after having been briefed by one of the public prosecutors, the investigating judge expressed the view that the needs of the criminal investigation outweighed the applicant company ’ s journalistic privilege. While recognising from the outset that by law he lacked competence in the matter, he also stated that, had he had the power to do so, he would have been prepared to give an order to that effect and even to sanction a search of the offices.", "22. On 2 February 2002 at 1.20 a.m., the applicant company, through Mr S. and Mr D. and under protest, surrendered the CD-ROM containing the photographs to the public prosecutor, who formally seized it. An official receipt issued by a police officer describes it as a CD-ROM in purpose-made packaging, the packaging labelled in handwriting “Photos Illegal Street Races, ANWB [Royal Netherlands Tourist Association] driving simulator, sidecar motorcycle with coffin”. The receipt stated that Mr S. had handed over the CD-ROM under protest.", "2. Proceedings in the Regional Court", "23. On 15 April 2002 the applicant company lodged a complaint under Article 552a of the Code of Criminal Procedure, seeking the lifting of the seizure and restitution of the CD ‑ ROM, an order to the police and prosecution department to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution department from taking cognisance or making use of information obtained through the CD-ROM.", "24. On 5 September 2002 a hearing was held before the Regional Court during which the public prosecutor explained why the surrender of the photographs had been found necessary. The summons complained of had been issued in the context of a criminal investigation concerning serious criminals who had pulled cash dispensers out of walls with the aid of a shovel loader, and there was reason to believe that a car used by participants in the street race could lead to the perpetrator(s) of those robberies.", "25. In its decision of 19 September 2002 the Regional Court granted the request to lift the seizure and to return the CD-ROM to the applicant company as the interests of the investigation did not oppose this. It rejected the remainder of the applicant company ’ s complaint. It found the seizure lawful and, on this point, considered that a publisher/journalist could not, as such, be regarded as enjoying the privilege of non-disclosure ( verschoningsrecht ) under Article 96a of the Code of Criminal Procedure. Statutorily, the persons referred to in Article 218 of the Code of Criminal Procedure and acknowledged as enjoying the privilege of non-disclosure were, amongst others, public notaries, lawyers and doctors. It considered that the right to freedom of expression, as guaranteed by Article 10 of the Convention, included the right freely to gather news ( recht van vrije nieuwsgaring ) which, consequently, deserved protection unless outweighed by another interest warranting priority. It found that, in the instant case, the criminal investigation interest outweighed the right to free gathering of news in that, as explained by the public prosecutor during the hearing, the investigation at issue did not concern the illegal street race, in which context the undertaking of protection of sources had been given, but an investigation into other serious offences. The Regional Court was therefore of the opinion that the case at hand concerned a situation in which the protection of journalistic sources should yield to general investigation interests, the more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race. It found established that the data stored on the CD-ROM had been used for the investigation of serious offences and that it had been made clear by the prosecutor that these data were relevant to the investigation at issue as all other investigation avenues had led to nothing. It therefore concluded that the principles of proportionality and subsidiarity had been complied with and that the interference had thus been justified. The Regional Court did not find that the seizure had been rash, although more tactful action on the part of the police and the public prosecutor might have prevented the apparent escalation of the matter.", "3. Proceedings in the Supreme Court", "26. The applicant company lodged an appeal on points of law with the Supreme Court ( Hoge Raad ), which on 3 June 2003 gave a decision declaring it inadmissible. The Supreme Court held that, as the Regional Court had accepted the applicant company ’ s complaint in so far as it related to the request to lift the seizure and to return the CD-ROM, the applicant company no longer had an interest in its appeal against the ruling of 19 September 2002. Referring to its earlier case-law (Supreme Court, 4 October 1988, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1989, no. 429, and Supreme Court, 9 January 1990, NJ 1990, no. 369), it held that this finding was not altered by the circumstance that the complaint – apart from a request to return the CD-ROM – also contained a request to order that any print-outs or copies of the CD-ROM were to be destroyed and that data collected with the aid of the CD-ROM could not be used : neither Article 552a nor any other provision of the Code of Criminal Procedure provided for the possibility of obtaining a declaratory ruling that the seizure or the use of the seized item was unlawful once the item had been returned.", "C. Factual information submitted to the Court by the Government", "27. The order issued under Article 96a of the Code of Criminal Procedure was closely related to a criminal investigation into a series of ram raids which had taken place on 20 September 2001, 6 November 2001 and 30 November 2001. In these ram raids, cash dispensers were removed from walls using a shovel loader. A group of suspects was identified, the main suspects being A and M.", "28. A telephone conversation involving M, tapped in the context of the investigation into those raids on 12 January 2002, revealed that M and A had participated in an illegal street race in Hoorn with an Audi RS4 motor car earlier that day.", "29. On 1 February 2002 another ram raid took place. During the incident, a bystander was threatened with a firearm. After ramming a wall, the perpetrators removed a cash dispenser and hauled it off in a lorry, which was followed closely by an Audi RS4. The police, who had already been informed of the incident, saw the lorry stop and the driver get into an Audi, which then drove away with three people inside. The police followed, but the Audi accelerated to over 200 kilometres per hour and disappeared from view.", "i. the name and personal data as well as voice and image of a source,", "ii. the factual circumstances of acquiring information from a source by a journalist,", "iii. the unpublished content of the information provided by a source to a journalist, and", "iv. personal data of journalists and their employers related to their professional work.", "Principle 1 (Right of non-disclosure of journalists)", "Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.", "Principle 2 (Right of non-disclosure of other persons)", "Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.", "Principle 3 (Limits to the right of non-disclosure)", "a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10 § 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10 § 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.", "b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:", "i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and", "ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:", "- an overriding requirement of the need for disclosure is proved,", "- the circumstances are of a sufficiently vital and serious nature,", "- the necessity of the disclosure is identified as responding to a pressing social need, and", "- member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.", "c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.", "Principle 4 (Alternative evidence to journalists ’ sources)", "In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.", "Principle 5 (Conditions concerning disclosures)", "a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.", "b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.", "c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.", "d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.", "e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.", "Principle 6 (Interception of communication, surveillance and judicial search and seizure)", "a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:", "i. interception orders or actions concerning communication or correspondence of journalists or their employers,", "ii. surveillance orders or actions concerning journalists, their contacts or their employers, or", "iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.", "b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.", "Principle 7 (Protection against self-incrimination)", "The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.”", "For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the term “sources” the following was set out:", "“c. Source", "17. Any person who provides information to a journalist shall be considered as his or her ‘ source ’. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the ‘ potentially chilling effect ’ an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being ‘ provided ’ when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.”", "F. Information submitted by the intervening third parties", "45. Media Legal Defence Initiative, Committee to Protect Journalists, Article 19, Guardian News & Media Ltd. and Open Society Justice Initiative, who were given leave by the President to intervene in the written procedure, submitted inter alia the following comparative-law information (footnote references omitted):", "“Echoing the Goodwin Court ’ s scrutiny of review procedures and the Committee of Ministers ’ recommendation that non-disclosure of sources be sanctionable only under ‘ judicial authorit[y] ’ (Rec. No. R(2000)7, Principle 5(c)), many national laws state that only courts may compel disclosure of information identifying confidential sources. The following can be taken as typical examples of legislation to this effect:", "- Law on Radio and Television Broadcasting, Art. 7 ( Romania ), July 11, 2002, Law No. 504 (revisions in force 3 December 2008) ( Legii audiovizualului ) (only law courts may compel disclosure of a journalist ’ s confidential sources);", "- Media Act ( Croatia ), Art. 30, 5 May 2004, Official Gazette No. 59/2004 ( Zakon o medijima ) (similar);", "- Code of Criminal Procedure, Art. 180 ( Poland ), 6 June 1997, Law No. 97.89.555 ( Kodeks Postepowania Karnego ) (right to keep sources confidential is a testimonial privilege);", "- Law of the Republic of Armenia on the Dissemination of Mass Information, Art. 5, 13 December 2003, ( ... ) (disclosure may be compelled only by a ‘ court decision, in the course of a criminal proceeding ’ of certain serious crimes);", "- Radio and Television Law, Section 15 ( Bulgaria ), 23 November 1998, Decree No. 406 (as amended June 2009) ( Закон за радиото и телевизията ) (allowing for disclosure only in ‘ pending court proceedings or a pending proceeding instituted on an appeal from an affected person ’ where court issues appropriate order).", "Courts have stressed the same. The Lithuanian constitutional court, investigating the compatibility of that country ’ s sources laws with the standards set by the European Court of Human Rights, has held that ‘ the legislator ... has a duty to establish, by law, also that in every case it is only the court that can decide whether the journalist must disclose the source of information. ’", "In Germany, search and seizure warrants may be issued only by a judge. Only when there is imminent risk may a prosecutor order such a search. The authorising judge or prosecutor must always consider the impact of the proposed action on press freedom; and whether a search or seizure has been ordered by a judge or by a prosecutor, ex post facto judicial review must always be available.", "In the United States, prior judicial review of efforts to compel information from journalists is a baseline requirement. In nearly all circumstances, law enforcement authorities must issue a subpoena to try to compel journalists to turn over information, which the journalists may then challenge in court before providing the information. In the very limited circumstances where police may proceed by search warrant (as stated above, these include probable cause to believe the possessor of the information ‘ has committed or is committing the criminal offense to which the materials relate ’, or that the search or seizure is ‘ necessary to prevent death or serious injury ’ ) a judge must issue the warrant.”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. The Code of Criminal Procedure", "1. Article 96a of the Code of Criminal Procedure", "30. Article 96a of the Code of Criminal Procedure reads as follows:", "“1. If it is suspected that a crime within the meaning of Article 67 § 1 has been committed, the investigating officer may order a person to surrender an object if it is reasonable to suspect that the person has an object subject to seizure in his possession.", "2. The order shall not be issued to the suspect.", "3. By virtue of their right to decline to give evidence, the following persons are not obliged to comply with an order of this nature:", "a. the persons described in Article 217;", "b. the persons described in Article 218, insofar as surrender for seizure would violate their duty of confidentiality;", "c. the persons referred to in Article 219, insofar as surrender for seizure would put them or their relatives at risk of prosecution for a criminal offence. ... ”", "31. Article 67 § 1 of the Code of Criminal Procedure lists the offences in respect of which detention on remand may be ordered. These include, among others, the offences defined in Articles 310-312 of the Criminal Code (theft, theft under aggravating circumstances, and robbery).", "32. A failure to comply with an order under Article 96a constitutes an offence as defined in, as relevant to the case, Article 184 (failure to comply with an official order) of the Criminal Code. This is an indictable offence ( misdrijf ) carrying a three-month maximum prison sentence or a fine.", "33. Persons who, by virtue of Articles 217-219 of the Code of Criminal Procedure, enjoy the privilege of non ‑ disclosure include", "a. an accused ’ s relatives, (former) spouse and (former) registered partner (Article 217);", "b. persons who, by virtue of their position, profession or office, are bound to secrecy – albeit that their privilege of non-disclosure only covers matters the knowledge of which has been entrusted to them in that capacity (Article 218; this category is traditionally considered to include doctors, advocates, clergy and notaries); and", "c. persons who, by giving evidence, expose themselves, their relatives to the second or third degree, their (former) spouse or their (former) registered partner to the risk of a criminal conviction (Article 219).", "34. Article 96a of the Code of Criminal Procedure entered into force on 1 February 2000. Prior to this date, only the investigating judge was competent to issue an order to surrender for the purposes of seizure (former Article 105 of the Code of Criminal Procedure).", "2. Article 552a of the Code of Criminal Procedure", "35. Article 552a of the Code of Criminal Procedure reads as follows:", "“1. Interested parties may lodge a written complaint about seizure, the use of seized objects, the failure to order the return, or the examination ( kennisneming ) or use of information recorded by means of an automatised device and recorded during a house search, and about the examination or use of information as referred to in Articles 100, 101, 114, 125i and 125j [i.e. letters and parcels sent by post, Articles 100, 101 and 114; electronic data, such as internet traffic, recorded by a third party, Articles 125i and 125j].", "2. The written complaint shall be lodged as soon as possible after the seizure of the object or the examination of the information at the registry of the trial court before which the case is being prosecuted or was last prosecuted. The written complaint shall not be admissible if it is lodged at a time when more than three months have passed since the case prosecuted has been brought to a close.", "...", "5. The hearing in chambers ( raadkamer ) to examine the written complaint shall be public.", "6. If the court considers the complaint to be well-founded, it shall give the appropriate order.”", "B. Domestic case-law", "36. Until 11 November 1977, the Netherlands Supreme Court did not recognise a journalistic privilege of non-disclosure. On that date, it handed down a judgment in which it found that a journalist, when asked as a witness to disclose his source, was obliged to do so unless it could be regarded as justified, in the particular circumstances of the case, that the interest of non-disclosure of a source outweighed the interest served by such disclosure. This principle was overturned by the Supreme Court in a landmark judgment of 10 May 1996 on the basis of the principles set out in the Court ’ s judgment of 27 March 1996 in the case of Goodwin v. the United Kingdom ( Reports of Judgments and Decisions 1996 ‑ II). In this ruling, the Supreme Court accepted that, pursuant to Article 10 of the Convention, a journalist was in principle entitled to non-disclosure of an information source unless, on the basis of arguments to be presented by the party seeking disclosure of a source, the judge was satisfied that such disclosure was necessary in a democratic society for one or more of the legitimate aims set out in Article 10 § 2 of the Convention ( Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 1996, no. 578).", "C. Official instructions", "37. Guidelines on the position of the press in relation to police action ( Leidraad over de positie van de pers bij politieoptreden ) were issued by the Minister of Justice ( Minister van Justitie ) on 19 May 1988. At the time of the events complained of, they provided, in relevant part:", "“7. Seizure of journalistic material", "Journalistic material may be seized in cases described in the Code of Criminal Procedure. Journalists may be faced with seizure in two ways.", "A. The police may, on the instructions of a public prosecutor ( officier van justitie ) or an assistant public prosecutor ( hulpofficier van justitie ) or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot.", "There must then be a direct connection between a particular criminal act and the journalistic material with which that act has been committed. In this situation, the journalist is arrested like any ordinary citizen.", "If a prosecution ensues, it will be for the independent judge eventually to decide what is to be done with any seized – and unpublished – material.", "B. Journalistic material may also be seized on the orders of an independent judge (the investigating judge), if such material may – in the judge ’ s opinion – serve to clarify the truth in a preliminary judicial investigation ( gerechtelijk vooronderzoek ).", "...”", "D. Developments in domestic law", "1. Developments predating the events", "38. On 4 December 2000, the boards of the Netherlands Society of Editors-in-Chief ( Nederlands Genootschap van Hoofdredacteuren ) and the Netherlands Union of Journalists ( Nederlandse Vereniging van Journalisten ) set up a commission to investigate and take stock of problems arising in relation to the protection of journalistic sources and seizure of journalistic materials. This commission – which was composed of a professor of criminal law, the secretary of the Netherlands Union of Journalists, a Regional Court judge and an editor of a national daily newspaper – concluded in its report of 30 October 2001, inter alia, that specific legislation was not necessary and that by way of making certain procedural changes – such as a preliminary assessment procedure, where it concerned the application of coercive measures in cases where the protection of sources was in issue – a number of problem areas could be resolved.", "39. Already in 1993, Mr E. Jurgens – at the time a member of the Netherlands Lower House of Parliament ( Tweede Kamer ) – had submitted a private member ’ s bill ( initiatiefwetsvoorstel ) to amend the Code of Criminal Procedure and the Code of Civil Procedure in order to secure the protection of journalistic sources and the protection of journalists as regards disclosing information held by them. On 2 March 2005, after remaining dormant, this bill was eventually withdrawn without having been taken up in parliament.", "2. Developments post-dating the events", "a. Official instructions", "40. On 15 January 2002, in the light of the case-law developments in this area and Recommendation No. R(2000) 7 adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 (see below), the Board of Procurators General ( College van procureurs-generaal ) adopted an Instruction within the meaning of Article 130 § 4 of the Judiciary (Organisation) Act ( Wet op de Rechterlijke Organisatie ) on the application by the Public Prosecution Department of coercive measure in respect of journalists ( Aanwijzing toepassing dwangmiddelen bij journalisten; published in the Official Gazette ( Staatscourant ) 2002, no. 46), which entered into force on 1 April 2002 for a period of four years. This Instruction defines who is to be considered as a “journalist” and sets out the pertinent principles and guidelines as regards the application of coercive measures, such as inter alia an order under Article 96a of the CCP, in respect of a journalist.", "b. Case-law development", "41. In a judgment given on 2 September 2005 concerning the search of premises of a publishing company on 3 May 1996 ( Landelijk Jurisprudentie Nummer [National Jurisprudence Number] LJN AS6926), the Supreme Court held inter alia :", "“The right of freedom of expression, as set out in Article 10 of the Convention, encompasses also the right to freely gather news (see, amongst others, Goodwin v. the United Kingdom, judgment of 27 March 1996, NJ 1996, no. 577; and Roemen and Schmit v. Luxembourg, judgment of 25 February 2003 [ECHR 2003 ‑ IV]). An interference with the right to freely gather news – including the interest of protection of a journalistic source – can be justified under Article 10 § 2 in so far as the conditions set out in that provision have been complied with. That means in the first place that the interference must have a basis in national law and that those national legal rules must have a certain precision. Secondly, the interference must serve one of the aims mentioned in Article 10 § 2. Thirdly, the interference must be necessary in a democratic society for attaining such an aim. In this, the principles of subsidiarity and proportionality play a role. In that framework it must be weighed whether the interference is necessary to serve the interest involved and therefore whether no other, less far-reaching ways ( minder bezwarende wegen ) can be followed along which this interest can be served to a sufficient degree. Where it concerns a criminal investigation, it must be considered whether the interference with the right to freely gather news is proportionate to the interest served in arriving at the truth. In that last consideration, the gravity of the offences under investigation will play a role.”", "3. Proposed legislation", "42. The Court ’ s judgment in the Voskuil case ( Voskuil v. the Netherlands, no. 64752/01, 22 November 2007) has prompted the Government to introduce new legislation. A bill now pending before Parliament proposes to add a new Article to the Code of Criminal Procedure (Article 218a) that would explicitly allow “witnesses to whom information has been entrusted within the framework of the professional dissemination of news ( beroepsmatige berichtgeving ) or the gathering of information for that purpose, or the dissemination of news within the framework of participation in the public debate, as the case may be” – that is, professional journalists in particular – to refuse to give evidence or identify sources of information. Such a right would be more limited than that enjoyed by the categories enumerated in Articles 217, 218 and 219 of the Code of Criminal Procedure; it would be subject to the finding of the investigating judge that no disproportionate harm to an overriding public interest ( zwaarderwegend maatschappelijk belang ) would result from such refusal. However, persons covered by the proposed new Article 218a would not be among those entitled to refuse outright to surrender items eligible for seizure: the bill proposes to include them in the enumeration contained in Article 96a § 3 (paragraph 30 above).", "E. Relevant international materials", "43. Several international instruments concern the protection of journalistic sources, among others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the Resolution on the Confidentiality of Journalists ’ Sources by the European Parliament (18 January 1994, Official Journal of the European Communities No. C 44/34).", "44. Recommendation No. R(2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 and states, in so far as relevant:", "“[The Committee of Ministers] Recommends to the governments of member States:", "1. to implement in their domestic law and practice the principles appended to this recommendation,", "2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and", "3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.", "Appendix to Recommendation No. R (2000) 7", "Principles concerning the right of journalists not to disclose their sources of information", "Definitions", "For the purposes of this Recommendation:", "a. the term ‘ journalist ’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;", "b. the term ‘ information ’ means any statement of fact, opinion or idea in the form of text, sound and/or picture;", "c. the term ‘ source ’ means any person who provides information to a journalist;", "d. the term ‘ information identifying a source ’ means, as far as this is likely to lead to the identification of a source:", "THE LAW", "I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER", "46. In their request for referral to the Grand Chamber and again in their written observations on the merits, in addition to restating their complaint under Article 10 of the Convention the applicant company alleged a violation of Article 13 in that there had been no effective prior judicial control and in that the Supreme Court, by dismissing the applicant company ’ s appeal on points of law as having become devoid of interest, had deprived an appeal on points of law of its effectiveness as a remedy. Article 13 of the Convention provides as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "The Government ’ s Agent, speaking at the hearing, asked the Court to dismiss the applicant company ’ s complaints under this Article as being outside the scope of the case.", "47. The Court reiterates that in the context of Article 43 § 3 the “case” referred to the Grand Chamber embraces those aspects of the application that have been declared admissible by the Chamber (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001 ‑ VII; and Šilih v. Slovenia [GC], no. 71463/01, § 120, 9 April 2009 ) and those only (see Kafkaris v. Cyprus [GC], no. 21906/04, § 124, ECHR 2008 ‑ ...; and Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 194, ECHR 2008 ‑ ... ).", "48. The complaints under Article 13 are new ones, made for the first time before the Grand Chamber. They are thus not included in the Chamber ’ s decision on admissibility. It follows that the Court cannot now consider them.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "49. The applicant company complained that they had been compelled to disclose information to the police that would have enabled their journalists ’ sources to have been revealed in violation of their right to receive and impart information, as guaranteed by Article 10 of the Convention. This provision provides as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "The Government denied that there had been any such violation.", "A. General considerations", "50. Freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds set, not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of \"public watchdog\" ( Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216 ) The right of journalists to protect their sources is part of the freedom to “receive and impart information and ideas without interference by public authorities” protected by Article 10 of the Convention and serves as one of its important safeguards. It is a cornerstone of freedom of the press, without which sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information to the public may be adversely affected.", "51. The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest ( Goodwin v. the United Kingdom, cited above, § 39; Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003 ‑ IV; Voskuil v. the Netherlands, cited above, § 65).", "B. Whether there has been an “interference” with a right guaranteed by Article 10", "1. The Chamber ’ s judgment", "52. The Chamber accepted that at the time when the CD-ROM was handed over the information stored on it had only been known to the applicant company and not yet to the public prosecutor and the police. It followed, in the Chamber ’ s assessment, that the applicant company ’ s rights under Article 10 as a purveyor of information had been made subject to an interference in the form of a “restriction” and that Article 10 was applicable (see the Chamber ’ s judgment, § 50).", "2. Arguments before the Court", "a. The Government", "53. The Government asked the Court not to accept as fact that the applicant company, or their journalists as the case might be, had actually promised to render the participants in the street race and their cars unrecognisable in any photographs to be published in order to secure their anonymity. Nothing was known of the persons with whom such an agreement had purportedly been reached and what exactly its content might have been. At all events, given the sheer number of persons participating, it seemed unlikely that an agreement of any description had been negotiated with every single one of them.", "54. The Government also pointed to the fact that the street race, though illegal, had taken place in full public view. That being so, and relying on British Broadcasting Corporation v. the United Kingdom, no. 25794/94, Commission decision of 18 January 1996, they argued that the applicant company could not possibly be under any duty of confidentiality or secrecy.", "55. Assuming there nonetheless to be a source deserving of protection, the Government argued in the alternative that the agreement of confidentiality, if agreement there were, could relate only to the street race. Pursuing that hypothesis, the Government accepted as plausible that the sources might have demanded confidentiality to avoid being prosecuted for taking part in the race. However, the order to surrender the photographs had been given in an entirely different context; it had never been the intention of the public prosecutor or the police to identify the sources themselves in connection with their participation in the illegal street race. Nor indeed had any prosecutions been brought related to the street race, not even against A and M.", "b. The applicant company", "56. The applicant company replied that they could not realistically have been required to produce a written agreement. Their journalists had stated that in order to be allowed to take pictures, they had had to promise the organisers of the street race – who were acting on behalf of all participants – in advance that the identity of participants would not be revealed in any way.", "57. The applicant company countered that the location of the street race was irrelevant. The police or other third parties would not have had unrestricted access to the events; moreover, the fact that the street race took place on the public highway did not alter the fact that the applicant company ’ s journalists had bound themselves not to disclose the identity of any participants. They dismissed as incorrect the distinction made in the Chamber ’ s judgment between the identification of journalistic sources and the compulsory handover of journalistic material capable of identifying sources.", "c. The intervening third parties", "58. The intervening third parties noted that there were photographs taken by the journalists of the illegal street race from which any or all of the participants could be identified once the photographs were in the hands of the authorities.", "3. The Court ’ s case-law", "59. In its earlier case-law the Court has found various acts of the authorities compelling journalists to give up their privilege and provide information on their sources or to obtain access to journalistic information to constitute interferences with journalistic freedom of expression. Thus, in Goodwin v. the United Kingdom, cited above, the Court held a disclosure order requiring a journalist to reveal the identity of a person who had provided him with information on an unattributable basis, and the fine imposed upon him for having refused to do so, to constitute an interference with the applicant ’ s right to freedom of expression as guaranteed by paragraph 1 of Article 10.", "60. In the British Broadcasting Corporation decision referred to by the Government (paragraph 5 4 above), the Commission distinguished the case of Goodwin v. the United Kingdom case on the grounds that Mr Goodwin had received information on a confidential and unattributable basis, whereas the information which the BBC had obtained comprised recordings of events that had taken place in public and to which no particular secrecy or duty of confidentiality could possibly attach”. The Court notes that nothwithstanding this finding the Commission “assume[d] an interference with the BBC ’ s Article 10 rights in the case”.", "61. In Roemen and Schmit v. Luxembourg, cited above, § 47; Ernst and Others v. Belgium, no. 33400/96, § 94, 15 July 2003; and again in Tillack v. Belgium, no. 20477/05, § 56, ECHR 2007 ‑ XIII, the Court found that searches of journalists ’ homes and workplaces seeking to identify civil servants who had provided the journalists with confidential information constituted interferences with their rights guaranteed by paragraph 1 of Article 10. In Roemen and Schmit, loc. cit., the Court also pointed out that the fact that the searches proved unproductive did not deprive them of their purpose, namely to establish the identity of the journalist ’ s source.", "62. In Voskuil v. the Netherlands, cited above, § 49, an interference with the applicant ’ s rights under Article 10 of the Convention was found in that a journalist ’ s refusal to name the person who had presented him with information on alleged wrongdoing by police officers in a criminal investigation led the domestic court to order his detention in an attempt to compel him to speak.", "63. Most recently, in Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 56, 15 December 2009, the Court found an order for the disclosure of the identity of an anonymous source of information addressed to four newspaper publishers and a news agency to constitute an interference with their rights under Article 10. Even though the order had not been enforced, that did not remove the harm to the applicant company since, however unlikely such a course of action might appear by the time the Court delivered its judgment, the order remained capable of being enforced.", "4. Application of the case-law principles to the facts of the case", "64. Turning to the present case, the Court is of the view that although the question has been the subject of much debate between the parties, it is not necessary to determine whether there actually existed an agreement binding the applicant company to confidentiality. The Court agrees with the applicant company that there is no need to require evidence of the existence of a confidentiality agreement beyond their claim that such an agreement existed. Like the Chamber, the Court sees no reason to disbelieve the applicant company ’ s claim that a promise had been made to protect the cars and their owners from being identified.", "65. As the Government correctly state, in the present case the authorities did not require the applicant company to disclose information for the purposes of the identification of the street race participants, but only to surrender photographs which in the applicant company ’ s submission might, upon examination, lead to their identification. However, in Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII the Court held that the decision of the Danish Supreme Court to compel the applicant company to hand over unedited footage constituted an interference within the meaning of Article 10 § 1 of the Convention despite the finding that the affected persons were not to be considered “anonymous sources of information” within the meaning of the case-law of the Court (paragraphs 5 9 and 6 1 above ). In its decision the Court accepted the possibility that Article 10 of the Convention might be applicable in such a situation and found that a compulsory handover of research material might have a chilling effect on the exercise of journalistic freedom of expression.", "66. The Court further notes that in the present case the order concerned was not intended to identify the sources themselves in connection with their participation in the illegal street race and that indeed, no prosecution had been brought in relation to this race or even against A. and M., who were suspected of having committed grave crimes. The Court, however, does not consider this distinction to be crucial.", "67. In earlier case-law the Court has considered the extent to which the acts of compulsion resulted in the actual disclosure or prosecution of journalistic sources irrelevant for the purposes of determining whether there has been an interference with the right of journalists to protect them. In the case of Roemen and Schmit, the information sought was not obtained as a result of the execution of the order for search and seizure in the journalist ’ s workplace. This order was considered “a more drastic measure than an order to divulge the source ’ s identity ... because investigators who raid a journalist ’ s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. It thus considers that the searches of the first applicant ’ s home and workplace undermined the protection of sources to an even greater extent than the measures in issue in Goodwin ” ( loc. cit., § 57).", "68. As previously observed, in the case of Financial Times Ltd and Others v. the United Kingdom, cited above, § 56, the fact that the disclosure order had not actually been enforced against the applicant company did not prevent the Court from finding that there had been an interference (see paragraph 6 3 above).", "69. The Court observes, as the Chamber did, that unlike in other comparable cases – Ernst and Others v. Belgium, cited above; Roemen and Schmit v. Luxembourg, cited above; Tillack v. Belgium, cited above – there was no search of the applicant company ’ s premises. However the public prosecutor and the police investigators clearly indicated their intention to carry out such a search unless the editors of Autoweek bowed to their will (see paragraph 1 8 above).", "70. This threat – accompanied as it was by the arrest, for a brief period, of a journalist – was plainly a credible one; the Court must take it as seriously as it would have taken the authorities ’ actions had the threat been carried out. Not only the offices of Autoweek magazine ’ s editors but those of other magazines published by the applicant company would have been exposed to a search which would have caused their offices to be closed down for a significant time; this might well have resulted in the magazines concerned being published correspondingly late, by which time news of current events (see paragraph 1 8 above) would have been stale. News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see, for example, Observer and Guardian v. the United Kingdom, 26 November 1991, § 60, Series A no. 216; Sunday Times v. the United Kingdom (no. 2), judgment of 26 November 1991, Series A no. 217, § 51; and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). This danger, it should be observed, is not limited to publications or periodicals that deal with issues of current affairs (cf. Alınak v. Turkey, no. 40287/98, § 37, 29 March 2005).", "71. While it is true that no search or seizure took place in the present case, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources ( mutatis mutandis, Financial Times Ltd and Others v. the United Kingdom, cited above, § 70).", "72. In sum, the Court considers that the present case concerns an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources. This suffices for the Court to find that this order constitutes, in itself, an interference with the applicant company ’ s freedom to receive and impart information under Article 10 § 1.", "C. Whether the interference was “prescribed by law”", "1. The Chamber ’ s judgment", "73. The Chamber was satisfied that a statutory basis for the interference complained of existed, namely Article 96a of the Code of Criminal Procedure. While recognising that that provision did not set out a requirement of prior judicial control, the Chamber gave decisive weight to the involvement of the investigating judge in the process. Although the Chamber found it unsatisfactory that prior judicial control by the investigating judge was no longer a statutory requirement, as it had been until Article 96a entered into force, it saw no need to examine the matter further (§§ 51-52 of the Chamber ’ s judgment).", "2. Arguments before the Court", "74. All agree that a statutory basis for the interference complained of existed in domestic law, namely Article 96a of the Code of Criminal Procedure.", "75. The applicant company contended that the law in force lacked foreseeability. Article 96a of the Code of Criminal Procedure gave the public prosecutor and the police an unfettered discretion to determine whether to order the surrender of information, without any limits as to the grounds on which to do so or the methods to be used. In particular, it was entirely silent on the subject of interferences with the journalistic privilege of source protection.", "76. Although admittedly Government or other official directives addressed to subordinate authorities might be taken into account in assessing foreseeability, in the present case such directives had not been available. An official instruction issued by the Board of Procurators General had entered into force only on 1 April 2002, that is two months after the events complained of.", "77. The absence of a statutory requirement of judicial control constituted, in the applicant company ’ s view, a separate violation of the requirement of legality. They pointed to Principle 3(a) of Recommendation No. R(2000) 7 of the Committee of Ministers of the Council of Europe (see paragraph 4 4 above), according to which “competent authorities” should assess the need for disclosure. They asked the Grand Chamber to clarify the duties of the State in this respect.", "78. They also took issue with the Chamber ’ s finding that the intervention of the investigating judge had been sufficient in the instant case to satisfy the requirements of Article 10. In general, the unregulated involvement of an investigating judge could not make up for the lack of a statutory guarantee.", "79. The Government argued that Article 96a of the Code of Criminal Procedure satisfied the requirements of foreseeability and accessibility. In defining the groups entitled to specific protection, the third paragraph of that Article referred to other Articles of that Code, namely Articles 217, 218 and 219, none of which mentioned journalists. Moreover, guidance as to the interpretation of that provision was to be found in its drafting history and in a policy rule accessible to the public.", "80. The intervening third parties in their observations (see paragraph 4 5 above) noted a tendency in countries in Europe and elsewhere towards the introduction of safeguards, by statute and case-law both. They cited examples of States that had made interferences with the protection of journalistic sources subject to prior judicial authorisation; in some of the jurisdictions named, though not all, the police could exceptionally proceed with a search in certain circumscribed cases of particular urgency. Some jurisdictions provided for review post factum, in certain cases even if source disclosure had been ordered ante factum by a judge.", "3. The Court ’ s assessment", "a. Applicable principles", "81. The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct.", "82. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see, among many other authorities, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, § 49; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 37, Series A no. 316 ‑ B; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000 ‑ XI; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004 ‑ I ).", "83. Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Articles 8 to 11 of the Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one; it has included both “written law”, encompassing enactments of lower ranking statutes and regulatory measures taken by professional regulatory bodies under independent rule-making powers delegated to them by Parliament, and unwritten law. “Law” must be understood to include both statutory law and judge-made “law”. In sum, the “law” is the provision in force as the competent courts have interpreted it ( Leyla Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005 ‑ XI, with further references).", "b. Application of these principles", "i. Basis in domestic law", "84. The Supreme Court ’ s judgment of 10 May 1996 (NJ 1996, no. 578) recognised in principle a journalistic privilege of source protection in terms derived from the Court ’ s Goodwin v. the United Kingdom judgment, delivered shortly before.", "85. At the time of the events complained of, the official instruction issued by the Minister of Justice on 19 May 1988 (paragraph 3 7 above) was apparently still valid.", "86. The Court accepts, as indeed do the parties, that Article 96a of the Code of Criminal Procedure provided the statutory basis for the interference here at issue.", "87. There is no question of the above legal materials being insufficiently accessible.", "ii. Quality of the law", "88. Given the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification any interference with the right to protection of such sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake.", "89. The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources (see, mutatis mutandis, Voskuil v. the Netherlands, cited above, § 71 ).", "90. First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body. The principle that in cases concerning protection of journalistic sources “the full picture should be before the court” was highlighted in one of the earliest cases of this nature to be considered by the Convention bodies ( British Broadcasting Corporation, quoted above (see paragraph 5 4 above )). The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources ’ identity if it does not.", "91. The Court is well aware that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent orders or requests. In such situations an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether in the particular circumstances of the case the public interest invoked by the investigating or prosecuting authorities outweighs the general public interest of source protection. It is clear, in the Court ’ s view, that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality.", "92. Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist ’ s sources (see, for example, Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, cited above). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk (see, mutatis mutandis, Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 62-66, ECHR 2007 ‑ XI).", "93. In the Netherlands, since the entry into force of Article 96a of the Code of Criminal Procedure this decision is entrusted to the public prosecutor rather than to an independent judge. Although the public prosecutor, like any public official, is bound by requirements of basic integrity, in terms of procedure he or she is a “party” defending interests potentially incompatible with journalistic source protection and can hardly be seen as objective and impartial so as to make the necessary assessment of the various competing interests.", "94. According to the guideline of 19 May 1988, under B (see paragraph 3 7 above), the lawful seizure of journalistic materials required the opening of a preliminary judicial investigation and an order of an investigating judge. However, following the transfer of the power to issue surrender orders to the public prosecutor under Article 96a of the Code of Criminal Procedure, this guideline no longer served as a guarantee of independent scrutiny. As regards the quality of the law, it is therefore of no pertinence to the case before the Court.", "95. It is true, nonetheless, that the applicant company asked for the intervention of the investigating judge and that this request was granted. For the respondent Government and the Chamber the involvement of the investigating judge was considered to satisfy the requirement of adequate procedural safeguards.", "96. The Court, however, is not satisfied that the involvement of the investigating judge in this case could be considered to provide an adequate safeguard. It notes, firstly, the lack of any legal basis for the involvement of the investigating judge. Being nowhere required by law, it occurred at the sufferance of the public prosecutor.", "97. Secondly, the investigating judge was called in what can only be described as an advisory role. Although there is no suggestion that the public prosecutor would have compelled the surrender of the CD-ROM in the face of an opinion to the contrary from the investigating judge, the fact remains that the investigating judge had no legal authority in this matter - as he himself admitted (see paragraph 2 1 above). Thus it was not open to him to issue, reject or allow a request for an order, or to qualify or limit such an order as appropriate.", "98. Such a situation is scarcely compatible with the rule of law. The Court would add that it would have reached this conclusion on each of the two grounds mentioned, taken separately.", "99. These failings were not cured by the review post factum offered by the Regional Court, which was likewise powerless to prevent the public prosecutor and the police from examining the photographs stored on the CD-ROM the moment it was in their possession.", "100. In conclusion, the quality of the law was deficient in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources. There has accordingly been a violation of Article 10 of the Convention in that the interference complained of was not “prescribed by law”.", "D. Compliance with the other requirements of Article 10 § 2", "101. Having reached the conclusion that, given the absence of the requisite procedural safeguards, the compulsion by the authorities to disclose information in the present case was not “prescribed by law” as required by this provision, the Court need not ascertain whether the other requirements of the second paragraph of Article 10 of the Convention were complied with in the instant case – namely, whether the interference pursued one of the legitimate aims stated in that paragraph and whether it was necessary in a democratic society in pursuance of such aim.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "102. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "103. The applicant company made no claim in respect of pecuniary or non-pecuniary damage.", "B. Costs and expenses", "104. The applicant company submitted the following claims, supported by time-sheets, in respect of costs and expenses:", "in respect of the domestic proceedings, 49,111.15 euros (EUR) not including value-added tax;", "in respect of the proceedings before the Grand Chamber, EUR 68,022.00 (the Court understands this sum not to include value-added tax).", "The lawyers who represented the applicant company before the Chamber waived all costs in respect of the Chamber proceedings.", "The applicant company ’ s total claims thus came to EUR 117,133.15.", "105. The Government disputed the existence of a causal link between these costs and expenses and the events now found by the Court to have violated the Convention. They assumed that any violation which the Court might find, if violation there were, would relate to the lack of procedural safeguards. In their view, the seizure of the journalistic materials as such was a distinct issue; the decisions of the domestic authorities had not in themselves been contrary to Article 10 of the Convention and could therefore not give rise to an award of the sums claimed by the applicant company.", "106. In the alternative, they submitted that the sums claimed were excessive.", "107. Speaking at the Court ’ s hearing on 6 January 2010, the Government ’ s Agent drew attention to a press release suggesting that the applicant company ’ s representatives were paid by the non-governmental body Stichting Persvrijheidsfonds ( Fund for the Freedom of the Press ).", "108. Invited by the Court to respond to this statement in writing, the applicant company acknowledged that they were supported by that body inasmuch as it had promised to pay EUR 9,000 towards legal costs in the event that the Court should deny them their claim; however, they would be liable for the entire amount if they prevailed.", "109. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, as recent authorities, Šilih, cited above, § 226,; Mooren v. Germany [GC], no. 11364/03, § 134, ECHR 2009 ‑ ...; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 229, ECHR 2009 ‑ ... ).", "110. The Court finds it established that the applicant company actually incurred legal costs in the sense that they, as client, made themselves legally liable to pay their legal representatives on an agreed basis. The arrangements they made to cover their financial obligations to their representatives are not material for the purposes of Article 41. The situation in the present case is distinguishable from that in which liability for legal costs is borne by a third party (see Dudgeon v. the United Kingdom (former Article 50), 24 February 1983, §§ 21-22, Series A no. 59).", "111. Although the Court takes the Government ’ s point that it has not ruled on the substantive justification of the seizure complained of, for the purpose of costs and expenses it cannot in the present case separate procedure from substance. The proceedings initiated by the applicant company were appropriate to their complaint of inadequate procedural protection in that they offered the domestic authorities a realistic opportunity to redress the substantive failings alleged. Indeed, it is difficult to conceive that the Court would have declared the application admissible had the applicant company not made use of the possibilities offered by domestic law. A causal link between the violation found and the costs claimed therefore exists; in other words, the costs were “necessarily incurred”.", "112. However, the Court agrees that the sums claimed are not reasonable as to quantum either as regards the hourly rates applied or as regards the number of hours charged.", "113. Making its own assessment based on the information contained in the case file, the Court considers it reasonable to award EUR 3 5 ,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicant company.", "B. Default interest", "114. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant is a journalist for DN.no, a Norwegian Internet-based version of the newspaper Dagens Næringsliv (“ DN ”), published by the company DN Nye Medier AS.", "6. On 23 June 2010 Mr X was indicted for market manipulation and insider trading under the 1997 Act on the Trade of Financial Assets ( verdipapirhandelloven ). He was accused of having requested Mr Y, an attorney, to draft a letter concerning the Norwegian Oil Company (“DNO”), a limited liability company quoted on the stock exchange. The letter, addressed to a trustee company representing the interests of bond holders in DNO (“the bond trustee company”), gave the impression that it had been written on behalf of a number of bond holders who were seriously concerned about the company’s liquidity, finances and future. In fact, it had been written only on Mr X’s behalf. He had owned only one bond, which he had acquired the same day as he had asked attorney Y to draft the letter.", "7. Mr X had sent a copy of the above-mentioned letter by fax to the applicant on Friday 24 August 2007, and in this connection he had a telephone conversation with her. The following day, on Saturday 25 August 2007, the applicant wrote an article entitled “Fears of DNO collapse” (“ Frykter at DNO rakner ”), in which she expressed strong concerns about the content of Attorney Y’s letter, a central feature in the article.", "8. The price of DNO stock fell by 4.1% on Monday 27 August 2007, the first trading day after the content of the letter had become known in the press. On the same day, a new article on the topic was published in DN. Other media also reported on the first article, including an online newspaper ( Hegnar online ) which on 28 August 2007 reported that an analyst had stated that he would not be surprised if the letter had been sent by a person with a short-position or who wanted cheap stocks. The Oslo stock exchange ( Oslo børs ) suspected market manipulation and, having looked into the matter, forwarded the case to the Financial Supervisory Authority ( Kredittilsynet ) with suspicions that Mr X had infringed the Act on the Trade of Financial Assets. During subsequent questioning by the Financial Supervisory Authority, Mr X confirmed that he had initiated the letter and been the source of the article in DN.", "9. The applicant was questioned by the police on 19 June 2008. They informed her that Mr X had told the police that he had given her the letter. She was handed a signed statement from Mr X in which he confirmed this. The applicant was willing to say that she had received the letter on which the article was based by fax on Friday 24 August 2007, at 5.35 p.m. She also stated that the article had been published on DN.no at 3 a.m. on 25 August 2007. The applicant further explained that she had considered the information in the letter as price-sensitive. She had no particular thoughts as to how many persons were behind the letter, beyond the fact that it had been signed on behalf of several bond holders. The applicant refused to give additional information, referring to the journalistic principles on protection of sources.", "A. Order on the applicant to testify", "10. During the criminal case against Mr X in February 2011 before the Oslo City Court ( tingrett ), the applicant was summoned as a witness. She refused to answer questions about possible contacts between her and Mr X and other sources, if any, related to the publication by DN.no on 25 August 2007. Relying on Article 125 of the Code of Criminal Procedure and Article 10 of the Convention, she argued that she was under no obligation to give evidence on those points.", "11. The prosecutor requested that the court impose on the applicant an order to testify. In the court records (“ rettsboken ”), his arguments in favour of issuing such an order are restated as having included the following:", "“The prosecutor rose to speak and argued that the witness had an obligation to give testimony about her contact with the defendant in connection with the letter to [the bond trustee company] of 24 August 2007 and asked the court to make a decision on the matter. The prosecutor further justified the obligation of the witness to make a statement and argued that undoubtedly in this case it was desirable to hear her explanation, even if the prosecuting authority found the case adequately disclosed ( fullgodt opplyst ) without her statement. The press was sometimes abused by investors to take actions liable to affect the share price. The element of abuse should suggest that in a case like this the press would also have an interest in making a statement in order to avoid being abused in this way. Whether or not consent had been given by the source to the witness making her statement had no bearing on the obligation to give evidence. ...”", "12. From the same records, it appears that Mr X, through his counsel and co ‑ counsel, had submitted that he had described his contact with the applicant and that she could contribute nothing further of interest.", "13. By a decision of 15 February 2011, the City Court held that the applicant had a duty to give evidence about her contacts with Mr X in relation to the letter of 24 August 2007 from Attorney Y to the bond trustee company. As to the scope of that duty, the City Court held:", "“The obligation to make a statement is, however, limited to the contact with the defendant as a source and not her communication with possible other unknown sources with whom she has been in contact and who may be protected by the protection of sources.”", "14. The prosecutor then stated, according to the hearing protocol, “that he would not ask for postponement of the case as the prosecuting authority considers the case to be sufficiently disclosed (“ tilstrekkelig opplyst ”) even without the statement of the witness [the applicant]”. It was then clarified that the applicant’s appeal against the order would not be forwarded to the High Court until after the City Court’s judgment in the case against Mr X had been delivered.", "B. Mr X’s conviction at first instance", "15. On 3 March 2011 the City Court convicted Mr X in accordance with the indictment and sentenced him to one year and six months’ imprisonment, of which nine months were suspended for a probationary period of two years.", "16. The judgment contains the following passage:", "“One of the witnesses pleaded, as a journalist, the protection of sources under Article 125 of the Code of Criminal Procedure and was not willing to explain about her potential contact with the accused. The court held that the witness had an obligation to explain about her contact with the accused since he, as the source of the DN.no article, was known and the court ruled accordingly. An appeal was immediately made against the decision. No motion for extension was made (pending a final decision) as according to the prosecutor the case was sufficiently disclosed ( tilstrekkelig opplyst ) even without the statement by [the applicant] and this was used as a basis by the court.”", "17. On 28 March 2011 Mr X appealed to the Borgarting High Court ( lagmannsrett ) against the City Court’s assessment of the evidence and application of the law in relation to the issue of guilt, its procedure and the sentence (see paragraphs 34-36 below).", "C. Applicant’s appeal against the order to testify", "18. The applicant appealed to the Borgarting High Court against the City Court’s order of 15 February 2011. It rejected the appeal by a decision of 28 April 2011, finding it generally decisive whether the source was known. In this case, it had been established beyond reasonable doubt that Mr X had been the applicant’s source.", "19. An appeal by the applicant to the Supreme Court was rejected by three votes to two on 30 September 2011 ( Norsk Retstidende – Rt. 2011 page 1266). The appeal had been directed at the High Court’s assessment of evidence as well as its application of the law. The disagreement in the Supreme Court concerned primarily the interpretation of the first paragraph of Article 125 of the Code of Criminal Procedure, according to which, inter alia, journalists may refuse to answer questions as to who is the source of information confided to them for use in their work (see paragraph 37 below). The two factions of the Supreme Court disagreed, in particular, as to whether this provision was applicable if the source had stepped forward or the identity of the source had otherwise been established.", "1. The majority", "20. The majority observed that it did not appear from the wording of Article 125 § 1 of the Code of Criminal Procedure that it was relevant whether the source had disclosed his or her role or that this role had in other ways become known. However, the wording could not be given decisive weight. It emerged from the preparatory work that the legislature had not, with the chosen formulation, taken a stance on the issue at stake in the present case. There was therefore greater reason to assess whether the rationale underpinning the main rule, namely the right not to answer questions concerning the identity of the source, could also be given significant weight when the person, who had been the source of the information, had given evidence concerning his or her role and had confirmed being the source. It was difficult to see that this should be the case.", "21. If the imposition of an obligation on the press to give evidence were limited to cases where the source had come forward, the person who was considering giving information to the press would know that it was up to him or her to determine whether the person who received the information would have an obligation to give evidence. There was thus no cogent reason why such a conditional obligation to give evidence should lead to increased scepticism towards providing information to the press. The same would, to a great extent, be true if the obligation to give evidence also applied when the identity of the source had become known in some other way. While the possibility that the identity of the source might be disclosed could well constitute a deterrent, it would hardly make much difference if information already known was also confirmed by the recipient of the information.", "22. An obligation on the press to give evidence in such cases was not thought likely to weaken the public’s general trust that the press would protect its sources. The situation under review did not concern the disclosure of sources but rather whether the person’s role had become known by other means.", "23. The majority further disagreed with the applicant’s view that there was no reason to treat a situation, where the informant had identified himself or herself as the source, differently from those cases where the source had consented to being identified. A person who so consented could do so, trusting that the recipient of the information would respect the protection of sources as long as the identity of the source was unknown. Once an informant had confirmed that he was the source, this fact would become known. Should the recipient of the information then refuse to give evidence, this would normally appear futile. In such a situation, an exemption from the obligation to give evidence would in reality not constitute a protection against having to disclose the source, but rather a right to avoid contributing to the elucidation of a criminal case.", "24. Interpreting Article 125 § 1 of the Code of Criminal Procedure in the light of certain statements made in the preparatory work ( Ot.prp. nr. 55 (1997-1998), pp. 17 and 18) as followed up in the Supreme Court’s case ‑ law ( Rt. 1995 page 1166 and 2003 page 28), the majority held that this provision did not apply when the source had come forward and had confirmed his or her role. The same ought probably to apply when the identity of the source had been established beyond reasonable doubt by other means. If the state of the evidence was such that confirmation by the journalist of the identity of the source could not be said to assist in identifying the source, it seemed unquestionable to maintain the obligation to testify.", "25. As to whether a more wide-reaching protection of journalistic sources followed from Article 10 of the Convention, the majority had regard to the Strasbourg Court’s case-law, including Goodwin v. the United Kingdom (27 March 1996, Reports of Judgments and Decisions 1996 ‑ II), Financial Times Ltd and Others v. the United Kingdom (no. 821/03, 15 December 2009) and the Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands (no. 38224/03, 31 March 2009 – noting that the Grand Chamber had decided the latter case on a different ground). They observed that in the two British cases, a violation had been found under the necessity test even though strong countervailing arguments had been present. The majority further noted that there was no decision where the Court had examined the situation where the source had come forward and where in this sense there was no source to protect (“ ingen kilde å beskytte ”). The principal justification for source protection, as elaborated by the Court in its case-law, was based on the consequences that the disclosure of a source’s identity might have for the free flow of information. However, these considerations did not apply where the source had confirmed his or her participation.", "26. Against this background, one could safely assume that no violation of the Convention would arise where a source had come forward and the obligation of the witness to give evidence had been expressly limited so as not to include questions that might lead to other sources being revealed. Also, the charge in this case had been based on the fact that the journalist had allowed herself to be used by the source in his efforts to manipulate the bonds market in a criminal manner. It was a serious criminal case, where it seemed likely that the applicant’s evidence might significantly assist in elucidating the concrete circumstances of the defendant’s contact with her.", "2. The minority", "27. The minority observed that, should the applicant be ordered to testify concerning her possible contact with Mr X about Attorney Y’s letter of 24 August 2007 to the trustee company, she would have to confirm or deny that Mr X was the source for her article on DN.no on 25 August 2007. By making a statement on this matter, she might also inadvertently reveal other potential sources. The legal question at hand was whether a journalist might rely on source protection if the source, without the journalist having revealed it, could be identified with more or less certainty by other evidence.", "28. The wording of Article 125 of the Code of Criminal Procedure was absolute and granted members of the press, broadcasting and other media the right to “refuse to answer questions concerning who is ... the source”. The provision made no exception for cases where the identity could be established with more or less certainty in some other way.", "29. The protection of sources by journalists was, according to the European Court’s case-law, “one of the basic conditions for press freedom” ( Goodwin, cited above, § 39). The purpose was not to protect the source, but rather the public interest in free communication of news and opinions ( Rt. 2010 page 1381). If journalists were allowed to protect their sources, they would obtain information enabling them to uncover matters in society that were worthy of criticism more easily than they would otherwise. The fact that it was for the journalist to decide to what extent he or she would rely on such protection reflected that it was not the source who was protected. If the journalist was willing to reveal the source, the source could not prevent it.", "30. If it were a precondition for the protection of journalistic sources that no other proof of the source had been presented, such protection would be undermined. This would enable a source to be tracked down, even if a requirement for waiver of source protection was that the source be identified with a criminal standard of proof. If the hearing of evidence on the identity of a source were to be allowed, the media’s working conditions would become considerably more constricted and society’s interest in free communication of information and opinions would suffer.", "31. If consent to source disclosure by a potential source should have the effect of removing source protection, the actual source might easily be identified and source protection would be undermined. In the present case Mr X had stated that he was the source. A situation where someone claimed to be the source ought to be considered in the same way as where the source consented to disclosure of his or her identity. A person might incorrectly claim to be the source so that the actual source might be identified by a process of elimination. And even if it were true that this person was the source, it would erode the journalist’s right to source protection should the person who was the source be able to cancel the journalist’s right. In addition, journalists often had several sources. If a journalist could be ordered to describe his or her contact with a person who claimed to be the source, his or her contact with other sources might also be revealed.", "32. Equally, a combination of someone claiming to be the source and other evidence confirming this, should not lead to source protection being removed. Effective source protection was necessary in order to ensure free communication of information and opinions. It should not be permissible for press journalists to confirm or deny that a person claiming to be the source was in fact the source, even where there was weighty evidence to this effect. As mentioned above, it was not the source, but society’s interest in free communication of news and opinions, which was to be protected.", "33. The prosecutor had argued that Mr X had used the applicant as a tool to commit serious crimes, and this would have constituted a relevant argument, had the case been one concerning a possible individual exception to the right to non-disclosure of sources made under the third paragraph of Article 125. However, the prosecutor had not relied on that paragraph of the provision, and the source’s motive could not render the principle of source protection as such inapplicable. Within the ambit of Article 10 of the Convention, freedom of speech did not protect only information and views that were positively received, but also those which offended, shocked or disturbed the State or parts of the population. Therefore, the fundamental right of journalists to protect their sources could not be dependent on the sources’ motives.", "D. Appeal proceedings in the criminal case against Mr X", "34. Mr X’s appeal against the City Court’s judgment of 3 March 2011 (see paragraph 17 above) was examined by the High Court, which summoned and heard the applicant as a witness on 13 January 2012. She answered certain questions but affirmed that she still would not reply to questions about her contacts with Mr X. The court records contain the following passage:", "“When heard as a witness [the applicant] stated that she had received Attorney [Y]’s letter by fax on 24 August 2007 at 5.35 p.m. She does not wish to answer questions about who she had received the letter from or on her possible contact with Mr [X] during the period before or after this point in time. The presiding judge pointed out to the witness that after a legally enforceable decision by the Supreme Court she was obliged to give evidence about her contacts with Mr [X]. The presiding judge underlined that an omission to reply to such questions could constitute a ground for the imposition of a fine for an offence against the good order of court proceedings [ “rettergangsbot” ]. It was emphasised that the duty to reply lay on the witness personally and that a possible fine would be imposed on her personally.”", "35. On account of her refusal to comply, the High Court, by a decision of 25 January 2012, ordered the applicant to pay a fine of 30,000 Norwegian kroner (NOK), approximately 3,700 euro (EUR) for an offence against the good order of court proceedings, failing which she would be liable to ten days’ imprisonment. The applicant did not appeal against that decision.", "36. By a judgment of the same date, the High Court convicted Mr X on the charges and sentenced him to one year and six months’ imprisonment.", "i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and", "ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:", "- an overriding requirement of the need for disclosure is proved,", "- the circumstances are of a sufficiently vital and serious nature,", "- the necessity of the disclosure is identified as responding to a pressing social need, and", "- member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.", "c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.”", "In the present case, the following paragraphs of the explanatory report are also of relevance:", "“d. Information identifying a source", "18. In order to protect the identity of a source adequately, it is necessary to protect all kinds of information which are likely to lead to the identification of a source. The potential to identify a source therefore determines the type of protected information and the range of such protection. As far as its disclosure may lead to an identification of a source, the following information shall be protected by this Recommendation:", "i. the name of a source and his or her address, telephone and telefax number, employer’s name and other personal data as well as the voice of the source and pictures showing a source;", "ii. ’the factual circumstances of acquiring this information’, for example the time and place of a meeting with a source, the means of correspondence used or the particularities agreed between a source and a journalist;", "...”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL MATERIAL", "A. Domestic law", "37. The relevant articles of the Code of Criminal Procedure of 22 May 1981 ( straffeprosessloven ) read as follows:", "“Article 108. Unless otherwise provided by statute, every person summoned to attend as a witness is bound to do so and to give evidence before the court.", "Article 125. The editor of a printed publication may refuse to answer questions as to who is the author of an article or report in the publication or the source of any information contained in it. The same applies to questions as to who is the source of other information that has been confided to the editor for use in his work.", "Other persons who have acquired knowledge of the author or the source through their work for the publishers, editors, press agency or printers in question have the same right as the editor.", "When important social interests indicate that the information should be given and it is of substantial significance for the clarification of the case, the court may, however, on an overall evaluation, order the witness to reveal the name. If the author or source has revealed matters that it was socially important to disclose, the witness may be ordered to reveal the name only when this is found to be particularly necessary.", "When an answer is given, the court may decide that it shall only be given to the court and the parties at a sitting in camera and under an order to observe a duty of secrecy.", "The provisions of this section apply correspondingly to any director or employee of any broadcasting agency.”", "There is extensive Supreme Court case-law concerning the main rule in Article 125 § 1 about the protection of journalists’ sources and the exception clause in Article 125 § 3 (see, for instance, paragraph 24 above). The Supreme Court interprets the provision in the light of Article 10 of the Convention.", "38. Section 205 § 1 of the Act Relating to the Courts of Justice of 13 August 1915 ( domstolloven ) reads:", "“Where a witness refuses to give evidence or give affirmation and provides no grounds or provides only those grounds that are dismissed by a legally enforceable ruling, said witness may be penalised by fines and ordered to compensate, in whole or in part, for the costs incurred. A party may also be penalised by fines in cases concerning attachment or garnishment of earnings, where he/she wilfully fails to provide the enforcement authority with the information said party is obligated to provide pursuant to the Enforcement Act, §§ 7-12.”", "B. International material", "39. In 2011 the UN Human Rights Committee adopted General Comment no. 34 concerning Article 19 of the International Covenant on Civil and Political Rights (CCPR/C/GC/34), which reads, inter alia, (footnote omitted):", "“States parties should recognize and respect that element of the right of freedom of expression that embraces the limited journalistic privilege not to disclose information sources.”", "40. On 8 September 2015 the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression submitted a report to the UN General Assembly (A/70/361), which stated, inter alia (footnotes omitted):", "“C. Nature and scope of protection", "21. Some authorities refer to a journalistic ‘privilege’ not to disclose a source’s identity, but both reporter and source enjoy rights that may be limited only according to article 19 (3). Revealing or coercing the revelation of the identity of a source creates disincentives for disclosure, dries up further sources to report a story accurately and damages an important tool of accountability. In the light of the importance attached to source confidentiality, any restrictions must be genuinely exceptional and subject to the highest standards, implemented by judicial authorities only. Such situations should be limited to investigations of the most serious crimes or the protection of the life of other individuals.", "22. National laws should ensure that protections apply strictly, with extremely limited exceptions. Under Belgian law, journalists and editorial staff may be compelled by a judge to disclose information sources only if they are of a nature to prevent crimes that pose a serious threat to the physical integrity of one or more persons, and upon a finding of the following two cumulative conditions: (a) the information is of crucial importance for preventing such crimes; and (b) the information cannot be obtained by any other means. The same conditions apply to investigative measures, such as searches, seizures and telephone tapping, with respect to journalistic sources.”", "41. Other international instruments concerning the protection of journalistic sources include the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994), and Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information, adopted by the Committee of Ministers of the Council of Europe on 8 March 2000. Relevant parts of the Recommendation, with the explanatory report, are quoted in Voskuil v. the Netherlands, no. 64752/01, §§ 43-44, 22 November 2007, inter alia :", "“Principle 3 (Limits to the right of non-disclosure)", "a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.", "b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "42. The applicant complained that the Supreme Court’s decision of 30 September 2011, rejecting her appeal against the judicial order requiring her to give evidence about her contacts with Mr X, had given rise to an unjustified interference with her right not to be compelled to disclose her journalistic sources as inherent in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "43. The Government disputed that there had been a violation of that provision.", "A. Admissibility", "44. The applicant appealed against the City Court’s ruling of 15 February 2011 about her duty to testify before the High Court and the Supreme Court (see paragraphs 13, 18 and 19 above). She did not appeal against the High Court’s decision of 25 January 2012 ordering her to pay a fine because of her refusal to testify about her contact with Mr X (see paragraph 35 above). The Government have understood the application as addressing the order to give evidence. The Court is of the same view and simply notes that the issue of non-exhaustion has not been raised by the Government.", "45. As regards, specifically, the impugned order to give evidence, the Court notes that the case does not appear before it in entirely the same way as it did before the Supreme Court. The applicant’s appeal to the Supreme Court was directed against the High Court’s assessment of evidence and the application of the law. The parties’ submissions before the Supreme Court and the reasoning of that court concerned primarily the interpretation and applicability of the first paragraph of Article 125 of the Code of Criminal Procedure (see paragraphs 19 to 33 above).", "46. At the same time, the Court has taken account of the fact that the Supreme Court did examine in substance whether the order to give evidence could be upheld in the light of Article 10 of the Convention, based on arguments by the parties, including arguments relating to the proportionality test under the second paragraph of that provision. The Supreme Court accordingly examined relevant factors such as the conduct of the source, the seriousness of the criminal case and the degree to which testimony from the applicant would assist in that case (see paragraph 26 above).", "47. Finding that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds, it must be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicant", "48. The applicant submitted that the decision ordering her to reveal her source was an interference under Article 10 which was not prescribed by law. It followed from Article 125 of the Code of Criminal Procedure that journalists could not be obliged to do so. The wording contained no exception for situations in which the source was allegedly known, and no domestic case-law supported a different interpretation. The fact that a person had stated that he was the source, or a court’s own assessment of whether this was probable, could not – according to Article 125 – oblige the journalist to confirm or disprove the identity of the source.", "49. It was clear that if an order to give evidence were issued, a journalist might disclose other sources. However, it would be flawed to attempt to assess an exact risk of such disclosure, and the Supreme Court had, at this point, in reality resorted to a “paradoxical” reasoning: the Supreme Court had been wrong to base its decision on the ground that “the” source had stepped forward – and that there was, therefore, no risk of other sources being revealed – inasmuch as the applicant had in fact refused to give testimony about her source or sources. The alleged absence of a risk of other sources being disclosed could in reality not be properly evaluated beforehand and could therefore not form an argument in favour of ordering such disclosure. On the other hand, had the Supreme Court been correct to base its decision on the same ground – that “the” source had stepped forward – there could not be any need for the applicant to testify on the matter.", "50. If future potential sources learnt that their identity might be investigated by the police and that they could subsequently be the subject of great interest in court, this would have an obvious chilling effect. In addition, a rule not protecting the “probable” source could easily lead to wrong decisions, as the press would not participate in such proceedings and it would be left to the parties of the case to choose evidence to present to the courts on the question of who might be sources.", "51. When assessing the necessity of the interference, account had to be taken of the fact that in the present case the applicant’s testimony would not have had any real significance. The prosecutor before the City Court had positively stated that there was no need for the applicant to give evidence in order for the prosecutor to be capable of fulfilling the burden of proof against Mr X, and there was no indication that the source’s identity was any more uncertain at the time when the Supreme Court examined the impugned order than when the City Court had dealt with the case. Mr X had maintained that he was the source throughout.", "52. While it was correct that the order to give evidence had not directly specified a duty to confirm Mr X’s identity, it was clear to the applicant that statements describing what he had said would immediately reveal whether he actually was a source, the only source, or not a source at all. If there were other sources, it was also highly probable that a detailed statement from the applicant would reveal this.", "(b) The Government", "53. Accepting that the court order to testify amounted to an interference under Article 10 of the Convention, the Government submitted that it was prescribed by law. They recognised that the wording of Article 125 § 1 of the Code of Criminal Procedure, viewed in isolation, might indicate that journalistic privilege included a right to refuse to deny that an identified individual had been a source, or the source. However, the Supreme Court’s majority had interpreted that provision in the light of the legislative documents and Supreme Court case-law to the effect that Article 125 § 1 did not go so far as to exempt journalists in situations where the identity of the source was already known. That interpretation had been accessible and foreseeable.", "54. The Government further argued that the court order against the applicant pursued a legitimate aim – the prevention of disorder and crime – and also pointed to the protection of the rights of others, namely the rights of listed companies and actual or potential investors in the market.", "55. It should be recalled that the subject-matter of the case was not an explicit order of source disclosure in so far as Mr X, during the City Court hearing, had conceded that he was the source. The scope of the court order had been limited to testimony with regard to the applicant’s contact with Mr X.", "56. The principle of source protection had a two-fold basis, protecting the journalist’s role as such, but also protecting actual and future sources. When one of them had been willingly disclosed, the Government contended that an important, but by no means decisive reason for the degree of protection had failed to materialise. Given the voluntary waiver of non-disclosure by the source itself, the Government could not see that a limitation of the degree of protection would have had any chilling effect on the willingness of future sources to confide in journalists. Nor could it, in the Government’s view, prove detrimental to the journalist’s role as such.", "57. Although the Government recognised the general relevance of the argument that a journalist might disclose sources by denying that a person was the source, this had not been an issue in the present case, as Mr X had confirmed that he was the source. The applicant, in her limited statement, had also in fact corroborated that Mr X was the source by stating that she had received the fax from her unnamed source at approximately 5.35 p.m., which coincided with Mr X’s statement that he had received the fax from lawyer Y at around 5 p.m.", "58. The Government emphasised the gravity of Mr X’s market manipulation. That type of offence attained an inherent risk of vast financial repercussions and wide-reaching consequences also, as investor confidence was at stake. Another important aspect of this type of criminal offence was the difficulty in detecting it. Moreover, a fundamental characteristic of the case was the role that the applicant had unwittingly played in the criminal offence. Without questioning the journalistic methods employed by the applicant when assessing the veracity of the letter commissioned by Mr X, the Government maintained that where the journalistic effort in itself was an unwitting part of the criminal offence, the overriding aim behind the interference arguably had to attain greater weight, namely the interest of the investigation of the offence itself. An obligation to give evidence as imposed in the present case could also be held to be in the interest of journalists, in order to avoid journalistic privilege being used by third parties as a means to conceal criminal actions. It would relieve the journalist of having to make the difficult choice between concealing a source where it was evident that the journalist had been manipulated for fraudulent purposes, or voluntarily giving up the source with the detrimental effect that this might have for the confidence of future sources.", "2. The Court’s assessment", "59. The parties agreed that there had been an “interference” with the applicant’s rights under Article 10 § 1 of the Convention and the Court sees no reason to hold otherwise. It must therefore examine whether the interference was justified under the second paragraph of that provision.", "60. It is moreover undisputed that the order to give evidence was issued for the purpose of “the prevention of ... crime”, and the Court is of the same view. It does not find it necessary to decide whether the interference also pursued another legitimate aim, the “rights of others”, which was pointed to by the Government (see paragraph 54 above). The Court will now examine whether the interference was “prescribed by law” and “necessary in a democratic society”.", "(a) Whether the interference was “prescribed by law”", "61. The applicant principally argued that the order to give evidence ran counter to Article 125 of the Code of Criminal Procedure, as that provision did not make any exceptions for situations in which the source’s identity was known (see paragraph 48 above). The Government pointed out that the majority on the Supreme Court had interpreted that provision in line with relevant legal sources under domestic law (see paragraph 53 above).", "62. The Court reiterates its settled case-law according to which the expressions “prescribed by law” and “in accordance with the law” in Articles 8 to 11 of the Convention not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question. The law should be both adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct (see, for example, Sanoma Uitgevers B.V., cited above, § 81). Furthermore, the Court reiterates that it is primarily for the national authorities to interpret and apply domestic law (see, as a recent example, De Tommaso v. Italy [GC], no. 43395/09, § 108, 23 February 2017).", "63. In the instant case, the order to give evidence was clearly based on Articles 108 and 125 of the Code of Criminal Procedure (see paragraph 37 above). The case before the Supreme Court focused on the interpretation and application of the latter. In reaching its decision, that court availed itself of its case-law, as well as preparatory work in respect of the provisions (see paragraph 24 above). It concluded that, as the first paragraph of Article 125 was inapplicable, the applicant was obliged to give evidence in accordance with Article 108.", "64. Against the above background, the Court is satisfied that the interference was “prescribed by law”.", "(b) Whether the interference was “necessary in a democratic society”", "(i) General principles and case-law", "65. The Court has developed the principles governing the protection of journalistic sources in a series of judgments. Already in 1996, the Grand Chamber stated in Goodwin (cited above, § 39) as follows:", "“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms ... Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”", "66. In Sanoma Uitgevers B.V. (cited above, § 51), the Grand Chamber reiterated as follows:", "“The Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest ... .”", "67. Furthermore, in Financial Times Ltd and Others (cited above, § 63), the Court stated the following:", "“In the case of disclosure orders, the Court notes that they have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves ... While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2.”", "68. In the same Chamber judgment, the Court considered, however, that “there [might] be circumstances in which the source’s harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order” (ibid., § 66).", "69. In Voskuil (cited above, § 67), the Court, in response to the Government’s argument that source disclosure had been necessary in order to secure a fair trial for the accused, stated:", "“The Court sees no need on this occasion to consider whether under any conditions a Contracting Party’s duty to provide a fair trial may justify compelling a journalist to disclose his source. Whatever the potential significance in the criminal proceedings of the information which the Court of Appeal tried to obtain from the applicant, the Court of Appeal was not prevented from considering the merits of the charges against the three accused; it was apparently able to substitute the evidence of other witnesses for that which it had attempted to extract from the applicant .... That being so, this reason given for the interference complained of lacks relevance.”", "70. Issues concerning source disclosure have not only arisen with respect to disclosure orders, but also in cases dealing with investigative searches, including Görmüş and Others v. Turkey (no. 49085/07, 19 January 2016) and Nagla v. Latvia (no. 73469/10, 16 July 2013). In the latter, the Court noted that there was a fundamental difference between that case and other cases, where disclosure orders had been served on journalists, requiring them to reveal the identity of their sources. However, the distinguishing feature lay not, as the Government in that case had suggested, in the fact that the source’s identity had been known to the investigating authorities prior to the search. According to the Court, that fact “[did] not remove the applicant’s protection under Article 10 of the Convention” (ibid., § 95).", "(ii) Application of those principles in the present case", "71. At the outset, the Court observes that the sentencing of Mr X – the alleged source of the applicant’s incorrect article – was based on the assumption that he had wanted the information to be spread as news. Accordingly, the present case does not involve allegations of unlawful activity by the applicant, or criminal investigations of or proceedings against her, beyond those related to her refusal to give evidence on her contact with Mr X. In this context, the Court also notes that the Government have not questioned the journalistic methods employed by the applicant.", "72. The Court, moreover, notes that the applicant was not expressly ordered to reveal the identity of the source or sources of the information in her news article. The City Court’s ruling of 15 February 2011 (see paragraph 13 above) was limited to ordering her to testify on her contact with Mr X, who himself had declared that he was the source. However, while not formally a matter of a journalist assisting in the identification of anonymous sources, the Court considers that the possible effects of the order were nonetheless of such a nature that the general principles developed with respect to orders of source disclosure are applicable to the case. The concrete framing of the order is instead a factor in the overall assessment (see paragraph 82 below).", "73. In its decision of 30 September 2011, the majority of the Supreme Court observed that there was no case-law from the Court about the situation where the source had come forward. The decision went on to state that in such a situation there was thus no source to protect, and that the disclosure of the source’s identity would have no consequences for the free flow of information (see paragraph 25 above).", "74. The Court confirms that it has not previously had occasion to consider the specific question arising in the present case. At the same time it points out that in cases where a source was clearly acting in bad faith with a harmful purpose, it has held that the conduct of the source could never be decisive in determining whether a disclosure order ought to be made but would operate as merely one, albeit important, factor to be taken into account in the balancing exercise under Article 10 § 2 of the Convention (see, paragraphs 67-68 above, citing Financial Times Ltd and Others, cited above, §§ 63 and 66, and also Telegraaf Media Nederland Landelijke Media B.V. and Others v. The Netherlands, no. 39315/06, § 128, 22 November 2012). Consequently, a journalist’s protection under Article 10 cannot automatically be removed by virtue of a source’s own conduct. In the Court’s view, these considerations are also relevant in a situation where a source comes forward, as in the present case. The Court would add, moreover, that it has previously held that source protection under Article 10 applies also where a source’s identity was known to the investigating authorities before a search (see paragraph 70 above).", "75. The Court further notes that the Supreme Court was primarily called upon to decide on the correct interpretation of Article 125 § 1 of the Code of Criminal Procedure (see paragraph 37 above), and in particular to clarify whether that provision was applicable in situations where the source had come forward (see paragraphs 19-33 above). The exception clause in Article 125 § 3, where the domestic courts have to balance source protection against other important interests (“important social interests” and “the clarification of the case”) had not been relied upon by the prosecutor (see paragraph 33 above). However, the Court’s task is broader. In assessing whether the interference was “necessary” under Article 10 § 2 it has to examine whether relevant and sufficient reasons were adduced for the concrete judicial order to give testimony which was imposed on the applicant. Circumstances concerning Mr X’s identity are only one element in that assessment. While agreeing with the Supreme Court in its general consideration that a source’s coming forward might be apt to mitigate some of the concerns intrinsic to measures implying source disclosure, the Court maintains that the knowledge of Mr X’s identity cannot be decisive for its proportionality assessment.", "76. That being said, the Court has held that protection afforded to journalists in respect of their right to keep their sources confidential is “two ‑ fold, relating not only to the journalist, but also and in particular to the source who volunteers to assist the press in informing the public about matters of public interest” (see Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005 ‑ XIII, and, for example, Stichting Osade Blade (dec.), no. 8406/06, § 64, 27 May 2014). Accordingly, the circumstances with respect to both Mr X’s motivation for presenting himself to the applicant as a “source” and the fact that he came forward during the investigation suggest that the degree of protection under Article 10 of the Convention to be applied in the present case cannot reach the same level as that afforded to journalists who have been assisted by persons of unknown identity to inform the public about matters of public interest or matters concerning others.", "77. The fact that Mr X was charged with having used the applicant as a tool to manipulate the market was, as observed by the Supreme Court, relevant to the proportionality assessment (see paragraph 26 above). Yet, source disclosure became, in the instant case, an issue first in the criminal investigations concerning Mr X at a point in time when there were no questions of, for example, preventing further injury to the company dealt with in the letter that had been faxed to the applicant (DNO) or to its shareholders (contrast, for instance, Goodwin, cited above, § 41, where an urgent order for source disclosure had been made primarily to prevent severe damage to a company before a subsequent injunction). In the present case, the source’s harmful purpose therefore carried limited weight at the time when the order to testify was imposed.", "78. In the Court’s view, the decision as to whether the order against the applicant was “necessary” under Article 10 § 2 mainly had to turn on an assessment of the need for her evidence during the criminal investigation and subsequent court proceedings against Mr X. It notes that Mr X himself did not argue that it was necessary that the impugned order be imposed on the applicant for the purpose of safeguarding his rights. Through his counsel he stated that he had described his contact with the applicant (see paragraph 12 above) and he never denied that he was the source.", "79. In assessing the necessity for the “prevention of crime and disorder” (see paragraph 60 above) account must be taken of the gravity of the offences of which Mr X was suspected, as emphasised by the Supreme Court (see paragraph 26 above), and for which he was ultimately sentenced to one year and six months’ imprisonment. Although market manipulation was not the only count on which Mr X had been indicted, it formed an important part of the criminal case.", "80. On the other hand, the Court notes that the applicant’s refusal to disclose her source or sources did not at any point in time hinder the investigation of the case or the proceedings against Mr X. At first, the prosecuting authority lodged its indictment against Mr X without having received any information from the applicant that could reveal her source or sources (see paragraph 6 above). Thereafter, neither the City Court nor the High Court was prevented from considering the merits of the charges (see paragraphs 15 and 36 above). On the contrary, it emerges from the court records as well as the City Court judgment that that court had been informed by the prosecutor that he considered that the case would be sufficiently elucidated, even without the applicant’s testimony (see paragraphs 11 and 16 above). After the applicant had appealed against the order, the prosecutor stated that he would not submit a petition for adjournment of the case as the prosecution still considered the case to be adequately established without the applicant’s statement (see paragraph 14 above). Finally, it was then clarified that the applicant’s appeal against the order would not be forwarded to the High Court until after the City Court’s judgment in the case against Mr X had been delivered (see paragraph 14 above). In that judgment the City Court stated that no motion of extension had been made (pending a final decision), referring to the prosecutor’s position that the case was sufficiently made out (see paragraph 16 above). Neither the City Court nor the High Court, in their judgments against Mr X, gave any indication that the applicant’s refusal to give evidence had attracted any concerns of those courts as regards the case or the evidence against Mr X.", "81. In the case concerning the question whether the applicant had a duty to testify about her contact with Mr X, the Supreme Court remarked that it seemed likely that the applicant’s statement might significantly assist in elucidating the further circumstances surrounding the defendant’s contact with her (see paragraph 26 above). In the criminal case against Mr X, however, the applicant’s refusal to disclose her source or sources did not at any point in time hinder the progress of the case (see paragraph 80 above). In this context, the Court observes that in Voskuil (cited above) it found the potential significance in criminal proceedings of the information sought from a journalist insufficient under Article 10 as a reason to justify compelling him to disclose his source or sources. It took into account the fact that the domestic court was not prevented from considering the merits of the case (see paragraph 69 above). While that finding was made in response to an argument that source disclosure had been necessary in order to ensure a fair trial for the accused ( Voskuil, cited above, § 67), the Court considers that it must have a bearing also in the present case (see paragraphs 78-80 above).", "82. The Court has previously emphasised that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources (see Financial Times Ltd. and Others, cited above, § 70). In the present case the disclosure order was limited to ordering the applicant to testify about her contact with Mr X, who himself had declared that he was the source. While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage in this situation (see similarly ibid.), the Court considers that the circumstances in the present case were not sufficient to compel the applicant to testify (see paragraphs 78-81 above).", "83. Consequently, while being aware that the Supreme Court was only to a limited degree invited to carry out a proportionality test under Article 10 § 2 of the Convention (see paragraph 75 above), the Court – having regard to the importance of the protection of journalistic sources for press freedom – finds that the reasons adduced in favour of compelling the applicant to testify about her contact with Mr X, though relevant, were insufficient. Thus, even bearing in mind the appropriate level of protection applicable to the particular circumstances of the case (see paragraph 76 in fine above), it is not convinced that the impugned order was justified by an “overriding requirement in the public interest” (see paragraphs 65 and 66 above) or, therefore, necessary in a democratic society.", "84. The Court accordingly concludes that there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "85. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "86. The applicant did not claim compensation for non-pecuniary damage. She claimed 30,000 Norwegian kroner (NOK), approximately 3,700 euros (EUR), in respect of pecuniary damage.", "87. The Government contested that claim on the ground that the applicant had not adduced any evidence to show whether the fine had actually been paid by the applicant or by her employer.", "88. The Court notes that a fine of NOK 30,000 was imposed on the applicant as a personal, non-alienable, liability. While phrased as a claim for just satisfaction, her claim is in reality for the reimbursement of that fine. Although the applicant did not appeal against the fine, the Court, having regard to the violation found above (see paragraphs 83 and 84 above) and the principle of restitutio in integrum, finds in the circumstances that neither the considerations concerning the directness of the causal link or the applicant’s possibilities of mitigating losses, nor her possibilities of further domestic remedies against the fine viewed in isolation, alter the consideration that the fine should not have to be paid, or if it has already been paid, that it should be reimbursed by the respondent Government (see, in comparison, as regards Article 6 of the Convention, Sace Elektrik Ticaret ve Sanayi A.Ş. v. Turkey, no. 20577/05, § 39, 22 October 2013). It thus rules accordingly.", "B. Costs and expenses", "89. The applicant also claimed NOK 158,399, approximately EUR 17,000, for the costs and expenses incurred before the Court.", "90. The Government contested that claim. They noted that the applicant had not adduced any evidence to show that she had paid any costs or expenses. It appeared from the print-outs of fees and costs that the applicant’s employer had been billed.", "91. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, no invoices have been presented. From the print-outs of fees and costs it emerges, however, that the billable client was Dn Nye Medier AS, the proprietor of the newspaper Dagens næringsliv. It has not been shown that the applicant is herself liable for any costs. That being so, the Court rejects her claims (see, in comparison, Voskuil, cited above, § 92).", "C. Default interest", "92. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "BACKGROUND", "12. The three applications were introduced following revelations by Edward Snowden concerning the electronic surveillance programmes operated by the intelligence services of the United States of America and the United Kingdom.", "13. The applicants, who are listed in the Appendix, all believed that due to the nature of their activities, their electronic communications were likely to have either been intercepted by the United Kingdom intelligence services; obtained by the United Kingdom intelligence services after being intercepted by foreign governments; and/or obtained by the United Kingdom authorities from communications service providers (“CSPs”).", "THE RELEVANT INTERNET SECRET SURVEILLANCE SCHEMES", "14. Internet communications are primarily carried over international sub ‑ marine fibre optic cables operated by CSPs. Each cable may carry several “bearers”, and there are approximately 100,000 of these bearers joining up the global Internet. A single communication over the Internet is divided into “packets” (units of data) which may be transmitted separately across multiple bearers. These packets will travel via a combination of the quickest and cheapest paths. Consequently, some or all of the packets of any particular communication sent from one person to another, whether within the United Kingdom or across borders, may be routed through one or more other countries if that is the optimum path for the CSPs involved.", "The United KingdomBulk interception", "Bulk interception", "Bulk interception", "15. The Edward Snowden revelations made in 2013 indicated that Government Communications Headquarters (“GCHQ”, being one of the United Kingdom intelligence services) was running an operation, codenamed “TEMPORA”, which allowed it to tap into and store huge volumes of data drawn from bearers. The United Kingdom authorities neither confirmed nor denied the existence of an operation codenamed TEMPORA.", "16. However, according to the March 2015 Report of the Intelligence and Security Committee of Parliament (“the ISC report” – see paragraphs 142 ‑ 149 below), GCHQ was operating two major processing systems for the bulk interception of communications.", "17. The first of the two processing systems referred to in the ISC report was targeted at a very small percentage of bearers. As communications flowed across the targeted bearers, the system compared the traffic against a list of “simple selectors”. These were specific identifiers (for example, an email address) relating to a known target. Any communications which matched the simple selectors were collected; those that did not were automatically discarded. Analysts then carried out a “triage process” in relation to collected communications to determine which were of the highest intelligence value and should therefore be opened and read. In practice, only a very small proportion of the items collected under this process were opened and read by analysts. According to the ISC report, GCHQ did not have the capacity to read all communications.", "18. The second processing system was targeted at an even smaller number of bearers (a subset of those accessed by the process described in the paragraph above) which were deliberately targeted as those most likely to carry communications of intelligence interest. This second system had two stages: first, the initial application of a set of “processing rules” designed to discard material least likely to be of value; and secondly, the application of complex queries to the selected material in order to draw out those likely to be of the highest intelligence value. Those searches generated an index, and only items on that index could be examined by analysts. All communications which were not on the index had to be discarded.", "19. The legal framework for bulk interception in force at the relevant time is set out in detail in the “relevant domestic law” section below. In brief, section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraph 72 below) allowed the Secretary of State to issue warrants for the “interception of external communications”, and pursuant to section 16 of RIPA (see paragraphs 84-92 below) intercepted material could not be selected to be read, looked at or listened to, “according to a factor which is referable to an individual who is known to be for the time being in the British Islands”.", "Intelligence sharing", "20. Chapter 12 of the Interception of Communications Code of Practice (“the IC Code” – see paragraph 116 below) set out the circumstances in which the United Kingdom intelligence services could request intelligence from foreign intelligence services, and the procedures which had to be followed for making such a request. Chapter 12 was added to the IC Code after the Investigatory Powers Tribunal (“the IPT”) ordered the intelligence services to disclose their arrangements for intelligence sharing in the course of the proceedings brought by the applicants in the third of the joined cases (“the Liberty proceedings” – see paragraphs 28-60 below).", "Acquisition of communications data from CSPs", "21. Chapter II of RIPA and the accompanying Acquisition of Communications Data Code of Practice governed the process by which certain public authorities could request communications data from CSPs (see paragraphs 117-121 below).", "The United States", "22. The National Security Agency (“NSA”) acknowledged the existence of two operations called PRISM and Upstream.", "PRISM", "23. PRISM was a programme through which the United States’ Government obtained intelligence material (such as communications) from Internet Service Providers (“ISPs”). Access under PRISM was specific and targeted (as opposed to a broad “data mining” capability). The United States’ administration stated that the programme was regulated under the Foreign Intelligence Surveillance Act (“FISA”), and applications for access to material through PRISM had to be approved by the Foreign Intelligence Surveillance Court (“FISC”).", "24. Documents from the NSA leaked by Edward Snowden suggested that GCHQ had access to PRISM since July 2010 and used it to generate intelligence reports. GCHQ acknowledged that it acquired information from the United States’ which had been obtained via PRISM.", "Upstream", "25. According to the leaked documents, the Upstream programme allowed the collection of content and communications data from fibre optic cables and infrastructure owned by United States’ CSPs. This programme had broad access to global data, in particular that of non-US citizens, which could then be collected, stored and searched using keywords (for further details, see paragraphs 261-264 below).", "DOMESTIC PROCEEDINGS IN THE FIRST AND SECOND OF THE JOINED CASES", "26. The applicants in the first of the joined cases (application no. 58170/13) sent a pre-action protocol letter to the Government on 3 July 2013 setting out their complaints and seeking declarations that sections 1 and 3 of the Intelligence Services Act 1994 (“the ISA” – see paragraphs 108 and 110 below), section 1 of the Security Services Act 1989 (“the SSA” – see paragraph 106 below) and section 8 of RIPA (see paragraph 66 below) were incompatible with the Convention. In their reply of 26 July 2013, the Government stated that the effect of section 65(2) of RIPA was to exclude the jurisdiction of the High Court in respect of human rights complaints against the intelligence services, but that the applicants’ complaints could have been raised before the IPT. The IPT was a specialised Tribunal established under RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act, and it was endowed with exclusive jurisdiction to investigate any complaint that a person’s communications had been intercepted and, where interception had occurred, to examine the authority for such interception (see paragraphs 122-133 below). However, no further action was taken by these applicants.", "27. The applicants in the second of the joined cases (application no. 62322/14) did not bring any domestic proceedings as they did not believe that they had an effective remedy for their Convention complaints.", "DOMESTIC PROCEEDINGS IN THE THIRD OF THE JOINED CASES", "28. The ten human rights organisations which are the applicants in the third of the joined cases (application no. 24960/15) each lodged a complaint before the IPT between June and December 2013 (hereinafter “the Liberty proceedings”). They alleged that the intelligence services, the Home Secretary and the Foreign Secretary had acted in violation of Articles 8, 10, and 14 of the Convention by: (i) accessing or otherwise receiving intercepted communications and communications data from the United States Government under the PRISM and Upstream programmes (“the PRISM issue”); and (ii) intercepting, inspecting and retaining their communications and their communications data under the TEMPORA programme (“the section 8(4) issue”).", "29. On 14 February 2014, the IPT ordered that the ten cases be joined. It subsequently appointed Counsel to the Tribunal (see paragraph 132 below), whose function was to assist the IPT in whatever way it directed, including by making representations on issues in relation to which not all parties could be represented (for example, for reasons of national security).", "30. In their response to the applicants’ claims, the Government adopted a “neither confirm nor deny” approach, that is to say, they declined to confirm or deny whether the applicants’ communications had actually been intercepted. It was therefore agreed that the IPT would determine the legal issues on the basis of assumed facts to the effect that the NSA had obtained the applicants’ communications and communications data via PRISM or Upstream and had passed them to GCHQ, where they had been retained, stored, analysed and shared; and that the applicants’ communications and communications data had been intercepted by GCHQ under the TEMPORA programme and had been retained, stored, analysed and shared. The question was whether, on these assumed facts, the interception, retention, storage and sharing of data was compatible with Articles 8 and 10, taken alone and together with Article 14 of the Convention.", "The hearing", "31. The IPT, composed of two High Court Judges, a Circuit Judge and two senior barristers, held a five-day, public hearing from 14-18 July 2014. The Government requested an additional closed hearing in order to enable the IPT to consider GCHQ’s unpublished – described during the public hearing as “below the waterline” – internal arrangements for processing intercept material. The applicants objected, arguing that the holding of a closed hearing was not justified and that the failure to disclose the arrangements to them was unfair.", "32. The request for a closed hearing was granted pursuant to Rule 9 of the IPT’s Rules of Procedure (see paragraph 129 below). On 10 September 2014 a closed hearing took place at which the IPT was “assisted by the full, perceptive and neutral participation ... of Counsel to the Tribunal”, who performed the following roles: (i) identifying documents, parts of documents or gists that ought properly to be disclosed; (ii) making such submissions in favour of disclosure as were in the interests of the Claimants and open justice; and (iii) ensuring that all the relevant arguments (from the Claimants’ perspective) on the facts and the law were put before the IPT.", "33. In the closed hearing, the IPT examined the internal (“below the waterline”) arrangements regulating the conduct and practice of the intelligence services. On 9 October 2014 it notified the applicants that it was of the view that there was some closed material which could be disclosed. It explained that it had invited the Government to disclose the material and that the Government had agreed to do so. The material was accordingly provided to the applicants in a note (“the 9 October disclosure”) and the parties were invited to make submissions to the IPT on the disclosed material.", "34. The applicants sought information on the context and source of the disclosure but the IPT declined to provide further details. The applicants made written submissions on the disclosure.", "35. The respondents subsequently amended and amplified the disclosed material.", "36. Following final disclosures made on 12 November 2014, the 9 October disclosure provided as follows:", "“The US Government has publicly acknowledged that the Prism system and Upstream programme ... permit the acquisition of communications to, from, or about specific tasked selectors associated with non-US persons who are reasonably believed to be located outside the United States in order to acquire foreign intelligence information. To the extent that the Intelligence Services are permitted by the US Government to make requests for material obtained under the Prism system (and/or ... pursuant to the Upstream programme), those requests may only be made for unanalysed intercepted communications (and associated communications data) acquired in this way.", "1. A request may only be made by the Intelligence Services to the government of a country or territory outside the United Kingdom for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual legal assistance agreement, if either:", "a relevant interception warrant under [RIPA] has already been issued by the Secretary of State, the assistance of the foreign government is necessary to obtain the communications at issue because they cannot be obtained under the relevant RIPA interception warrant and it is necessary and proportionate for the Intelligence Services to obtain those communications; or", "making the request for the communications at issue in the absence of a relevant RIPA interception warrant does not amount to a deliberate circumvention of RIPA or otherwise contravene the principle established in Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 [that a public body is required to exercise its discretionary powers to promote (and not to circumvent) the policy and the objects of the legislation which created those powers] (for example, because it is not technically feasible to obtain the communications via RIPA interception), and it is necessary and proportionate for the Intelligence Services to obtain those communications. In these circumstances, the question whether the request should be made would be considered and decided upon by the Secretary of State personally. Any such request would only be made in exceptional circumstances, and has not occurred as at the date of this statement.", "...", "2. Where the Intelligence Services receive intercepted communications content or communications data from the government of a country or territory outside the United Kingdom, irrespective of whether it is/they are solicited or unsolicited, whether the content is analysed or unanalysed, or whether or not the communications data are associated with the content of communications, the communications content and data are, pursuant to internal ‘arrangements’, subject to the same internal rules and safeguards as the same categories of content or data, when they are obtained directly by the Intelligence Services as a result of interception under RIPA.", "3. Those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant have internal ‘arrangements’ that require a record to be created, explaining why access to the unanalysed intercepted material is required, before an authorised person is able to access such material pursuant to s.16 of RIPA.", "4. The internal ‘arrangements’ of those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s.8(4) warrant specify (or require to be determined, on a system-by-system basis) maximum retention periods for different categories of such data which reflect the nature and intrusiveness of the particular data at issue. The periods so specified (or determined) are normally no longer than 2 years, and in certain cases are significantly shorter (intelligence reports that draw on such data are treated as a separate category, and are retained for longer). Data may only be retained for longer than the applicable maximum retention period where prior authorisation has been obtained from a senior official within the particular Intelligence Service at issue on the basis that continued retention of the particular data at issue has been assessed to be necessary and proportionate (if the continued retention of any such data is thereafter assessed no longer to meet the tests of necessity and proportionality, such data are deleted). As far as possible, all retention periods are implemented by a process of automated deletion which is triggered once the applicable maximum retention period has been reached for the data at issue. The maximum retention periods are overseen by, and agreed with the Commissioner. As regards related communications data in particular, Sir Anthony May made a recommendation to those of the Intelligence Services that receive unanalysed intercepted material and related communications data from interception under a s8(4) warrant, and the interim Commissioner (Sir Paul Kennedy) has recently expressed himself to be content with the implementation of that recommendation.", "5. The Intelligence Services’ internal ‘arrangements’ under [the Security Services Act 1989], [the Intelligence Services Act 1994] and ss.15-16 of RIPA are periodically reviewed to ensure that they remain up-to-date and effective. Further, the Intelligence Services are henceforth content to consider, during the course of such periodic reviews, whether more of those internal arrangements might safely and usefully be put into the public domain (for example, by way of inclusion in a relevant statutory Code of Practice).”", "The IPT’s first judgment of 5 December 2014", "37. The IPT issued its first judgment on 5 December 2014. The judgment addressed the arrangements then in place for intercepting communications and receiving communications intercepted by foreign intelligence services.", "The PRISM issue", "38. The IPT accepted that the PRISM issue engaged Article 8 of the Convention, albeit at a “lower level” than the regime under consideration in Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI. As a consequence, the authorities involved in processing communications received from foreign intelligence services had to comply with the requirements of Article 8, particularly in relation to their storage, sharing, retention and destruction. In the IPT’s view, following Bykov v. Russia [GC], no. 4378/02, §§ 76 and 78, 10 March 2009 and Malone v. the United Kingdom, 2 August 1984, Series A no. 82, in order for the interference to be considered “in accordance with the law”, there could not be unfettered discretion for executive action; rather, the nature of the rules had to be clear and the ambit of the rules had – in so far as possible – to be in the public domain. However, it considered it plain that in the field of national security, much less was required to be put in the public domain and the degree of foreseeability required by Article 8 had to be reduced, otherwise the whole purpose of the steps taken to protect national security would be at risk (citing Leander v. Sweden, 26 March 1987, § 51, Series A no. 116).", "39. The IPT continued:", "“41. We consider that what is required is a sufficient signposting of the rules or arrangements insofar as they are not disclosed ... We are satisfied that in the field of intelligence sharing it is not to be expected that rules need to be contained in statute ( Weber ) or even in a code (as was required by virtue of the Court’s conclusion in Liberty v. [the United Kingdom, no. 58243/00, 1 July 2008]). It is in our judgment sufficient that:", "i) Appropriate rules or arrangements exist and are publicly known and confirmed to exist, with their content sufficiently signposted, such as to give an adequate indication of it (as per Malone ...).", "ii) They are subject to proper oversight.”", "40. The IPT noted that arrangements for information sharing were provided for in the statutory framework set out in the Security Service Act 1989 (see paragraphs 105-106 below) and the Intelligence Services Act 1994 (see paragraphs 107-110 below). It further referred to a witness statement made in the above-mentioned Liberty proceedings by Charles Farr, the Director-General of the Office for Security and Counter Terrorism (“OSCT”) at the Home Office, which explained that the statutory framework set out in those Acts was underpinned by detailed internal guidance, including arrangements for securing that the services only obtained the information necessary for the proper discharge of their functions. He further indicated that staff received mandatory training on the legal and policy framework in which they operated, including clear instructions on the need for strict adherence to the law and internal guidance. Finally, he stated that the full details of the arrangements were confidential since they could not be published safely without undermining the interests of national security.", "41. The IPT acknowledged that as the arrangements were not made known to the public, even in summary form, they were not accessible. However, the IPT considered it significant that the arrangements were subject to oversight and investigation by the Intelligence and Security Committee of Parliament (“the ISC”) and the independent Interception of Communications Commissioner (“the IC Commissioner”). Furthermore, it itself was in a position to provide oversight, having access to all secret information, and being able to adjourn into closed hearing to assess whether the arrangements referred to by Mr Farr existed and were capable of giving the individual protection against arbitrary interference.", "42. Having considered the “below the waterline” arrangements, the IPT was satisfied that the 9 October disclosure (as subsequently amended – see paragraphs 33 and 36 above) provided a clear and accurate summary of that part of the evidence given in the closed hearing, and that the rest of the evidence given in closed hearing was too sensitive for disclosure without risk to national security or to the “neither confirm nor deny” principle. It was further satisfied that the preconditions for requesting information from the Government of the United States of America were clear: there had to exist either a section 8(1) warrant, or a section 8(4) warrant within whose ambit the proposed target’s communications fell, together, if the individual was known to be in the British Islands, with a section 16(3) modification (see paragraph 86 below). Any request pursuant to PRISM or Upstream in respect of intercept or communications data was therefore subject to the RIPA regime, unless it fell within the wholly exceptional scenario outlined in 1(b) of the material disclosed after the first hearing. However, a 1(b) request had never occurred.", "43. The IPT nevertheless identified the following “matter of concern”:", "“Although it is the case that any request for, or receipt of, intercept or communications data pursuant to Prism and/or Upstream is ordinarily subject to the same safeguards as in a case where intercept or communication data are obtained directly by the Respondents, if there were a 1(b) request, albeit that such request must go to the Secretary of State, and that any material so obtained must be dealt with pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As already indicated, no 1(b) request has in fact ever occurred, and there has thus been no problem hitherto. We are however satisfied that there ought to be introduced a procedure whereby any such request, if it be made, when referred to the Secretary of State, must address the issue of s.16(3).”", "44. However, subject to this caveat, the IPT reached the following conclusions:", "“(i) Having considered the arrangements below the waterline, as described in this judgment, we are satisfied that there are adequate arrangements in place for the purpose of ensuring compliance with the statutory framework and with Articles 8 and 10 of the Convention, so far as the receipt of intercept from Prism and/or Upstream is concerned.", "(ii) This is of course of itself not sufficient, because the arrangements must be sufficiently accessible to the public. We are satisfied that they are sufficiently signposted by virtue of the statutory framework to which we have referred and the Statements of the ISC and the Commissioner quoted above, and as now, after the two closed hearings that we have held, publicly disclosed by the Respondents and recorded in this judgment.", "(iii) These arrangements are subject to oversight.", "(iv) The scope of the discretion conferred on the Respondents to receive and handle intercepted material and communications data and (subject to the s.8(4) issues referred to below) the manner of its exercise, are accordingly (and consistent with Bykov - see paragraph 37 above) accessible with sufficient clarity to give the individual adequate protection against arbitrary interference.”", "45. Finally, the IPT addressed an argument raised by Amnesty International only; namely, that the United Kingdom owed a positive obligation under Article 8 of the Convention to prevent or forestall the United States from intercepting communications, including an obligation not to acquiesce in such interception by receiving its product. However, the IPT, citing M. and Others v. Italy and Bulgaria, no. 40020/03, § 127, 31 July 2012, noted that “the Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant’s complaints under international law, or otherwise to intervene with the authorities of another State on his or her behalf”. The IPT therefore rejected this submission.", "The section 8(4) issue", "46. The IPT formulated four questions to be decided in order to determine whether the section 8(4) regime (which provided the legal framework for the bulk interception of external communications) was compatible with the Convention:", "“(1) Is the difficulty of determining the difference between external and internal communications ... such as to cause the s.8(4) regime not to be in accordance with law contrary to Article 8(2)?", "(2) Insofar as s.16 of RIPA is required as a safeguard in order to render the interference with Article 8 in accordance with law, is it a sufficient one?", "(3) Is the regime, whether with or without s.16, sufficiently compliant with the Weber requirements, insofar as such is necessary in order to be in accordance with law?", "(4) Is s.16(2) indirectly discriminatory contrary to Article 14 of the Convention, and, if so, can it be justified?”", "47. In relation to the first question, the applicants had contended that following the “sea-change in technology since 2000”, substantially more communications were now external, and as a result the internal/external distinction in section 8(4) was no longer “fit for purpose”. While the IPT accepted that the changes in technology had been substantial, and that it was impossible to differentiate at interception stage between external and internal communications, it found that the differences in view as to the precise definition of “external communications” did not per se render the section 8(4) regime incompatible with Article 8 § 2. In this regard, it considered that the difficulty in distinguishing between “internal” and “external” communications had existed since the enactment of RIPA and the changes in technology had not materially added to the quantity or proportion of communications which could or could not be differentiated as being external or internal at the time of interception. At worst, they had “accelerated the process of more things in the world on a true analysis being external than internal”. In any case the distinction was only relevant at interception stage. The “heavy lifting” was done by section 16 of RIPA, which prevented intercepted material being selected to be read, looked at or listened to “according to a factor which is referable to an individual who is known to be for the time being in the British Islands” (see paragraphs 84-92 below). Furthermore, all communications intercepted under a section 8(4) warrant could only be considered for examination by reference to that section.", "48. In respect of the second question, the IPT held that the section 16 safeguards, which applied only to intercept material and not to related communications data, were sufficient. Although it concluded that the Weber criteria also extended to communications data, it considered that there was adequate protection or safeguards by reference to section 15 of RIPA (see paragraphs 77-82 below). In addition, in so far as section 16 offered greater protection for communications content than for communications data, the difference was justified and proportionate because communications data were necessary to identify individuals whose intercepted material was protected by section 16 (that is, individuals known to be in the British Islands).", "49. Turning to the third question, the IPT concluded that the section 8(4) regime was sufficiently compliant with the Weber criteria (being the criteria set out in Weber and Saravia, cited above, § 95; see also paragraphs 274 and 335 below) and was in any event “in accordance with the law”. With regard to the first and second requirements, it considered that the reference to “national security” was sufficiently clear (citing Esbester v. the United Kingdom (dec.), no. 18601/91, 2 April 1993 and Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010); the absence of targeting at the interception stage was acceptable and inevitable, as it had been in Weber; on their face, the provisions of paragraph 5.2 of the IC Code, together with paragraphs 2.4, 2.5, 5.3, 5.4, 5.5 and 5.6 (see paragraph 96 below), were satisfactory; there was no call for search words to be included in an application for a warrant or in the warrant itself, as this would unnecessarily undermine and limit the operation of the warrant and might in any event be entirely unrealistic; and there was no requirement for the warrant to be judicially authorised.", "50. In considering the third, fourth, fifth and sixth of the Weber criteria, the IPT had regard to the safeguards in sections 15 and 16 of RIPA, the IC Code, and the “below the waterline” arrangements. It did not consider it necessary that the precise details of all the safeguards should be published or contained in either statute or code of practice. Particularly in the field of national security, undisclosed administrative arrangements, which by definition could be changed by the executive without reference to Parliament, could be taken into account, provided that what was disclosed indicated the scope of the discretion and the manner of its exercise. This was particularly so when, as was the case here, the IC Code referred to the arrangements, and there was a system of oversight (being the IC Commissioner, the IPT itself, and the ISC) which ensured that these arrangements were kept under review. The IPT was satisfied that, as a result of what it had heard at the closed hearing, there was no large databank of communications data being built up and there were adequate arrangements in respect of the duration of the retention of data and their destruction. As with the PRISM issue, the IPT considered that the section 8(4) arrangements were sufficiently signposted in statute, in the IC Code, in the IC Commissioner’s reports and, now, in its own judgment.", "51. As regards the fourth and final question, the IPT did not make any finding as to whether there was in fact indirect discrimination on grounds of national origin as a result of the different regimes applicable to individuals located in the British Islands and those located outside, since it considered that any indirect discrimination was sufficiently justified on the grounds that it was harder to investigate terrorist and criminal threats from abroad. Given that the purpose of accessing external communications was primarily to obtain information relating to those abroad, the consequence of eliminating the distinction would be the need to obtain a certificate under section 16(3) of RIPA (which exceptionally allowed access to material concerning persons within the British Islands intercepted under a section 8(4) warrant – see paragraph 86 below) in almost every case, which would radically undermine the efficacy of the section 8(4) regime.", "52. Finally, the applicants had argued that the protection afforded by Article 10 of the Convention applied to investigatory NGOs in the same way it applied to journalists. Amnesty International initially alleged before the IPT that there were likely to be no adequate arrangements for material protected by legal professional privilege, a complaint which was subsequently “hived off” to be dealt with in the Belhadj case (see paragraphs 99-101 below), to which Amnesty International was joined as an additional claimant. No similar argument was made in respect of NGO confidence until 17 November 2014 (after the first and second open hearings). As the IPT considered that this argument could have been raised at any time, in its judgment it had been raised “far too late” to be incorporated into the ambit of the proceedings.", "53. With regard to the remaining Article 10 complaints, the IPT noted that there was no separate argument over and above that arising in respect of Article 8. Although the IPT had regard to Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010, it emphasised that the applicants’ case did not concern targeted surveillance of journalists or non-governmental organisations. In any case, in its view, in the context of untargeted monitoring via a section 8(4) warrant, it would be “clearly impossible” to anticipate a judicial pre-authorisation prior to the warrant limited to what might turn out to impact upon Article 10. Although the IPT accepted that an issue might arise in the event that, in the course of examination of the contents, some question of journalistic confidence arose, there were additional safeguards in the IC Code in relation to treatment of such material.", "54. Following the publication of the judgment, the parties were invited to make submissions on whether, prior to the disclosures made to the IPT, the legal regime in place in respect of the PRISM issue complied with Articles 8 and 10, and on the proportionality and lawfulness of any alleged interception of their communications. The IPT did not see any need for further submissions on the proportionality of the section 8(4) regime as a whole.", "The IPT’s second judgment of 6 February 2015", "55. In its second judgment of 6 February 2015, the IPT considered whether, prior to its December 2014 judgment, the PRISM or Upstream arrangements breached Article 8 and/or 10 of the Convention.", "56. It agreed that it was only by reference to the 9 October disclosure as amended (see paragraphs 33 and 36 above) that it was satisfied the regime was “in accordance with the law”. The IPT was of the view that without the disclosures made, there would not have been adequate signposting, as was required under Articles 8 and 10. It therefore made a declaration that prior to the disclosures:", "“23. ... [T]he regime governing the soliciting, receiving, storing and transmitting by UK authorities of private communications of individuals located in the UK, which have been obtained by US authorities pursuant to Prism and/or ... Upstream, contravened Articles 8 or 10 ECHR, but now complies.”", "The IPT’s third judgment of 22 June 2015 as amended by its letter of 1 July 2015", "57. The third judgment of the IPT, published on 22 June 2015, determined whether the applicants’ communications obtained under PRISM or Upstream had been solicited, received, stored or transmitted by the United Kingdom authorities in contravention of Articles 8 and/or 10 of the Convention; and whether the applicants’ communications had been intercepted, viewed, stored or transmitted by the United Kingdom authorities so as to amount to unlawful conduct or in contravention of Articles 8 and/or 10.", "58. The IPT made no determination in favour of eight of the ten applicants. In line with its usual practice where it did not find in favour of a claimant, it did not confirm whether or not their communications had been intercepted. However, the IPT made determinations in relation to two applicants. The identity of one of the organisations was wrongly noted in the judgment and the error was corrected by the IPT’s letter of 1 July 2015.", "59. In respect of Amnesty International, the IPT found that email communications had been lawfully and proportionately intercepted and accessed pursuant to section 8(4) of RIPA but that the time-limit for retention permitted under the internal policies of GCHQ had been overlooked and the material had therefore been retained for longer than permitted. However, the IPT was satisfied that the material had not been accessed after the expiry of the relevant retention time-limit and that the breach could be characterised as a technical one. It amounted nonetheless to a breach of Article 8 and GCHQ was ordered to destroy any of the communications which had been retained for longer than the relevant period and to deliver one hard copy of the documents within seven days to the IC Commissioner to retain for five years in case they were needed for any further legal proceedings. GCHQ was also ordered to provide a closed report within fourteen days confirming the destruction of the documents. No award of compensation was made.", "60. In respect of the Legal Resources Centre, the IPT found that communications from an email address associated with the applicant had been intercepted and selected for examination under a section 8(4) warrant. Although it was satisfied the interception was lawful and proportionate and that selection for examination was proportionate, the IPT found that the internal procedure for selection had not been followed. There had therefore been a breach of the Legal Resources Centre’s Article 8 rights. However, the IPT was satisfied that no use was made of the material and that no record had been retained so the applicant had not suffered material detriment, damage or prejudice. Its determination therefore constituted just satisfaction and no compensation was awarded." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "RELEVANT DOMESTIC LAWThe interception of communicationsWarrants: general", "The interception of communicationsWarrants: general", "Warrants: general", "The interception of communicationsWarrants: general", "Warrants: general", "Warrants: general", "61. Section 1(1) of RIPA 2000 (which has now been replaced by the Investigatory Powers Act 2016) rendered unlawful the interception of any communication in the course of its transmission by means of a public postal service or a public telecommunication system unless it took place in accordance with a warrant under section 5 (“intercept warrant”).", "62. Section 5(2) allowed the Secretary of State to authorise an intercept warrant if he or she believed that it was necessary for the reasons set out in section 5(3), namely that it was in the interests of national security, for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the United Kingdom (so far as those interests are also relevant to the interests of national security – see paragraphs 3.5 and 6.11 of the IC Code at paragraph 96 below); and that the conduct authorised by the warrant was proportionate to what was sought to be achieved by that conduct. In assessing necessity and proportionality, account had to be taken of whether the information sought under the warrant could reasonably have been obtained by other means.", "63. Section 81(2)(b) of RIPA defined “serious crime” as crime which satisfied one of the following criteria:", "“(a) that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;", "(b) that the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose.”", "64. Section 81(5) provided:", "“For the purposes of this Act detecting crime shall be taken to include–", "(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and", "(b) the apprehension of the person by whom any crime was committed;", "and any reference in this Act to preventing or detecting serious crime shall be construed accordingly ...”", "65. Section 6 provided that in respect of the intelligence services, only the Director General of MI5, the Chief of MI6 and the Director of GCHQ could have applied for an intercept warrant.", "66. There were two types of intercept warrant to which sections 5 and 6 applied: a targeted warrant as provided for by section 8(1), and an untargeted warrant as provided for by section 8(4).", "67. By virtue of section 9 of RIPA, a warrant issued in the interests of national security or for safeguarding the economic well-being of the United Kingdom ceased to have effect at the end of six months, and a warrant issued for the purpose of detecting serious crime ceased to have effect after three months. At any time before the end of those periods, the Secretary of State was able to renew the warrant (for periods of six and three months respectively) if he or she believed that the warrant continued to be necessary on grounds falling within section 5(3). The Secretary of State was required to cancel an interception warrant if he or she was satisfied that the warrant was no longer necessary on grounds falling within section 5(3).", "68. Pursuant to section 5(6), the conduct authorised by an interception warrant had to be taken to include the interception of communications not identified by the warrant if necessary to do what was expressly authorised or required by the warrant; and the obtaining of related communications data.", "69. Section 21(4) defined “communications data” as", "(a) any traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunication system by means of which it is being or may be transmitted;", "(b) any information which includes none of the contents of a communication (apart from any information falling within paragraph (a)) and is about the use made by any person—", "of any postal service or telecommunications service; or", "in connection with the provision to or use by any person of any telecommunications service, of any part of a telecommunication system;", "(c) any information not falling within paragraph (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service.”", "70. The March 2015 Acquisition and Disclosure of Communications Data Code of Practice referred to these three categories as “traffic data”, “service use information”, and “subscriber information”. Section 21(6) of RIPA further defined “traffic data” as data which identified the person, apparatus, location or address to or from which a communication was transmitted, and information about a computer file or program accessed or run in the course of sending or receiving a communication.", "71. According to section 20 of RIPA, “related communications data”, in relation to a communication intercepted in the course of its transmission by means of a postal service or telecommunication system, meant “so much of any communications data as was obtained by, or in connection with, the interception”; and related “to the communication or to the sender or recipient, or intended recipient, of the communication”.", "Warrants: section 8(4)", "(a) Authorisation", "72. “Bulk interception” of communications was carried out pursuant to a section 8(4) warrant. Section 8(4) and (5) of RIPA allowed the Secretary of State to issue a warrant for “the interception of external communications in the course of their transmission by means of a telecommunication system”.", "73. At the time of issuing a section 8(4) warrant, the Secretary of State was also required to issue a certificate setting out a description of the intercepted material which he or she considered it necessary to examine, and stating that he or she considered the examination of that material to be necessary for the reasons set out in section 5(3) (that is, that it was necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for safeguarding the economic well-being of the United Kingdom – so far as those interests are also relevant to the interests of national security; see s. 3.5 and 6.11 of the IC Code at paragraph 96 below).", "(b) “External” communications", "74. Section 20 defined “external communication” as “a communication sent or received outside the British Islands”.", "75. In the course of the Liberty proceedings, Charles Farr, the Director General of the OSCT, indicated that two people in the United Kingdom who emailed each other were engaging in “internal communication” even if the email service was housed on a server in the United States of America; however, that communication could nevertheless be intercepted as a “by ‑ catch” of a warrant targeting external communications. On the other hand, a person in the United Kingdom who communicated with a search engine overseas was engaging in an external communication, as was a person in the United Kingdom who posted a public message (such as a tweet or Facebook status update), unless all the recipients of that message were in the British Islands.", "76. Giving evidence to the ISC in October 2014, the Secretary of State for the Foreign and Commonwealth considered that:", "“In terms of an email, if one or both of the sender or recipient is overseas then this would be an external communication.", "In terms of browsing the Internet, if an individual reads the Washington Post’s website, then they have ‘communicated’ with a web server located overseas, and that is therefore an external communication.", "In terms of social media, if an individual posts something on Facebook, because the web server is based overseas, this would be treated as an external communication.", "In terms of cloud storage (for example, files uploaded to Dropbox), these would be treated as external communications, because they have been sent to a web server overseas.”", "Specific safeguards under RIPA", "(a) Section 15", "77. Pursuant to Section 15(1), it was the duty of the Secretary of State to ensure, in relation to all interception warrants, that such arrangements were in force as he or she considered necessary for securing that the requirements of subsections (2) and (3) were satisfied in relation to the intercepted material and any related communications data; and, in the case of warrants in relation to which there were section 8(4) certificates, that the requirements of section 16 were also satisfied.", "78. Section 15(2) provided:", "“The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following–", "the number of persons to whom any of the material or data is disclosed or otherwise made available,", "the extent to which any of the material or data is disclosed or otherwise made available,", "the extent to which any of the material or data is copied, and", "the number of copies that are made,", "is limited to the minimum that is necessary for the authorised purposes.”", "79. Section 15(3) provided:", "“The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data (if not destroyed earlier) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes.”", "80. Pursuant to section 15(4), something was necessary for the authorised purposes if, and only if, it continued to be, or was likely to become, necessary as mentioned in section 5(3) of the Act (that is, it was necessary in the interests of national security, for the purpose of preventing or detecting serious crime; for the purpose of safeguarding the economic well-being of the United Kingdom (so far as those interests are also relevant to the interests of national security – see paragraphs 3.5 and 6.11 of the IC Code at paragraph 96 below); or for the purpose of giving effect to the provisions of any international mutual assistance agreement); it was necessary for facilitating the carrying out of any of the interception functions of the Secretary of State; it was necessary for facilitating the carrying out of any functions of the IC Commissioner or of the IPT; it was necessary to ensure that a person conducting a criminal prosecution had the information needed to determine what was required by his or her duty to secure the fairness of the prosecution; or it was necessary for the performance of any duty imposed on any person under public records legislation.", "81. Section 15(5) required the arrangements in place to secure compliance with section 15(2) to include such arrangements as the Secretary of State considered necessary for securing that every copy of the material or data that was made was stored, for so long as it was retained, in a secure manner.", "82. Pursuant to section 15(6), the arrangements to which section 15(1) referred were not necessary to secure that the requirements of section 15(2) and (3) were satisfied in so far as they related to any of the intercepted material or related communications data, or any copy of any such material or data, possession of which had been surrendered to any authorities of a country or territory outside the United Kingdom. However, such arrangements were required to secure, in the case of every such warrant, that possession of the intercepted material and data and of copies of the material or data were surrendered to authorities of a country or territory outside the United Kingdom only if the requirements of section 15(7) were satisfied. Section 15(7) provided:", "“The requirements of this subsection are satisfied in the case of a warrant if it appears to the Secretary of State–", "that requirements corresponding to those of subsections (2) and (3) will apply, to such extent (if any) as the Secretary of State thinks fit, in relation to any of the intercepted material or related communications data possession of which, or of any copy of which, is surrendered to the authorities in question; and", "that restrictions are in force which would prevent, to such extent (if any) as the Secretary of State thinks fit, the doing of anything in, for the purposes of or in connection with any proceedings outside the United Kingdom which would result in such a disclosure as, by virtue of section 17, could not be made in the United Kingdom.”", "83. Section 17 of RIPA provided that as a general rule no evidence could be adduced, disclosure made or other thing done in connection with legal proceedings which would disclose the content or related communications data of an intercepted communication.", "(b) Section 16", "84. Section 16 set out additional safeguards in relation to the interception of “external” communications under section 8(4) warrants. Section 16(1) required that intercepted material could only be read, looked at or listened to by the persons to whom it became available by virtue of the warrant if and to the extent that it had been certified as material the examination of which was necessary as mentioned in section 5(3) of the Act; and fell within section 16(2). Section 20 defined “intercepted material” as the contents of any communications intercepted by an interception to which the warrant related.", "85. Section 16(2) provided:", "“Subject to subsections (3) and (4), intercepted material falls within this subsection so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which–", "is referable to an individual who is known to be for the time being in the British Islands; and", "has as its purpose, or one of its purposes, the identification of material contained in communications sent by him, or intended for him.”", "86. Pursuant to section 16(3), intercepted material fell within section 16(2), notwithstanding that it was selected by reference to one of the factors mentioned in that subsection, if it was certified by the Secretary of State for the purposes of section 8(4) that the examination of material selected according to factors referable to the individual in question was necessary as mentioned in subsection 5(3) of the Act; and the material related only to communications sent during a period specified in the certificate that was no longer than the permitted maximum.", "87. The “permitted maximum” was defined in section 16(3A) as follows:", "(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, six months; and", "(b) in any other case, three months.”", "88. Pursuant to section 16(4), intercepted material also fell within section 16(2), even if it was selected by reference to one of the factors mentioned in that subsection, if the person to whom the warrant was addressed believed, on reasonable grounds, that the circumstances were such that the material would fall within that subsection; or the conditions set out in section 16(5) were satisfied in relation to the selection of the material.", "89. Section 16(5) provided:", "“Those conditions are satisfied in relation to the selection of intercepted material if –", "(a) it has appeared to the person to whom the warrant is addressed that there has been such a relevant change of circumstances as, but for subsection (4)(b), would prevent the intercepted material from falling within subsection (2);", "(b) since it first so appeared, a written authorisation to read, look at or listen to the material has been given by a senior official; and", "(c) the selection is made before the end of the permitted period.”", "90. Pursuant to section 16(5A), the “permitted period” meant:", "“(a) in the case of material the examination of which is certified for the purposes of section 8(4) as necessary in the interests of national security, the period ending with the end of the fifth working day after it first appeared as mentioned in subsection (5)(a) to the person to whom the warrant is addressed; and", "(b) in any other case, the period ending with the end of the first working day after it first so appeared to that person.”", "91. Section 16(6) explained that a “relevant change of circumstances” meant that it appeared that either the individual in question had entered the British Islands; or that a belief by the person to whom the warrant was addressed in the individual’s presence outside the British Islands was in fact mistaken.", "92. Giving evidence to the ISC in October 2014, the Secretary of State for Foreign and Commonwealth Affairs explained that:", "“When an analyst selects communications that have been intercepted under the authority of an 8(4) warrant for examination, it does not matter what form of communication an individual uses, or whether his other communications are stored on a dedicated mail server or in cloud storage physically located in the UK, the US or anywhere else (and in practice the individual user of cloud services will not know where it is stored). If he or she is known to be in the British Islands it is not permissible to search for his or her communications by use of his or her name, e-mail address or any other personal identifier.”", "The Interception of Communications Code of Practice", "93. Section 71 of RIPA provided for the adoption of codes of practice by the Secretary of State in relation to the exercise and performance of his or her powers and duties under the Act. Draft codes of practice had to be laid before Parliament and were public documents. They could only enter into force in accordance with an order of the Secretary of State. The Secretary of State could only make such an order if a draft of the order had been laid before Parliament and approved by a resolution of each House.", "94. Under section 72(1) of RIPA, a person exercising or performing any power or duty relating to interception of communications had to have regard to the relevant provisions of a code of practice. The provisions of a code of practice could, in appropriate circumstances, be taken into account by courts and tribunals under section 72(4) of RIPA.", "95. The IC Code was issued pursuant to section 71 of RIPA. The IC Code in force at the relevant time was issued in 2016.", "96. In so far as relevant, that IC Code provided:", "“3.2. There are a limited number of persons who can make an application for an interception warrant, or an application can be made on their behalf. These are:", "3.3. Any application made on behalf of one of the above must be made by a person holding office under the Crown.", "3.4. All interception warrants are issued by the Secretary of State. Even where the urgency procedure is followed, the Secretary of State personally authorises the warrant, although it is signed by a senior official.", "Necessity and proportionality", "3.5. Obtaining a warrant under RIPA will only ensure that the interception authorised is a justifiable interference with an individual’s rights under Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) if it is necessary and proportionate for the interception to take place. RIPA recognises this by first requiring that the Secretary of State believes that the authorisation is necessary for one or more of the following statutory grounds:", "3.6. These purposes are set out in section 5(3) of RIPA. The Secretary of State must also believe that the interception is proportionate to what is sought to be achieved by that conduct. Any assessment of proportionality involves balancing the seriousness of the intrusion into the privacy or property of the subject of the operation (or any other person who may be affected) against the need for the activity in investigative, operational or capability terms. The warrant will not be proportionate if it is excessive in the overall circumstances of the case. Each action authorised should bring an expected benefit to the investigation or operation and should not be disproportionate or arbitrary. The fact that there is a potential threat to national security (for example) may not alone render the most intrusive actions proportionate. No interference should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.", "3. GENERAL RULES ON INTERCEPTION WITH A WARRANT", "...", "3.7. The following elements of proportionality should therefore be considered:", "...", "Duration of interception warrants", "3.18. Interception warrants issued on serious crime grounds are valid for an initial period of three months. Interception warrants issued on national security/economic well-being of the UK grounds are valid for an initial period of six months. A warrant issued under the urgency procedure (on any grounds) is valid for five working days following the date of issue unless renewed by the Secretary of State.", "3.19. Upon renewal, warrants issued on serious crime grounds are valid for a further period of three months. Warrants renewed on national security/economic well ‑ being of the UK grounds are valid for a further period of six months. These dates run from the date on the renewal instrument.", "3.20. Where modifications to an interception warrant are made, the warrant expiry date remains unchanged. However, where the modification takes place under the urgency provisions, the modification instrument expires after five working days following the date of issue, unless it is renewed in line with the routine procedure.", "3.21. Where a change in circumstance leads the intercepting agency to consider it no longer necessary, proportionate or practicable for a warrant to be in force, the agency must make a recommendation to the Secretary of State that it should be cancelled with immediate effect.", "...", "4. SPECIAL RULES ON INTERCEPTION WITH A WARRANT", "Collateral intrusion", "4.1. Consideration should be given to any interference with the privacy of individuals who are not the subject of the intended interception, especially where communications relating to religious, medical, journalistic or legally privileged material may be involved, or where communications between a Member of Parliament and another person on constituency business may be involved or communications between a Member of Parliament and a whistle-blower. An application for an interception warrant should state whether the interception is likely to give rise to a degree of collateral infringement of privacy. A person applying for an interception warrant must also consider measures, including the use of automated systems, to reduce the extent of collateral intrusion. Where it is possible to do so, the application should specify those measures. These circumstances and measures will be taken into account by the Secretary of State when considering a warrant application made under section 8(1) of RIPA. Should an interception operation reach the point where individuals other than the subject of the authorisation are identified as investigative targets in their own right, consideration should be given to applying for separate warrants covering those individuals.", "Confidential information", "4.2. Particular consideration should also be given in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved. This includes where the communications relate to legally privileged material; where confidential journalistic material may be involved; where interception might involve communications between a medical professional or Minister of Religion and an individual relating to the latter’s health or spiritual welfare; or where communications between a Member of Parliament and another person on constituency business may be involved.", "4.3. Confidential journalistic material includes material acquired or created for the purposes of journalism and held subject to an undertaking to hold it in confidence, as well as communications resulting in information being acquired for the purposes of journalism and held subject to such an undertaking. See also paragraphs 4.26 and 4.28 – 4.31 for additional safeguards that should be applied in respect of confidential journalistic material.", "...", "Communications involving confidential journalistic material, confidential personal information and communications between a Member of Parliament and another person on constituency business", "4.26. Particular consideration must also be given to the interception of communications that involve confidential journalistic material, confidential personal information, or communications between a Member of Parliament and another person on constituency business. Confidential journalistic material is explained at paragraph 4.3. Confidential personal information is information held in confidence concerning an individual (whether living or dead) who can be identified from it, and the material in question relates to his or her physical or mental health or to spiritual counselling. Such information can include both oral and written communications. Such information as described above is held in confidence if it is held subject to an express or implied undertaking to hold it in confidence, or is subject to a restriction on disclosure or an obligation of confidentiality contained in existing legislation. For example, confidential personal information might include consultations between a health professional and a patient, or information from a patient’s medical records.", "...", "4.28. Where the intention is to acquire confidential personal information, the reasons should be clearly documented and the specific necessity and proportionality of doing so should be carefully considered. If the acquisition of confidential personal information is likely but not intended, any possible mitigation steps should be considered and, if none is available, consideration should be given to whether special handling arrangements are required within the intercepting agency.", "4.29. Material which has been identified as confidential information should be retained only where it is necessary and proportionate to do so for one or more of the authorised purposes set out in section 15(4). It must be securely destroyed when its retention is no longer needed for those purposes. If such information is retained, there must be adequate information management systems in place to ensure that continued retention remains necessary and proportionate for the authorised statutory purposes.", "4.30. Where confidential information is retained or disseminated to an outside body, reasonable steps should be taken to mark the information as confidential. Where there is any doubt as to the lawfulness of the proposed handling or dissemination of confidential information, advice should be sought from a legal adviser within the relevant intercepting agency and before any further dissemination of the material takes place.", "4.31. Any case where confidential information is retained should be notified to the Interception of Communications Commissioner as soon as reasonably practicable, as agreed with the Commissioner. Any material which has been retained should be made available to the Commissioner on request.", "4.32. The safeguards set out in paragraphs 4.28 – 4.31 also apply to any section 8(4) material (see chapter 6) which is selected for examination and which constitutes confidential information.", "...", "6. INTERCEPTION WARRANTS (SECTION 8(4))", "6.1. This section applies to the interception of external communications by means of a warrant complying with section 8(4) of RIPA.", "6.2. In contrast to section 8(1), a section 8(4) warrant instrument need not name or describe the interception subject or a set of premises in relation to which the interception is to take place. Neither does section 8(4) impose an express limit on the number of external communications which may be intercepted. For example, if the requirements of sections 8(4) and (5) are met, then the interception of all communications transmitted on a particular route or cable, or carried by a particular CSP, could, in principle, be lawfully authorised. This reflects the fact that section 8(4) interception is an intelligence gathering capability, whereas section 8(1) interception is primarily an investigative tool that is used once a particular subject for interception has been identified.", "6.3. Responsibility for the issuing of interception warrants under section 8(4) of RIPA rests with the Secretary of State. When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate. The certificate ensures that a selection process is applied to the intercepted material so that only material described in the certificate is made available for human examination. If the intercepted material cannot be selected to be read, looked at or listened to with due regard to proportionality and the terms of the certificate, then it cannot be read, looked at or listened to by anyone.", "Section 8(4) interception in practice", "6.4. A section 8(4) warrant authorises the interception of external communications. Where a section 8(4) warrant results in the acquisition of large volumes of communications, the intercepting agency will ordinarily apply a filtering process to automatically discard communications that are unlikely to be of intelligence value. Authorised persons within the intercepting agency may then apply search criteria to select communications that are likely to be of intelligence value in accordance with the terms of the Secretary of State’s certificate. Before a particular communication may be accessed by an authorised person within the intercepting agency, the person must provide an explanation of why it is necessary for one of the reasons set out in the certificate accompanying the warrant issued by the Secretary of State, and why it is proportionate in the particular circumstances. This process is subject to internal audit and external oversight by the Interception of Communications Commissioner. Where the Secretary of State is satisfied that it is necessary, he or she may authorise the selection of communications of an individual who is known to be in the British Islands. In the absence of such an authorisation, an authorised person must not select such communications.", "Definition of external communications", "6.5. External communications are defined by RIPA to be those which are sent or received outside the British Islands. They include those which are both sent and received outside the British Islands, whether or not they pass through the British Islands in the course of their transmission. They do not include communications both sent and received in the British Islands, even if they pass outside the British Islands en route. For example, an email from a person in London to a person in Birmingham will be an internal, not external communication for the purposes of section 20 of RIPA, whether or not it is routed via IP addresses outside the British Islands, because the sender and intended recipient are within the British Islands.", "Intercepting non-external communications under section 8(4) warrants", "6.6. Section 5(6)(a) of RIPA makes clear that the conduct authorised by a section 8(4) warrant may, in principle, include the interception of communications which are not external communications to the extent this is necessary in order to intercept the external communications to which the warrant relates.", "6.7. When conducting interception under a section 8(4) warrant, an intercepting agency must use its knowledge of the way in which international communications are routed, combined with regular surveys of relevant communications links, to identify those individual communications bearers that are most likely to contain external communications that will meet the descriptions of material certified by the Secretary of State under section 8(4). It must also conduct the interception in ways that limit the collection of non-external communications to the minimum level compatible with the objective of intercepting wanted external communications.", "Application for a section 8(4) warrant", "6.8. An application for a warrant is made to the Secretary of State. Interception warrants, when issued, are addressed to the person who submitted the application. The purpose of such a warrant will typically reflect one or more of the intelligence priorities set by the National Security Council (NSC).", "6.9. Prior to submission, each application is subject to a review within the agency making the application. This involves scrutiny by more than one official, who will consider whether the application is for a purpose falling within section 5(3) of RIPA and whether the interception proposed is both necessary and proportionate.", "6.10. Each application, a copy of which must be retained by the applicant, should contain the following information:", " Description of the communications to be intercepted, details of the CSP(s) and an assessment of the feasibility of the operation where this is relevant; and", " Description of the conduct to be authorised, which must be restricted to the interception of external communications, or the conduct (including the interception of other communications not specifically identified by the warrant as foreseen under section 5(6)(a) of RIPA) it is necessary to undertake in order to carry out what is authorised or required by the warrant, and the obtaining of related communications data.", "Authorisation of a section 8(4) warrant", "6.11. Before issuing a warrant under section 8(4), the Secretary of State must believe the warrant is necessary:", "6.12. The power to issue an interception warrant for the purpose of safeguarding the economic well-being of the UK (as provided for by section 5(3)(c) of RIPA), may only be exercised where it appears to the Secretary of State that the circumstances are relevant to the interests of national security. The Secretary of State will not issue a warrant on section 5(3)(c) grounds if a direct link between the economic well-being of the UK and national security is not established. Any application for a warrant on section 5(3)(c) grounds should therefore identify the circumstances that are relevant to the interests of national security.", "6.13. The Secretary of State must also consider that the conduct authorised by the warrant is proportionate to what it seeks to achieve (section 5(2)(b)). In considering necessity and proportionality, the Secretary of State must take into account whether the information sought could reasonably be obtained by other means (section 5(4)).", "6.14. When the Secretary of State issues a warrant of this kind, it must be accompanied by a certificate in which the Secretary of State certifies that he or she considers examination of the intercepted material to be necessary for one or more of the section 5(3) purposes. The purpose of the statutory certificate is to ensure that a selection process is applied to intercepted material so that only material described in the certificate is made available for human examination. Any certificate must broadly reflect the ‘Priorities for Intelligence Collection’ set by the NSC for the guidance of the intelligence agencies. For example, a certificate might provide for the examination of material providing intelligence on terrorism (as defined in the Terrorism Act 2000) or on controlled drugs (as defined by the Misuse of Drugs Act 1971). The Interception of Communications Commissioner must review any changes to the descriptions of material specified in a certificate.", "6.15. The Secretary of State has a duty to ensure that arrangements are in force for securing that only that material which has been certified as necessary for examination for a section 5(3) purpose, and which meets the conditions set out in section 16(2) to section 16(6) is, in fact, read, looked at or listened to. The Interception of Communications Commissioner is under a duty to review the adequacy of those arrangements.", "Urgent authorisation of a section 8(4) warrant", "6.16. RIPA makes provision (section 7(l)(b)) for cases in which an interception warrant is required urgently, yet the Secretary of State is not available to sign the warrant. In these cases the Secretary of State will still personally authorise the interception but the warrant is signed by a senior official, following discussion of the case between officials and the Secretary of State. RIPA restricts the issue of warrants in this way to urgent cases where the Secretary of State has personally and expressly authorised the issue of the warrant (section 7(2)(a)), and requires the warrant to contain a statement to that effect (section 7(4)(a)).", "6.17. A warrant issued under the urgency procedure lasts for five working days following the date of issue unless renewed by the Secretary of State, in which case it expires after three months in the case of serious crime or six months in the case of national security or economic well-being, in the same way as other section 8(4) warrants.", "Format of a section 8(4) warrant", "6.18. Each warrant is addressed to the person who submitted the application. A copy may then be served upon such providers of communications services as he or she believes will be able to assist in implementing the interception. CSPs will not normally receive a copy of the certificate. The warrant should include the following:", "Modification of a section 8(4) warrant and/or certificate", "6.19. Interception warrants and certificates may be modified under the provisions of section 10 of RIPA. A warrant may only be modified by the Secretary of State or, in an urgent case, by a senior official with the express authorisation of the Secretary of State. In these cases a statement of that fact must be endorsed on the modifying instrument, and the modification ceases to have effect after five working days following the date of issue unless it is endorsed by the Secretary of State.", "6.20. A certificate must be modified by the Secretary of State, except in an urgent case where a certificate may be modified by a senior official provided that the official holds a position in which he or she is expressly authorised by provisions contained in the certificate to modify the certificate on the Secretary of State’s behalf, or the Secretary of State has expressly authorised the modification and a statement of that fact is endorsed on the modifying instrument. In the latter case, the modification ceases to have effect after five working days following the date of issue unless it is endorsed by the Secretary of State.", "6.21. Where the Secretary of State is satisfied that it is necessary, a certificate may be modified to authorise the selection of communications of an individual in the British Islands. An individual’s location should be assessed using all available information. If it is not possible, to determine definitively where the individual is located using that information, an informed assessment should be made, in good faith, as to the individual’s location. If an individual is strongly suspected to be in the UK, the arrangements set out in this paragraph will apply.", "Renewal of a section 8(4) warrant", "6.22. The Secretary of State may renew a warrant at any point before its expiry date. Applications for renewals are made to the Secretary of State and contain an update of the matters outlined in paragraph 6.10 above. In particular, the applicant must give an assessment of the value of interception to date and explain why it is considered that interception continues to be necessary for one or more of the purposes in section 5(3), and why it is considered that interception continues to be proportionate.", "6.23. Where the Secretary of State is satisfied that the interception continues to meet the requirements of RIPA, the Secretary of State may renew the warrant. Where the warrant is issued on serious crime grounds, the renewed warrant is valid for a further three months. Where it is issued on national security/economic well-being grounds the renewed warrant is valid for six months. These dates run from the date of signature on the renewal instrument.", "6.24. In those circumstances where the assistance of CSPs has been sought, a copy of the warrant renewal instrument will be forwarded to all those on whom a copy of the original warrant instrument has been served, providing they are still actively assisting. A renewal instrument will include the reference number of the warrant or warrants being renewed under this single instrument.", "Warrant cancellation", "6.25. The Secretary of State must cancel an interception warrant if, at any time before its expiry date, he or she is satisfied that the warrant is no longer necessary on grounds falling within section 5(3) of RIPA. Intercepting agencies will therefore need to keep their warrants under continuous review and must notify the Secretary of State if they assess that the interception is no longer necessary. In practice, the responsibility to cancel a warrant will be exercised by a senior official in the warrant issuing department on behalf of the Secretary of State.", "6.26. The cancellation instrument will be addressed to the person to whom the warrant was issued (the intercepting agency). A copy of the cancellation instrument should be sent to those CSPs, if any, who have given effect to the warrant during the preceding twelve months.", "Records", "6.27. The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of State’s decision is based, and the interception agency may be required to justify the content. Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he or she may require:", "6.28. Records should also be kept of the arrangements for securing that only material which has been certified for examination for a purpose under section 5(3) and which meets the conditions set out in section 16(2) – 16(6) of RIPA in accordance with section 15 of RIPA is, in fact, read, looked at or listened to. Records should be kept of the arrangements by which the requirements of section 15(2) (minimisation of copying and distribution of intercepted material) and section 15(3) (destruction of intercepted material) are to be met. For further details see the chapter on ‘Safeguards’.", "7. SAFEGUARDS", "7.1. All material intercepted under the authority of a warrant complying with section 8(1) or section 8(4) of RIPA and any related communications data must be handled in accordance with safeguards which the Secretary of State has approved in conformity with the duty imposed on him or her by RIPA. These safeguards are made available to the Interception of Communications Commissioner, and they must meet the requirements of section 15 of RIPA which are set out below. In addition, the safeguards in section 16 of RIPA apply to warrants complying with section 8(4). Any breach of these safeguards must be reported to the Interception of Communications Commissioner. The intercepting agencies must keep their internal safeguards under periodic review to ensure that they remain up-to-date and effective. During the course of such periodic reviews, the agencies must consider whether more of their internal arrangements might safely and usefully be put into the public domain.", "The section 15 safeguards", "7.2. Section 15 of RIPA requires that disclosure, copying and retention of intercepted material is limited to the minimum necessary for the authorised purposes. Section 15(4) of RIPA provides that something is necessary for the authorised purposes if the intercepted material:", "Dissemination of intercepted material", "7.3. The number of persons to whom any of the intercepted material is disclosed, and the extent of disclosure, is limited to the minimum that is necessary for the authorised purposes set out in section 15(4) of RIPA. This obligation applies equally to disclosure to additional persons within an agency, and to disclosure outside the agency. It is enforced by prohibiting disclosure to persons who have not been appropriately vetted and also by the need-to-know principle: intercepted material must not be disclosed to any person unless that person’s duties, which must relate to one of the authorised purposes, are such that he or she needs to know about the intercepted material to carry out those duties. In the same way, only so much of the intercepted material may be disclosed as the recipient needs. For example, if a summary of the intercepted material will suffice, no more than that should be disclosed.", "7.4. The obligations apply not just to the original interceptor, but also to anyone to whom the intercepted material is subsequently disclosed. In some cases this will be achieved by requiring the latter to obtain the originator’s permission before disclosing the intercepted material further. In others, explicit safeguards are applied to secondary recipients.", "7.5. Where intercepted material is disclosed to the authorities of a country or territory outside the UK, the agency must take reasonable steps to ensure that the authorities in question have and will maintain the necessary procedures to safeguard the intercepted material, and to ensure that it is disclosed, copied, distributed and retained only to the minimum extent necessary. In particular, the intercepted material must not be further disclosed to the authorities of a third country or territory unless explicitly agreed with the issuing agency, and must be returned to the issuing agency or securely destroyed when no longer needed.", "Copying", "7.6. Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section 15(4) of RIPA. Copies include not only direct copies of the whole of the intercepted material, but also extracts and summaries which identify themselves as the product of an interception, and any record referring to an interception which includes the identities of the persons to or by whom the intercepted material was sent. The restrictions are implemented by requiring special treatment of such copies, extracts and summaries that are made by recording their making, distribution and destruction.", "Storage", "7.7. Intercepted material and all copies, extracts and summaries of it, must be handled and stored securely, so as to minimise the risk of loss or theft. It must be held so as to be inaccessible to persons without the required level of vetting. This requirement to store intercept product securely applies to all those who are responsible for handling it, including CSPs. The details of what such a requirement will mean in practice for CSPs will be set out in the discussions they have with the Government before a Section 12 Notice is served (see paragraph 3.13).", "Destruction", "7.8. Intercepted material, and all copies, extracts and summaries which can be identified as the product of an interception, must be marked for deletion and securely destroyed as soon as possible once it is no longer needed for any of the authorised purposes. If such intercepted material is retained, it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section 15(3) of RIPA.", "7.9. Where an intercepting agency undertakes interception under a section 8(4) warrant and receives unanalysed intercepted material and related communications data from interception under that warrant, the agency must specify (or must determine on a system by system basis) maximum retention periods for different categories of the data which reflect its nature and intrusiveness. The specified periods should normally be no longer than two years, and should be agreed with the Interception of Communications Commissioner. Data may only be retained for longer than the applicable maximum retention periods if prior authorisation is obtained from a senior official within the particular intercepting agency on the basis that continued retention of the data has been assessed to be necessary and proportionate. If continued retention of any such data is thereafter assessed to no longer meet the tests of necessity and proportionality, it must be deleted. So far as possible, all retention periods should be implemented by a process of automated deletion, which is triggered once the applicable maximum retention period has been reached for the data at issue.", "Personnel security", "7.10. All persons who may have access to intercepted material or need to see any reporting in relation to it must be appropriately vetted. On an annual basis, managers must identify any concerns that may lead to the vetting of individual members of staff being reconsidered. The vetting of each individual member of staff must also be periodically reviewed. Where it is necessary for an officer of one agency to disclose intercepted material to another, it is the former’s responsibility to ensure that the recipient has the necessary clearance.", "The section 16 safeguards", "7.11. Section 16 provides for additional safeguards in relation to intercepted material gathered under section 8(4) warrants, requiring that the safeguards:", "7.12. In addition, any individual selection of intercepted material must be proportionate in the particular circumstances (given section 6(1) of the Human Rights Act 1998).", "7.13. The certificate ensures that a selection process is applied to material intercepted under section 8(4) warrants so that only material described in the certificate is made available for human examination (in the sense of being read, looked at or listened to). No official is permitted to gain access to the data other than as permitted by the certificate.", "7.14. In general, automated systems must, where technically possible, be used to effect the selection in accordance with section 16(1) of RIPA. As an exception, a certificate may permit intercepted material to be accessed by a limited number of specifically authorised staff without having been processed or filtered by the automated systems. Such access may only be permitted to the extent necessary to determine whether the material falls within the main categories to be selected under the certificate, or to ensure that the methodology being used remains up to date and effective. Such checking must itself be necessary on the grounds specified in section 5(3) of RIPA. Once those functions have been fulfilled, any copies made of the material for those purposes must be destroyed in accordance with section 15(3) of RIPA. Such checking by officials should be kept to an absolute minimum; whenever possible, automated selection techniques should be used instead. Checking will be kept under review by the Interception of Communications Commissioner during his or her inspections.", "7.15. Material gathered under a section 8(4) warrant should be read, looked at or listened to only by authorised persons who receive regular mandatory training regarding the provisions of RIPA and specifically the operation of section 16 and the requirements of necessity and proportionality. These requirements and procedures must be set out in internal guidance provided to all authorised persons and the attention of all authorised persons must be specifically directed to the statutory safeguards. All authorised persons must be appropriately vetted (see paragraph 7.10 for further information).", "7.16. Prior to an authorised person being able to read, look at or listen to material, a record should be created setting out why access to the material is required consistent with, and pursuant to, section 16 and the applicable certificate, and why such access is proportionate. Save where the material or automated systems are being checked as described in paragraph 7.14, the record must indicate, by reference to specific factors, the material to which access is being sought and systems should, to the extent possible, prevent access to the material unless such a record has been created. The record should include any circumstances that are likely to give rise to a degree of collateral infringement of privacy, and any measures taken to reduce the extent of the collateral intrusion. All records must be retained for the purposes of subsequent examination or audit.", "7.17. Access to the material as described in paragraph 7.15 must be limited to a defined period of time, although access may be renewed. If access is renewed, the record must be updated with the reason for the renewal. Systems must be in place to ensure that if a request for renewal is not made within that period, then no further access will be granted. When access to the material is no longer sought, the reason for this must also be explained in the record.", "7.18. Periodic audits should be carried out to ensure that the requirements set out in section 16 of RIPA and Chapter 3 of this code are being met. These audits must include checks to ensure that the records requesting access to material to be read, looked at, or listened to have been correctly compiled, and specifically, that the material requested falls within matters certified by the Secretary of State. Any mistakes or procedural deficiencies should be notified to management, and remedial measures undertaken. Any serious deficiencies should be brought to the attention of senior management and any breaches of safeguards (as noted in paragraph 7.1) must be reported to the Interception of Communications Commissioner. All intelligence reports generated by the authorised persons must be subject to a quality control audit.", "7.19. In order to meet the requirements of RIPA described in paragraph 6.3 above, where a selection factor refers to an individual known to be for the time being in the British Islands, and has as its purpose or one of its purposes, the identification of material contained in communications sent by or intended for him or her, a submission must be made to the Secretary of State, or to a senior official in an urgent case, giving an explanation of why an amendment to the section 8(4) certificate in relation to such an individual is necessary for a purpose falling within section 5(3) of RIPA and is proportionate in relation to any conduct authorised under section 8(4) of RIPA.", "7.20. The Secretary of State must ensure that the safeguards are in force before any interception under section 8(4) warrants can begin. The Interception of Communications Commissioner is under a duty to review the adequacy of the safeguards.", "...", "8. DISCLOSURE TO ENSURE FAIRNESS IN CRIMINAL PROCEEDINGS", "...", "Exclusion of matters from legal proceedings", "8.3. The general rule is that neither the possibility of interception, nor intercepted material itself, plays any part in legal proceedings. This rule is set out in section 17 of RIPA, which excludes evidence, questioning, assertion or disclosure in legal proceedings likely to reveal the existence (or the absence) of a warrant issued under this Act (or the Interception of Communications Act 1985). This rule means that the intercepted material cannot be used either by the prosecution or the defence. This preserves ‘equality of arms’ which is a requirement under Article 6 of the ECHR.", "...", "10. OVERSIGHT", "10.1. RIPA provides for an Interception of Communications Commissioner, whose remit is to provide independent oversight of the use of the powers contained within the warranted interception regime under Chapter I of Part I of RIPA.", "10.2. The Commissioner carries out biannual inspections of each of the nine interception agencies. The primary objectives of the inspections are to ensure that the Commissioner has the information he or she requires to carry out his or her functions under section 57 of RIPA and produce his or her report under section 58 of RIPA. This may include inspection or consideration of:", "10.3. Any person who exercises the powers in RIPA Part I Chapter I must report to the Commissioner any action that is believed to be contrary to the provisions of RIPA or any inadequate discharge of section 15 safeguards. He or she must also comply with any request made by the Commissioner to provide any such information as the Commissioner requires for the purpose of enabling him or her to discharge his or her functions.”", "Statement of Charles Farr", "97. In his witness statement prepared for the Liberty proceedings (see paragraph 40 above), Charles Farr indicated that, beyond the details set out in RIPA, the 2010 IC Code, and the draft IC 2016 Code (which had at that stage been published for consultation), the full details of the sections 15 and 16 safeguards were kept confidential. He had personally reviewed the arrangements and was satisfied that they could not safely be put in the public domain without undermining the effectiveness of the interception methods. However, the arrangements were made available to the IC Commissioner who was required by RIPA to keep them under review. Furthermore, each intercepting agency was required to keep a record of the arrangements in question and any breach had to be reported to the IC Commissioner.", "National Security Strategy and Strategic Defence and Security Review 2015: A Secure and Prosperous United Kingdom", "98. In this review the National Security Council (“NSC”) stated that its priorities over the next five years would be to:", "“Tackle terrorism head-on at home and abroad in a tough and comprehensive way, counter extremism and challenge the poisonous ideologies that feed it. We will remain a world leader in cyber security. We will deter state-based threats. We will respond to crises rapidly and effectively and build resilience at home and abroad.", "Help strengthen the rules-based international order and its institutions, encouraging reform to enable further participation of growing powers. We will work with our partners to reduce conflict, and to promote stability, good governance and human rights.", "Promote our prosperity, expanding our economic relationship with growing powers such as India and China, helping to build global prosperity, investing in innovation and skills, and supporting UK defence and security exports.”", "Judgment of the IPT of 29 March 2015 in Belhadj and Others v. Security Service, Secret Intelligence Service, Government Communications Headquarters, the Secretary of State for the Home Department, and the Secretary of State for the Foreign and Commonwealth Office, IPT/13/132 ‑ 9/H and IPT/14/86/CH", "99. The applicants in this case complained of breaches of Articles 6, 8 and 14 of the Convention arising from the alleged interception of their legally privileged communications. In so far as Amnesty International, in the course of the Liberty proceedings, complained about the adequacy of the arrangements for the protection of material subject to legal professional privilege (“LPP”), those complaints were “hived off” to be dealt with in this case, and Amnesty International was joined as a claimant (see paragraph 52 above).", "100. In the course of the proceedings, the respondents conceded that by virtue of there not being in place a lawful system for dealing with LPP, from January 2010 the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material had not been in accordance with the law for the purposes of Article 8 § 2 of the Convention and was accordingly unlawful. The Security Service and GCHQ confirmed that they would work in the forthcoming weeks to review their policies and procedures in light of the draft IC Code and otherwise.", "101. The IPT subsequently held a closed hearing, with the assistance of Counsel to the Tribunal (see paragraph 132 below), to consider whether any documents or information relating to any legally privileged material had been intercepted or obtained by the respondents. In a determination of 29 March 2015, it found that the intelligence services had only held two documents belonging to any of the claimants which contained material subject to LPP, and they neither disclosed nor referred to legal advice. It therefore found that the claimant concerned had not suffered any detriment or damage, and that the determination provided adequate just satisfaction. It nevertheless required that GCHQ provide an undertaking that those parts of the documents containing legally privileged material would be destroyed or deleted; that a copy of the documents would be delivered to the IC Commissioner to be retained for five years; and that a closed report would be provided within fourteen days confirming the destruction and deletion of the documents.", "102. Draft amendments to both the IC Code and the Acquisition and Disclosure of Communications Data Code of Practice were subsequently put out for consultation and the Codes which were adopted as a result in 2018 contained expanded sections concerning access to privileged information.", "Intelligence sharingBritish-US Communication Intelligence Agreement", "British-US Communication Intelligence Agreement", "British-US Communication Intelligence Agreement", "103. A British-US Communication Intelligence Agreement of 5 March 1946 governed the arrangements between the British and United States authorities in relation to the exchange of intelligence information relating to “foreign” communications, defined by reference to countries other than the United States, the United Kingdom and the Commonwealth. Pursuant to the agreement, the parties undertook to exchange the products of a number of interception operations relating to foreign communications.", "Relevant statutory framework for the operation of the intelligence services", "104. There are three intelligence services in the United Kingdom: the security service (“MI5”), the secret intelligence service (“MI6”) and GCHQ.", "(a) MI5", "105. Pursuant to section 2 of the Security Service Act 1989 (“SSA”), it was the duty of the Director-General of MI5, who was appointed by the Secretary of State for the Home Department, to ensure that there were arrangements for securing that no information was obtained by MI5 except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of the prevention or detection of serious crime or for the purpose of any criminal proceedings.", "106. According to section 1 of the SSA, the functions of MI5 were the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means; to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands; and to act in support of the activities of police forces, the National Crime Agency and other law enforcement agencies in the prevention and detection of serious crime.", "(b) MI6", "107. Section 2 of the Intelligence Services Act 1994 (“ISA”) provided that the duties of the Chief of Service of MI6, who was appointed by the Secretary of State for Foreign and Commonwealth Affairs (as he then was), included ensuring that there were arrangements for securing that no information was obtained by MI6 except so far as necessary for the proper discharge of its functions, and that no information was disclosed by it except so far as necessary for that purpose, in the interests of national security, for the purposes of the prevention or detection of serious crime or for the purpose of any criminal proceedings.", "108. According to section 1 of the ISA, the functions of MI6 were to obtain and provide information relating to the actions or intentions of persons outside the British Islands; and to perform other tasks relating to the actions or intentions of such persons. Those functions could only be exercised in the interests of national security, with particular reference to the State’s defence and foreign policies; in the interests of the economic well ‑ being of the United Kingdom; or in support of the prevention or detection of serious crime.", "(c) GCHQ", "109. Section 4 of the ISA provided that it was the duty of the Director of GCHQ, who was appointed by the Secretary of State for Foreign and Commonwealth Affairs (as he then was), to ensure that there were arrangements for securing that it obtained no information except so far as necessary for the proper discharge of its functions and that no information was disclosed by it except so far as necessary.", "110. According to section 3 of the ISA, one of the functions of GCHQ was to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material. This function was exercisable only in the interests of national security, with particular reference to the State’s defence and foreign policies; in the interests of the economic well-being of the United Kingdom in relation to the actions or intentions of persons outside the British Islands; or in support of the prevention or detection of serious crime.", "(d) Counter-Terrorism Act 2008", "111. Section 19 of the Counter-Terrorism Act 2008 allowed the disclosure of information to any of the intelligence services for the purpose of the exercise of any of their functions. Information obtained by an intelligence service in connection with the exercise of its functions could be used by that service in connection with the exercise of any of its other functions.", "112. Information obtained by MI5 could be disclosed for the purpose of the proper discharge of its functions, for the purpose of the prevention or detection of serious crime, or for the purpose of any criminal proceedings. Information obtained by MI6 could be disclosed for the purpose of the proper discharge of its functions, in the interests of national security, for the purpose of the prevention or detection of serious crime, or for the purpose of any criminal proceedings. Information obtained by GCHQ could be disclosed by it for the purpose of the proper discharge of its functions or for the purpose of any criminal proceedings.", "(e) The Data Protection Act 1998 (“the DPA”)", "113. The DPA was the legislation transposing into United Kingdom law Directive 95/46/EC on the protection of personal data. Each of the intelligence services was a “data controller” for the purposes of the DPA and, as such, they were required to comply – subject to exemption by Ministerial certificate – with the data protection principles in Part 1 of Schedule 1, including:", "“(5) Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes ...”", "and", "“(7) Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”", "(f) The Official Secrets Act 1989 (“the OSA”)", "114. A member of the intelligence services would commit an offence under section 1(1) of the OSA if he or she disclosed, without lawful authority, any information, document or other article relating to security or intelligence which was in his or her possession by virtue of his or her position as a member of those services.", "(g) The Human Rights Act 1998 (“the HRA”)", "115. Pursuant to section 6 of the HRA, it was unlawful for a public authority to act in a way which was incompatible with a Convention right.", "The Interception of Communications Code of Practice", "116. Following the Liberty proceedings, the information contained in the 9 October disclosure (see paragraphs 33 and 36 above) was incorporated into the IC Code:", "“12. RULES FOR REQUESTING AND HANDLING UNANALYSED INTERCEPTED COMMUNICATIONS FROM A FOREIGN GOVERNMENT", "Application of this chapter", "12.1. This chapter applies to those intercepting agencies that undertake interception under a section 8(4) warrant.", "Requests for assistance other than in accordance with an international mutual assistance agreement", "12.2. A request may only be made by an intercepting agency to the government of a country or territory outside the UK for unanalysed intercepted communications (and associated communications data), otherwise than in accordance with an international mutual assistance agreement, if either:", "12.3. A request falling within the second bullet of paragraph 12.2 may only be made in exceptional circumstances and must be considered and decided upon by the Secretary of State personally.", "12.4. For these purposes, a ‘relevant RIPA interception warrant’ means one of the following: (i) a section 8(1) warrant in relation to the subject at issue; (ii) a section 8(4) warrant and an accompanying certificate which includes one or more ‘descriptions of intercepted material’ (within the meaning of section 8(4)(b) of RIPA) covering the subject’s communications, together with an appropriate section 16(3) modification (for individuals known to be within the British Islands); or (iii) a section 8(4) warrant and an accompanying certificate which includes one or more ‘descriptions of intercepted material’ covering the subject’s communications (for other individuals).", "Safeguards applicable to the handling of unanalysed intercepted communications from a foreign government", "12.5. If a request falling within the second bullet of paragraph 12.2 is approved by the Secretary of State other than in relation to specific selectors, any communications obtained must not be examined by the intercepting agency according to any factors as are mentioned in section 16(2)(a) and (b) of RIPA unless the Secretary of State has personally considered and approved the examination of those communications by reference to such factors. [1]", "12.6. Where intercepted communications content or communications data are obtained by the intercepting agencies as set out in paragraph 12.2, or are otherwise received by them from the government of a country or territory outside the UK in circumstances where the material identifies itself as the product of an interception, (except in accordance with an international mutual assistance agreement), the communications content and communications data must be subject to the same internal rules and safeguards that apply to the same categories of content or data when they are obtained directly by the intercepting agencies as a result of interception under RIPA.", "12.7. All requests in the absence of a relevant RIPA interception warrant to the government of a country or territory outside the UK for unanalysed intercepted communications (and associated communications data) will be notified to the Interception of Communications Commissioner.”", "Acquisition of communications data", "117. Chapter II of Part 1 of RIPA set out the framework under which public authorities could acquire communications data from Communications Service Providers (“CSPs”).", "118. Pursuant to section 22, authorisation for the acquisition of communications data from CSPs was granted by a “designated person”, being a person holding such office, rank or position with relevant public authorities as prescribed by an order made by the Secretary of State. The designated person could either grant authorisation for persons within the same “relevant public authority” as himself or herself to “engage in conduct to which this Chapter applies” (authorisation under section 22(3)), or he or she could, by notice to the CSP, require it either to disclose data already in its possession, or to obtain and disclose data (notice under section 22(4)). For the purposes of section 22(3), “relevant public authorities” included a police force, the National Crime Agency, Her Majesty’s Revenue and Customs, any of the intelligence services, and any such public authority as could be specified by an order made by the Secretary of State.", "119. Section 22(2) further provided that the designated person could only grant an authorisation under section 22(3) or give a notice under section 22(4) if he or she believed it was necessary for one of the following grounds:", "“(a) in the interests of national security;", "(b) for the purpose of preventing or detecting crime or of preventing disorder;", "(c) in the interests of the economic well-being of the United Kingdom;", "(d) in the interests of public safety;", "(e) for the purpose of protecting public health;", "(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department;", "(g) for the purpose, in an emergency, of preventing death or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health; or", "(h) for any purpose (not falling within paragraphs (a) to (g)) which is specified for the purposes of this subsection by an order made by the Secretary of State.”", "120. He or she also had to believe that obtaining the data was proportionate to what was sought to be achieved.", "121. Chapter II of RIPA was supplemented by the Acquisition and Disclosure of Communications Data: Code of Practice, issued under section 71 of RIPA.", "IPT practice and procedureRIPA", "RIPA", "RIPA", "122. The IPT was established under section 65(1) of RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by that Act. It had jurisdiction to investigate any complaint that a person’s communications had been intercepted and, where interception had occurred, to examine the authority for such interception.", "123. Appointments to the IPT were essentially judicial in nature but varied depending on whether the proposed candidate was a serving member of the senior judiciary of England and Wales, Scotland or Northern Ireland (referred to as a “judicial member”) or if they were a “non-judicial member”. A non-judicial member could be a former member of the judiciary who was no longer serving or a senior member of the legal profession of at least ten years’ standing who was not a full-time judge. Where judicial members were selected from the judiciary in England and Wales, the Judicial Office, on behalf of the Lord Chief Justice, managed the selection process. The Judicial Office invited expressions of interest from serving High Court Judges in England and Wales and applicants were interviewed by a panel, which consisted of the President of the IPT, a non ‑ judicial member of the IPT and a lay Commissioner from the Judicial Appointments Commission. The panel then reported to the Lord Chief Justice who wrote to the Home Secretary making formal recommendations for appointments. The Home Secretary then wrote to the Prime Minister asking him to seek permission for Letters Patent from Her Majesty the Queen for the recommended appointment(s). The Prime Minister recommended the chosen candidate(s) to Her Majesty the Queen who formalised the appointment through Letters Patent. Non judicial-members were recruited through open competition. The IPT placed advertisements for non-judicial members in a selection of national newspapers and recruitment sites asking for expressions of interest from suitably qualified individuals. The process differed from that of judicial members in that it did not involve the Lord Chief Justice, but was the same in all other respects. There are currently five judicial members (two members of the English Court of Appeal (one of whom is the President), one member of the English High Court and two members of the Outer House of the Court of Session in Scotland (one of whom is the Vice-President)) and five non-judicial members (of whom one is a retired High Court judge from Northern Ireland).", "124. According to sections 67(2) and 67(3)(c), the IPT was to apply the principles applicable by a court on an application for judicial review. It did not, however, have power to make a Declaration of Incompatibility if it found primary legislation to be incompatible with the European Convention on Human Rights as it was not a “court” for the purposes of section 4 of the Human Rights Act 1998.", "125. Section 68(6) and (7) required those involved in the authorisation and execution of an interception warrant to disclose or provide to the IPT all documents and information it required.", "126. Section 68(4) provided that where the IPT determined any complaint it had the power to award compensation and to make such other orders as it thought fit, including orders quashing or cancelling any warrant and orders requiring the destruction of any records obtained thereunder (section 67(7)). In the event that a claim before the IPT was successful, the IPT was generally required to make a report to the Prime Minister (section 68(5)).", "127. Section 68(1) entitled the IPT to determine its own procedure, although section 69(1) provided that the Secretary of State could also make procedural rules.", "The Investigatory Powers Tribunal Rules 2000 (“the Rules”)", "128. The Rules were adopted by the Secretary of State to govern various aspects of the procedure before the IPT.", "129. Rule 9 allowed the IPT to hold, at any stage of consideration, oral hearings at which the complainant could make representations, give evidence and call witnesses. Although Rule 9 provided that the IPT’s proceedings, including any oral hearings, were to be conducted in private, in cases IPT/01/62 and IPT/01/77 the IPT itself decided that, subject to the general duty imposed by Rule 6 (1) to prevent the disclosure of sensitive information, it could exercise its discretion in favour of holding an open hearing. Following this commitment to hold hearings in open when possible, the IPT has also published its significant rulings on its website, provided that there is no risk of disclosure of any prejudicial information.", "130. Rule 11 allowed the IPT to receive evidence in any form, even where it would not be admissible in a court of law.", "131. Rule 6 required the IPT to carry out its functions in such a way as to ensure that information was not disclosed that was contrary to the public interest or prejudicial to national security, the prevention or detection of serious crime, the economic well-being of the United Kingdom or the continued discharge of the functions of any of the intelligence services.", "Counsel to the Tribunal", "132. The IPT could appoint Counsel to the Tribunal to make submissions on behalf of applicants in hearings at which they could not be represented. In the Liberty case, Counsel to the Tribunal described his role as follows:", "“Counsel to the Tribunal performs a different function [from special advocates in closed proceedings conducted before certain tribunals], akin to that of amicus curiae. His or her function is to assist the Tribunal in whatever way the Tribunal directs. Sometimes (e.g. in relation to issues on which all parties are represented), the Tribunal will not specify from what perspective submissions are to be made. In these circumstances, counsel will make submissions according to his or her own analysis of the relevant legal or factual issues, seeking to give particular emphasis to points not fully developed by the parties. At other times (in particular where one or more interests are not represented), the Tribunal may invite its counsel to make submissions from a particular perspective (normally the perspective of the party or parties whose interests are not otherwise represented).”", "133. This description was accepted and endorsed by the IPT.", "R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22", "134. In this judgment, which was handed down on 15 May 2019, the Supreme Court held that section 67(8) of RIPA did not preclude judicial review of a decision of the IPT.", "Oversight", "135. Part IV of RIPA provided for the appointment by the Prime Minister of an Interception of Communications Commissioner (“the IC Commissioner”) and an Intelligence Services Commissioner charged with supervising the activities of the intelligence services.", "136. The IC Commissioner was responsible for keeping under review the interception of communications and the acquisition and disclosure of communications data by intelligence services, police forces and other public authorities. In undertaking his review of surveillance practices, the IC Commissioner and his inspectors had access to all relevant documents, including closed materials, and all those involved in interception activities had a duty to disclose to him any material he required. The obligation on intercepting agencies to keep records ensured that the IC Commissioner had effective access to details of surveillance activities undertaken. After each inspection a report was sent to the head of the public authority which contained formal recommendations and which required the public authority to report back within two months to confirm whether the recommendations had been implemented or what progress had been made. The Commissioner reported to the Prime Minister on a half-yearly basis with respect to the carrying out of his functions and prepared an annual report. This report was a public document (subject to the non-disclosure of confidential annexes) which was laid before Parliament.", "137. The Intelligence Services Commissioner provided further independent external oversight of the use of the intrusive powers of the intelligence services and parts of the Ministry of Defence. He also submitted annual reports to the Prime Minister, which were laid before Parliament.", "138. The Investigatory Powers Act 2016 (see paragraphs 183-190 below) repealed these provisions, in so far as they related to England, Scotland and Wales, and in September 2017 the Investigatory Powers Commissioner’s Office (“IPCO”) took over responsibility for the oversight of investigatory powers. The IPCO consists of around fifteen Judicial Commissioners, made up of current and recently retired High Court, Court of Appeal and Supreme Court Judges; a Technical Advisory Panel made up of scientific experts; and almost fifty official staff, including inspectors, lawyers and communications experts.", "Reviews of interception operations by the intelligence serviceIntelligence and Security Committee of Parliament (“ISC”): July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme", "Intelligence and Security Committee of Parliament (“ISC”): July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme", "Intelligence and Security Committee of Parliament (“ISC”): July 2013 Statement on GCHQ’s alleged interception of communications under the US PRISM programme", "139. The ISC was originally established by the ISA to examine the policy, administration and expenditure of MI5, MI6, and GCHQ. Since the introduction of the Justice and Security Act 2013, however, the ISC was expressly given the status of a Committee of Parliament; it was provided with greater powers; and its remit was increased to include oversight of operational activity and the wider intelligence and security activities of Government. Pursuant to sections 1-4 of the Justice and Security Act 2013, it consisted of nine members drawn from both Houses of Parliament, and, in the exercise of their functions, those members were routinely given access to highly classified material.", "140. Following the Edward Snowden revelations, the ISC conducted an investigation into GCHQ’s access to the content of communications intercepted under the United States’ PRISM programme, the legal framework governing access, and the arrangements GCHQ had with its overseas counterpart for sharing information. In the course of the investigation, the ISC took detailed evidence from GCHQ and discussed the programme with the NSA.", "141. The ISC concluded that allegations that GCHQ had circumvented United Kingdom law by using the PRISM programme to access the content of private communications were unfounded as GCHQ had complied with its statutory duties contained in the ISA. It further found that in each case in which GCHQ had sought information from the United States, a warrant for interception, signed by a Government Minister, had already been in place.", "Privacy and security: a modern and transparent legal framework", "142. Following its statement in July 2013, the ISC conducted a more in-depth inquiry into the full range of the intelligence services’ capabilities. Its report, which contained an unprecedented amount of information about the intelligence services’ intrusive capabilities, was published on 12 March 2015.", "143. The ISC was satisfied that the United Kingdom’s intelligence and security services did not seek to circumvent the law, including the requirements of the Human Rights Act 1998, which governed everything that they did. However, it considered that as the legal framework had developed piecemeal, it was unnecessarily complicated. The ISC therefore had serious concerns about the resulting lack of transparency, which was not in the public interest. Consequently, its key recommendation was that the existing legal framework be replaced by a new Act of Parliament which clearly set out the intrusive powers available to the intelligence services, the purposes for which they could use them, and the authorisation required before they could do so.", "144. With regard to GCHQ’s bulk interception capability, the inquiry showed that the intelligence services did not have the legal authority, the resources, the technical capability, or the desire to intercept every communication of British citizens, or of the Internet as a whole. GCHQ were not, therefore, reading the emails of everyone in the United Kingdom. On the contrary, GCHQ’s bulk interception systems operated on a very small percentage of the bearers that made up the Internet and the ISC was satisfied that GCHQ applied levels of filtering and selection such that only a certain amount of the material on those bearers was collected. Further targeted searches ensured that only those items believed to be of the highest intelligence value were ever presented for analysts to examine, with the consequence that only a tiny fraction of those collected were ever seen by human eyes.", "145. In respect of Internet communications, the ISC considered that the distinction between “internal” and “external” communications was confusing and lacked transparency. It therefore suggested that the Government publish an explanation of which Internet communications fell under which category. Nevertheless, the inquiry had established that bulk interception could not be used to target the communications of an individual in the United Kingdom without a specific authorisation, signed by a Secretary of State, naming that individual.", "146. The ISC observed that the section 8(4) warrant was very brief. In so far as the accompanying certificate set out the categories of communications which might be examined, those categories were expressed in very general terms (for example, “material providing intelligence on terrorism (as defined by the Terrorism Act 2000 (as amended)), including, but not limited to, terrorist organisations, terrorists, active sympathisers, attack planning, fund-raising”). Given that the certificate was so generic, the ISC questioned whether it needed to be secret or whether, in the interests of transparency, it could be published.", "147. Although the section 8(4) certificate set out the general categories of information which could be examined, the ISC found that in practice it was the selection of the bearers and the application of simple selectors and search criteria which determined what communications were examined. The ISC had therefore sought assurances that these were subject to scrutiny and review by Ministers and/or the Commissioners. However, the evidence before the ISC indicated that neither Ministers nor the Commissioners had any significant visibility of these issues. The ISC therefore recommended that the IC Commissioner should be given statutory responsibility to review the various selection criteria used in bulk interception to ensure that they followed directly from the certificate and valid national security requirements.", "148. The ISC noted that communications data were central to most intelligence services’ investigations: they could be analysed to find patterns that reflected particular online behaviours associated with activities such as attack planning, to establish links, to help focus on individuals who might pose a threat, to ensure that interception was properly targeted, and to illuminate networks and associations relatively quickly. They were particularly useful in the early stages of an investigation, when the intelligence services had to be able to determine whether those associating with a target were connected to the plot (and therefore required further investigation) or were innocent bystanders. According to the Secretary of State for the Home Department, they had “played a significant role in every Security Service counter-terrorism operation over the last decade”. Nevertheless, the ISC expressed concern about the definition of “communications data”. While it accepted that there was a category of communications data which was less intrusive than content, and therefore did not require the same degree of protection, it considered that there existed certain categories of communications data which had the potential to reveal more intrusive details about a person’s private life and, therefore, required greater safeguards.", "149. Finally, with regard to the IPT, the ISC expressly recognised the importance of a domestic right of appeal.", "“A Question of Trust”: Report of the Investigatory Powers Review by the Independent Reviewer of Terrorism Legislation (“the Anderson Report”)", "150. The Independent Reviewer of Terrorism Legislation is a person wholly independent of Government, appointed by the Home Secretary and by the Treasury for a renewable three-year term. He is tasked with reporting to the Home Secretary and to Parliament on the operation of counter ‑ terrorism law in the United Kingdom. These reports are laid before Parliament to inform the public and political debate.", "151. The purpose of the Anderson Report, which was both laid before Parliament and published on 11 June 2015, and which was named after David Anderson Q.C., the then Independent Reviewer of Terrorism Legislation, was to inform the public and political debate on the threats to the United Kingdom, the capabilities required to combat those threats, the safeguards in place to protect privacy, the challenges of changing technology, issues relating to transparency and oversight, and the case for new or amended legislation. In conducting the review the Independent Reviewer had unrestricted access, at the highest level of security clearance, to the responsible Government departments and public authorities. He also engaged with service providers, independent technical experts, non ‑ governmental organisations, academics, lawyers, judges and regulators.", "152. The Independent Reviewer had noted that the statutory framework governing investigatory powers had “developed in a piecemeal fashion”, with the consequence that there were “few [laws] more impenetrable than RIPA and its satellites”.", "153. With regard to the importance of communications data, he observed that they enabled the intelligence services to build a picture of a subject of interest’s activities and were extremely important in providing information about criminal and terrorist activity. They identified targets for further work and also helped to determine if someone was completely innocent. Of central importance was the ability to use communications data (subject to necessity and proportionality) for:", "(a) linking an individual to an account or action (for example, visiting a website or sending an email) through IP resolution;", "(b) establishing a person’s whereabouts, traditionally via cell site or GPRS data;", "(c) establishing how suspects or victims were communicating (that is, via which applications or services);", "(d) observing online criminality (for example, which websites were being visited for the purposes of terrorism, child sexual exploitation or purchases of firearms or illegal drugs); and", "(e) exploiting data (for example, to identify where, when and with whom or what someone was communicating, how malware or a denial of service attack was delivered, and to corroborate other evidence).", "154. Moreover, analysis of communications data could be performed speedily, making them extremely useful in fast-moving operations, and use of communications data could either build a case for using a more intrusive measure, or deliver the information that would make other measures unnecessary.", "155. The Independent Reviewer’s proposals for reform can be summarised as follows:", "(a) the drafting of a comprehensive and comprehensible new law, replacing “the multitude of current powers” and providing clear limits and safeguards on any intrusive power it might be necessary for public authorities to use;", "(b) the review and clarification of the definitions of “content” and “communications data”;", "(c) the retention of the capability of the security and intelligence services to practice bulk collection of intercepted material and associated communications data, but only subject to strict additional safeguards including the authorisation of all warrants by a Judicial Commissioner at a new Independent Surveillance and Intelligence Commission (“ISIC”);", "(d) the spelling out in the accompanying certificate of the purposes for which material or data were sought by reference to specific operations or mission purposes (for example, “attack planning by ISIL in Iraq/Syria against the UK”);", "(e) the creation of a new form of bulk warrant limited to the acquisition of communications data which could be a proportionate option in certain cases;", "(f) the ISIC should take over intelligence oversight functions and should be public-facing, transparent and accessible to the media; and", "(g) the IPT should have the capacity to make declarations of incompatibility and its rulings should be subject to appeals on points of law.", "A Democratic Licence to Operate: Report of the Independent Surveillance Review (“ISR”)", "156. The ISR was undertaken by the Royal United Services Institute, an independent think-tank, at the request of the then deputy Prime Minister, partly in response to the revelations by Edward Snowden. Its terms of reference were to look at the legality of United Kingdom surveillance programmes and the effectiveness of the regimes that governed them, and to suggest reforms which might be necessary to protect both individual privacy and the necessary capabilities of the police and security and intelligence services.", "157. Having completed its review the ISR found no evidence that the British Government was knowingly acting illegally in intercepting private communications, or that the ability to collect data in bulk was being used by the Government to provide it with a perpetual window into the private lives of British citizens. On the other hand, it found evidence that the existing legal framework authorising the interception of communications was unclear, had not kept pace with developments in communications’ technology, and did not serve either the Government or members of the public satisfactorily. It therefore concluded that a new, comprehensive and clearer legal framework was required.", "158. In particular, it supported the view set out in both the ISC and Anderson Report that while the current surveillance powers were needed, both a new legislative framework and oversight regime were required. It further considered that the definitions of “content” and “communications data” should be reviewed as part of the drafting of the new legislation so that they could be delineated clearly in law.", "159. With regard to communications data, the report noted that greater volumes were available on an individual relative to content, because every piece of content was surrounded by multiple pieces of communications data. Furthermore, aggregating data sets could create an extremely accurate picture of an individual’s life since, given enough raw data, algorithms and powerful computers could generate a substantial picture of the individual and his or her patterns of behaviour without ever accessing content. In addition, the use of increasingly sophisticated encryption methods had made content increasingly difficult to access.", "160. It further considered that the capability of the security and intelligence services to collect and analyse intercepted material in bulk should be maintained, but with the stronger safeguards recommended in the Anderson Report. In particular, it agreed that warrants for bulk interception should include much more detail and should be the subject of a judicial authorisation process, save for when there was an urgent requirement.", "161. In addition, it agreed with both the ISC and the Anderson Report that there should be different types of warrant for the interception and acquisition of communications and related data. It was proposed that warrants for a purpose relating to the detection or prevention of serious and organised crime should always be authorised by a Judicial Commissioner, while warrants for purposes relating to national security should be authorised by the Secretary of State subject to judicial review by a Judicial Commissioner.", "162. With regard to the IPT, the ISR recommended open public hearings, except where it was satisfied private or closed hearings were necessary in the interests of justice or other identifiable public interest. Furthermore, the IPT should have the ability to test secret evidence put before it, possibly through the appointment of Special Counsel. Finally, it agreed with the ISC and Anderson Report that a domestic right of appeal was important and should be considered in future legislation.", "Report of the Bulk Powers Review", "163. The bulk powers review was set up in May 2016 to evaluate the operational case for the four bulk powers contained in what was then the Investigatory Powers Bill (now the Investigatory Powers Act 2016: see paragraphs 183-190 below). Those powers related to bulk interception and the bulk acquisition of communications data, bulk equipment interference and the acquisition of bulk personal datasets.", "164. The review was again carried out by the Independent Reviewer of Terrorism Legislation. To conduct the review he recruited three team members, all of whom had the necessary security clearance to access very highly classified material, including a person with the necessary technical background to understand the systems and techniques used by GCHQ, and the uses to which they could be put; an investigator with experience as a user of secret intelligence, including intelligence generated by GCHQ; and senior independent counsel with the skills and experience to challenge forensically the evidence and the case studies presented by the security and intelligence services.", "165. In conducting their review, the team had significant and detailed contact with the intelligence services at all levels of seniority as well as the relevant oversight bodies (including the IPT and Counsel to the Tribunal), NGOs and independent technical experts.", "166. Although the review was of the Investigatory Powers Bill, a number of its findings in respect of bulk interception were relevant to the case at hand. In particular, having examined a great deal of closed material, the review concluded that bulk interception was an essential capability: first, because terrorists, criminal and hostile foreign intelligence services had become increasingly sophisticated at evading detection by traditional means; and secondly, because the nature of the global Internet meant that the route a particular communication would travel had become hugely unpredictable. The review team looked at alternatives to bulk interception (including targeted interception, the use of human sources and commercial cyber-defence products) but concluded that no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power as a method of obtaining the necessary intelligence.", "Attacks in London and Manchester March-June 2017: Independent Assessment of MI5 and Police Internal Reviews", "167. Following a series of four terrorist attacks in the short period between March and June 2017, in the course of which some thirty-six innocent people were killed and almost 200 more were injured, the Home Secretary asked the recently retired Independent Reviewer of Terrorism Legislation, David Anderson Q.C., to assess the classified internal reviews of the police and intelligence services involved. In placing the attacks in context, the Report made the following observations:", "“1.4 First, the threat level in the UK from so-called ‘international terrorism’ (in practice, Islamist terrorism whether generated at home or abroad) has been assessed by the Joint Terrorism Analysis Centre (JTAC) as SEVERE since August 2014, indicating that Islamist terrorist attacks in the UK are ‘highly likely’. Commentators with access to the relevant intelligence have always been clear that this assessment is realistic. They have pointed also to the smaller but still deadly threat from extreme right wing (XRW) terrorism, exemplified by the murder of Jo Cox MP in June 2016 and by the proscription of the neo-Nazi group National Action in December 2016.", "1.5 Secondly, the growing scale of the threat from Islamist terrorism is striking. The Director General of MI5, Andrew Parker, spoke in October 2017 of ‘a dramatic upshift in the threat this year’ to ‘the highest tempo I’ve seen in my 34 year career’. Though deaths from Islamist terrorism occur overwhelmingly in Africa, the Middle East and South Asia, the threat has grown recently across the western world, and has been described as ‘especially diffuse and diverse in the UK’. It remains to be seen how this trend will be affected, for good or ill, by the physical collapse of the so ‑ called Islamic State in Syria and Iraq.", "1.6 Thirdly, the profiles of the attackers ... display many familiar features. ...", "1.7 Fourthly, though the targets of the first three attacks did not extend to the whole of the current range, they had strong similarities to the targets of other recent western attacks: political centres (e.g. Oslo 2011, Ottawa 2014, Brussels 2016); concert-goers, revellers and crowds (e.g. Orlando 2016, Paris 2016, Barcelona 2017); and police officers (e.g. Melbourne 2014, Berlin 2015, Charleroi 2016). There are precedents also for attacks on observant Muslims which have crossed the boundary from hate crime to terrorism, including the killing of Mohammed Saleem in the West Midlands in 2013.", "1.8 Fifthly, the modus operandi (MO) of terrorist attacks has diversified and simplified over the years, as Daesh has employed its formidable propaganda effort to inspire rather than to direct acts of terrorism in the west. The attacks under review were typical in style for their time and place:", "(a) Unlike the large, directed Islamist plots characteristic of the last decade, all four attacks were committed by lone actors or small groups, with little evidence of detailed planning or precise targeting.", "(b) Strong gun controls in the UK mean that bladed weapons are more commonly used than firearms in gang-related and terrorist crime.", "(c) Since a truck killed 86 innocent people in Nice (July 2016), vehicles – which featured in three of the four attacks under review – have been increasingly used as weapons.", "(d) The combination of a vehicle and bladed weapons, seen at Westminster and London Bridge, had previously been used to kill the soldier Lee Rigby (Woolwich, 2013).", "(e) Explosives, used in Manchester, were the most popular weapon for Islamist terrorists targeting Europe between 2014 and 2017. The explosive TATP has proved to be capable of manufacture (aided by on-line purchases and assembly instructions) more easily than was once assumed.”", "Annual Report of the Interception of Communications Commissioner for 2016", "168. The IC Commissioner observed that when conducting interception under a section 8(4) warrant, an intercepting agency had to use its knowledge of the way in which international communications were routed, combined with regular surveys of relevant communications links, to identify those individual communications bearers that were most likely to contain external communications that would meet the descriptions of material certified by the Secretary of State under section 8(4). It also had to conduct the interception in ways that limited the collection of non-external communications to the minimum level compatible with the objective of intercepting the wanted external communications.", "169. He further observed that prior to analysts being able to read, look at or listen to material, they had to provide a justification, which included why access to the material was required, consistent with, and pursuant to section 16 and the applicable certificate, and why such access was proportionate. Inspections and audits showed that although the selection procedure was carefully and conscientiously undertaken, it relied on the professional judgment of analysts, their training and management oversight.", "170. According to the report, 3007 interception warrants were issued in 2016 and five applications were refused by a Secretary of State. In the view of the IC Commissioner, these figures did not capture the critical quality assurance function initially carried out by the staff and lawyers within the intercepting agency or the warrant-granting department (the warrant-granting departments were a source of independent advice to the Secretary of State and performed pre-authorisation scrutiny of warrant applications and renewals to ensure that they were (and remained) necessary and proportionate). Based on his inspections, he was confident that the low number of rejections reflected the careful consideration given to the use of these powers.", "171. A typical inspection of an interception agency included the following:", "172. After each inspection, inspectors produced a report, including:", "173. During 2016, the IC Commissioner’s office inspected all nine interception agencies once and the four main warrant-granting departments twice. This, together with extra visits to GCHQ, made a total of twenty-two inspection visits. In addition, he and his inspectors arranged other ad hoc visits to agencies.", "174. Inspection of the systems in place for applying for and authorising interception warrants usually involved a three-stage process. First, to achieve a representative sample of warrants, inspectors selected them across different crime types and national security threats. In addition, inspectors focussed on those of particular interest or sensitivity (such as those which gave rise to an unusual degree of collateral intrusion, those which had been extant for a considerable period, those which were approved orally, those which resulted in the interception of legal or otherwise confidential communications, and so-called “thematic” warrants). Secondly, inspectors scrutinised the selected warrants and associated documentation in detail during reading days which preceded the inspections. At this stage, inspectors were able to examine the necessity and proportionality statements made by analysts when adding a selector to the collection system for examination. Each statement had to stand on its own and had to refer to the overall requirement of priorities for intelligence collection. Thirdly, they identified those warrants, operations or areas of the process which required further information or clarification and arranged to interview relevant operational, legal or technical staff. Where necessary, they examined further documentation or systems relating to those warrants.", "175. Nine hundred and seventy warrants were examined during the twenty-two interception inspections (sixty-one percent of the number of warrants in force at the end of the year and thirty-two percent of the total of new warrants issued in 2016).", "176. Retention periods were not prescribed by legislation, but the agencies had to consider section 15(3) of RIPA, which provided that the material or data had to be destroyed as soon as retaining them was no longer necessary for any of the authorised purposes in section 15(4). According to the report, every interception agency had a different view on what constituted an appropriate retention period for intercepted material and related communications data. The retention periods therefore differed within the interception agencies; for content, they ranged between thirty days and one year, and for related communications data, they ranged between six months and one year. In practice, however, the vast majority of content was reviewed and automatically deleted after a very short period of time unless specific action was taken to retain the content for longer because it was necessary to do so.", "177. The IC Commissioner expressly noted the he “was impressed by the quality” of the necessity and proportionality statements made by analysts when adding a selector to the collection system for examination.", "178. Inspectors made a total of twenty-eight recommendations in their inspection reports, eighteen of which were made in relation to the application process. The majority of the recommendations in this category related to the necessity, proportionality and/or collateral intrusion justifications in the applications, or to the handling of legally privileged or otherwise confidential material relating to sensitive professions.", "179. The total number of interception errors reported to the IC Commissioner during 2016 was 108. Key causes of interception errors were over-collection (generally technical software or hardware errors that caused over-collection of intercepted material and related communications data), unauthorised selection/examination, incorrect dissemination, the failure to cancel interception, and the interception of either an incorrect communications address or person.", "180. Finally, with regard to intelligence sharing, the IC Commissioner noted that:", "“GCHQ provided comprehensive details of the sharing arrangements whereby Five Eyes partners can access elements of the product of GCHQ’s interception warrants on their own systems. My inspectors also met representatives of the Five Eyes community and received a demonstration of how other Five Eyes members can request access to GCHQ’s data. Access to GCHQ systems is tightly controlled and has to be justified in accordance with the laws of the host country and handling instructions of section 15/16 safeguards. Before getting any access to GCHQ data, Five Eyes analysts must complete the same legalities training as GCHQ staff.”", "Annual report of the Intelligence Services Commissioner for 2016", "181. The Intelligence Services Commissioner, in his report on compliance with the “Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees”, observed that", "“In the course of their work, each of the agencies works closely with foreign liaison partners. This involves routine intelligence sharing and at times collaborative operations. I am satisfied that the agencies are sensitive to the implications of working with partners acting under different legal systems and note that [the United Kingdom Intelligence Community] working overseas are careful to apply the principles of UK law as far as possible.", "...", "GCHQ works closely with liaison partners and is involved in regular intelligence sharing and at times collaborative work. This is a complex area for both GCHQ and SIS, where agency staff work with partners who are applying different and sometimes incompatible legal frameworks. I have been impressed by the efforts of GCHQ’s staff to gain assurances from partners, particularly with regard to the consolidated guidance. I have recommended that GCHQ should consider making reference in relevant submissions to the fact of local laws which will affect any partner’s activity.", "I was satisfied that GCHQ is applying the principles of the consolidated guidance sensitively, and am pleased that changes made to the training for 24/7 staff are raising the already high standard of the referrals process. I noted that on occasion GCHQ officers updated the consolidated guidance log after the fact to clarify judgements or details. While it is important to represent the fullest available facts, I recommended that GCHQ should set out points of clarification in addition to and not amendment to the original log entry. GCHQ subsequently confirmed that this has been implemented.", "...", "The Foreign Secretary is also responsible for providing ministerial oversight on occasions where the consolidated guidance has been engaged and the agencies intend to proceed, either with intelligence sharing or a live operation. I have recommended that the [Foreign and Commonwealth Office] should obtain a copy of any assurances that SIS have obtained from a liaison partner. I would advise that these should be made available for the Foreign Secretary to scrutinise while considering any consolidated guidance-related submissions.”", "182. Oversight of compliance with the Consolidated Guidance now falls under the remit of the new Investigatory Powers Commissioner. The Guidance is currently being reviewed since the Intelligence Services Commissioner, in his 2015 report, indicated that while he did “not think that the Consolidated Guidance was fundamentally defective or not fit for purpose”, he nevertheless expressed the view that it had been “in operation in its current form for some years and that there was room for improvement”.", "The Investigatory Powers Act 2016", "183. The Investigatory Powers Act 2016 received Royal Assent on 29 November 2016. The new regime which it introduced is now largely operational, with the majority of the powers under the Act having been brought into force during the course of 2018.", "184. Under the 2016 Act a bulk interception warrant – which may cover both the “content” of communications and “secondary data” – has to be necessary at least in the interests of national security (but may also be for the purpose of preventing or detecting serious crime or in the interests of the economic well-being of the United Kingdom in so far as those interests are also relevant to national security). The warrant must specify the “operational purposes” for which any material obtained under that warrant may be selected for examination. There are detailed provisions about the making of the list of “operational purposes” by the heads of the intelligence services. An operational purpose may be specified in that list only with the approval of the Secretary of State. The list of operational purposes must be provided to the ISC every three months and must be reviewed by the Prime Minister at least once a year.", "185. An application for a bulk warrant must be made by or on behalf of the head of an intelligence service. The power to issue a warrant must be exercised by the Secretary of State personally and in deciding whether to issue a bulk warrant he or she must apply the principles of necessity and proportionality. The issuing of the warrant is subject to prior approval by a Judicial Commissioner, who must apply the principles of judicial review (the so-called “double-lock”). The Judicial Commissioner must therefore consider for himself or herself questions such as whether an interference is justified as being proportionate under Article 8 § 2 of the Convention.", "186. The warrant lasts for six months unless it has already been cancelled or renewed. Renewal is subject to approval by a Judicial Commissioner.", "187. The “main purpose” of the warrant must be to obtain “overseas ‑ related communications”, being communications sent to or received by individuals outside the British Islands. Selection for examination of intercepted content or “protected material” is subject to the “British Islands safeguard”, meaning that it may not at any time be selected for examination if any criteria used for the selection of the intercepted content for examination are referable to an individual known to be in the British Islands at that time, and the purpose of using those criteria is to identify the content of communications sent by, or intended for, that individual.", "188. The 2016 Act also created a right of appeal from the IPT and replaced the Interception of Communications Commissioner with a new Investigatory Powers Commissioner (see paragraph 138 above).", "189. A series of new Codes of Practice, including a new Interception of Communications Code of Practice, entered into force on 8 March 2018 (see paragraph 102 above).", "190. Part 4 of the 2016 Act, which came into force on 30 December 2016, included a power to issue “retention notices” to telecommunications operators requiring the retention of data. Following a legal challenge by Liberty, the Government conceded that Part 4 of the 2016 Act was, in its existing form, inconsistent with the requirements of EU law. Part 4 was not amended and on 27 April 2018 the High Court found Part 4 to be incompatible with fundamental rights in EU law since, in the area of criminal justice, access to retained data was not limited to the purpose of combating “serious crime”; and access to retained data was not subject to prior review by a court or an independent administrative body.", "RELEVANT INTERNATIONAL LAWThe United Nations", "The United Nations", "The United Nations", "191. Resolution no. 68/167, adopted by the General Assembly on 18 December 2013, reads as follows:", "“The General Assembly,", "...", "4. Calls upon all States:", "...", "( c ) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law;", "( d ) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data ...”", "The Council of EuropeThe Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981", "The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981", "The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981", "192. The Convention, which entered into force in respect of the United Kingdom on 1 December 1987, sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. It provides, in so far as relevant:", "Preamble", "“The member States of the Council of Europe, signatory hereto,", "Considering that the aim of the Council of Europe is to achieve greater unity between its members, based in particular on respect for the rule of law, as well as human rights and fundamental freedoms;", "Considering that it is desirable to extend the safeguards for everyone’s rights and fundamental freedoms, and in particular the right to the respect for privacy, taking account of the increasing flow across frontiers of personal data undergoing automatic processing;", "Reaffirming at the same time their commitment to freedom of information regardless of frontiers;", "Recognising that it is necessary to reconcile the fundamental values of the respect for privacy and the free flow of information between peoples,", "Have agreed as follows:”", "Article 1 – Object and purpose", "“The purpose of this Convention is to secure in the territory of each Party for every individual, whatever his nationality or residence, respect for his rights and fundamental freedoms, and in particular his right to privacy, with regard to automatic processing of personal data relating to him (‘data protection’).”", "...", "Article 8 – Additional safeguards for the data subject", "“Any person shall be enabled:", "a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;", "b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;", "c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention;", "d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.”", "Article 9 – Exceptions and restrictions", "“1. No exception to the provisions of Articles 5, 6 and 8 of this Convention shall be allowed except within the limits defined in this article.", "2. Derogation from the provisions of Articles 5, 6 and 8 of this Convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "...”", "Article 10 – Sanctions and remedies", "“Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.”", "193. The Explanatory Report to the above-mentioned Convention explains that:", "Article 9 – Exceptions and restrictions", "“55. Exceptions to the basic principles for data protection are limited to those which are necessary for the protection of fundamental values in a democratic society. The text of the second paragraph of this article has been modelled after that of the second paragraphs of Articles 6, 8, 10 and 11 of the European Human Rights Convention. It is clear from the decisions of the Commission and the Court of Human Rights relating to the concept of ‘necessary measures’ that the criteria for this concept cannot be laid down for all countries and all times, but should be considered in the light of the given situation in each country.", "56. Littera a in paragraph 2 lists the major interests of the State which may require exceptions. These exceptions are very specific in order to avoid that, with regard to the general application of the convention, States would have an unduly wide leeway.", "States retain, under Article 16, the possibility to refuse application of the convention in individual cases for important reasons, which include those enumerated in Article 9.", "The notion of ‘State security’ should be understood in the traditional sense of protecting national sovereignty against internal or external threats, including the protection of the international relations of the State.”", "The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181)", "194. The Protocol, which has not been ratified by the United Kingdom, provides, in so far as relevant:", "Article 1 – Supervisory authorities", "“1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol.", "2. a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol.", "b. Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence.", "3. The supervisory authorities shall exercise their functions in complete independence.", "4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts.", "...”", "Article 2 – Transborder flows of personal data to a recipient which is not subject to the jurisdiction of a Party to the Convention", "“1. Each Party shall provide for the transfer of personal data to a recipient that is subject to the jurisdiction of a State or organisation that is not Party to the Convention only if that State or organisation ensures an adequate level of protection for the intended data transfer.", "2. By way of derogation from paragraph 1 of Article 2 of this Protocol, each Party may allow for the transfer of personal data:", "a. if domestic law provides for it because of:", "– specific interests of the data subject, or", "– legitimate prevailing interests, especially important public interests, or", "b. if safeguards, which can in particular result from contractual clauses, are provided by the controller responsible for the transfer and are found adequate by the competent authorities according to domestic law.”", "Recommendation of the Committee of Ministers on the protection of personal data in the area of telecommunication services", "195. Recommendation (No. R (95) 4 of the Committee of Ministers), which was adopted on 7 February 1995, reads, in so far as relevant, as follows:", "“2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of:", "a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences;", "b. protecting the data subject or the rights and freedoms of others.", "2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate:", "a. the exercise of the data subject’s rights of access and rectification;", "b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it;", "c. storage or destruction of such data.", "If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference.”", "The 2015 Report of the European Commission for Democracy through Law (“the Venice Commission”) on the Democratic Oversight of Signals Intelligence Agencies", "196. The Venice Commission noted, at the outset, the value that bulk interception could have for security operations, since it enabled the security services to adopt a proactive approach, looking for hitherto unknown dangers rather than investigating known ones. However, it also noted that intercepting bulk data in transmission, or requirements that telecommunications companies store and then provide telecommunications content data or metadata to law-enforcement or security agencies, involved an interference with the privacy and other human rights of a large proportion of the population of the world. In this regard, the Venice Commission considered that the main interference with privacy occurred when stored personal data were accessed and/or processed by the agencies. For this reason, the computer analysis (usually with the help of selectors) was one of the important stages for balancing personal integrity concerns against other interests.", "197. According to the report, the two most significant safeguards were the authorisation (of collection and access) and the oversight of the process. It was clear from the Court’s case-law that the latter had to be performed by an independent, external body. While the Court had a preference for judicial authorisation, it had not found this to be a necessary requirement. Rather, the system had to be assessed as a whole, and where independent controls were absent at the authorisation stage, particularly strong safeguards had to exist at the oversight stage. In this regard, the Venice Commission considered the example of the system in the United States, where authorisation was given by the FISC. However, despite the existence of judicial authorisation, the lack of independent oversight of the conditions and limitations set by the court was problematic.", "198. Similarly, the Commission observed that notification of the subject of surveillance was not an absolute requirement of Article 8 of the Convention, since a general complaints procedure to an independent oversight body could compensate for non-notification.", "199. The report also considered internal controls to be a “primary safeguard”. Recruitment and training were key issues; in addition, it was important for the agencies to build in respect for privacy and other human rights when promulgating internal rules.", "200. The report acknowledged that journalists were a group which required special protection, since searching their contacts could reveal their sources (and the risk of discovery could be a powerful disincentive to whistle-blowers). Nevertheless, it considered there to be no absolute prohibition on searching the contacts of journalists, provided that there were very strong reasons for doing so. According to the report, the journalistic profession was not one which was easily identified, since NGOs were also engaged in building public opinion and even bloggers could claim to be entitled to equivalent protections.", "201. Finally, the report considered briefly the issue of intelligence sharing, and in particular the risk that States could thereby circumvent stronger domestic surveillance procedures and/or any legal limits which their agencies might be subject to as regards domestic intelligence operations. It considered that a suitable safeguard would be to provide that the bulk material transferred could only be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques.", "EUROPEAN UNION LAWCharter of Fundamental Rights of the European Union", "Charter of Fundamental Rights of the European Union", "Charter of Fundamental Rights of the European Union", "202. Articles 7, 8 and 11 of the Charter provide as follows:", "Article 7 – Respect for private and family life", "“Everyone has the right to respect for his or her private and family life, home and communications.”", "Article 8 – Protection of personal data", "“1. Everyone has the right to the protection of personal data concerning him or her.", "2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which have been collected concerning him or her, and the right to have them rectified.", "3. Compliance with these rules shall be subject to control by an independent authority. ”", "Article 11 – Freedom of expression and information", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.", "2. The freedom and pluralism of the media shall be respected.”", "European Union directives and regulations relating to protection and processing of personal data", "203. The Data Protection Directive (Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data), adopted on 24 October 1995, regulated for many years the protection and processing of personal data within the European Union. As the activities of Member States regarding public safety, defence and State security fell outside the scope of Community law, the Directive did not apply to these activities (Article 3(2)).", "204. The General Data Protection Regulation, adopted in April 2016, superseded the Data Protection Directive and became enforceable on 25 May 2018. The regulation, which is directly applicable in Member States, [2] contains provisions and requirements pertaining to the processing of personally identifiable information of data subjects inside the European Union, and applies to all enterprises, regardless of location, doing business with the European Economic Area. Business processes that handle personal data must be built with data protection by design and by default, meaning that personal data must be stored using pseudonymisation or full anonymization, and use the highest-possible privacy settings by default, so that the data are not available publicly without explicit consent, and cannot be used to identify a subject without additional information stored separately. No personal data may be processed unless it is done under a lawful basis specified by the regulation, or if the data controller or processor has received explicit, opt-in consent from the data’s owner. The data owner has the right to revoke this permission at any time.", "205. A processor of personal data must clearly disclose any data collection, declare the lawful basis and purpose for data processing, how long data are being retained, and if they are being shared with any third ‑ parties or outside of the European Union. Users have the right to request a portable copy of the data collected by a processor in a common format, and the right to have their data erased under certain circumstances. Public authorities, and businesses whose core activities centre around regular or systematic processing of personal data, are required to employ a data protection officer (DPO), who is responsible for managing compliance with the GDPR. Businesses must report any data breaches within 72 hours if they have an adverse effect on user privacy.", "206. The Privacy and Electronic Communications Directive (Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector), adopted on 12 July 2002, states, in recitals 2 and 11:", "“(2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter.", "... ... ...", "(11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the rulings of the European Court of Human Rights. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms.”", "207. The Directive further provides, in so far as relevant:", "Article 1 – Scope and aim", "“1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.", "2. The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons.", "3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.”", "Article 15 – Application of certain provisions of Directive 95/46/EC", "“1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.”", "208. On 15 March 2006 the Data Retention Directive (Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC) was adopted. Prior to the judgment of 2014 declaring it invalid (see paragraph 209 below), it provided, in so far as relevant:", "Article 1 - Subject matter and scope", "“1. This Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.", "2. This Directive shall apply to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It shall not apply to the content of electronic communications, including information consulted using an electronic communications network.”", "Article 3 – Obligation to retain data", "“1. By way of derogation from Articles 5, 6 and 9 of Directive 2002/58/EC, Member States shall adopt measures to ensure that the data specified in Article 5 of this Directive are retained in accordance with the provisions thereof, to the extent that those data are generated or processed by providers of publicly available electronic communications services or of a public communications network within their jurisdiction in the process of supplying the communications services concerned.”", "Relevant case-law of the Court of Justice of the European Union (“CJEU”) Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238)", "Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238)", "Digital Rights Ireland Ltd v. Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others (Cases C‑293/12 and C‑594/12; ECLI:EU:C:2014:238)", "209. In a judgment of 8 April 2014 the CJEU declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The CJEU noted that, even though the directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain the data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union and the right to protection of personal data under Article 8 of the Charter.", "210. The access of the competent national authorities to the data constituted a further interference with those fundamental rights, which the CJEU considered to be “particularly serious”. The fact that data were retained and subsequently used without the subscriber or registered user being informed was, according to the CJEU, likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality.", "211. Firstly, the directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population, according to the CJEU. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime.", "212. Secondly, the directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each Member State in its national law, the directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued.", "213. Thirdly, the directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data.", "Tele2 Sverige AB v. Post- och telestyrelsen and Secretary of State for the Home Department v. Tom Watson and Others (Cases C ‑ 203/15 and C ‑ 698/15; ECLI:EU:C:2016:970)", "214. In Secretary of State for the Home Department v. Watson and Others, the applicants had sought judicial review of the legality of section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”), pursuant to which the Secretary of State could require a public telecommunications operator to retain relevant communications data if he or she considered it necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (h) of section 22(2) of RIPA. The applicants claimed, inter alia, that section 1 was incompatible with Articles 7 and 8 of the Charter and Article 8 of the Convention.", "215. On 17 July 2015, the High Court held that the Digital Rights judgment laid down “mandatory requirements of EU law” applicable to the legislation of Member States on the retention of communications data and access to such data. Since the CJEU, in that judgment, held that Directive 2006/24 was incompatible with the principle of proportionality, national legislation containing the same provisions as that directive could, equally, not be compatible with that principle. In fact, it followed from the underlying logic of the Digital Rights judgment that legislation that established a general body of rules for the retention of communications data was in breach of the rights guaranteed in Articles 7 and 8 of the Charter, unless that legislation was complemented by a body of rules for access to the data, defined by national law, which provided sufficient safeguards to protect those rights. Accordingly, section 1 of DRIPA was not compatible with Articles 7 and 8 of the Charter as it did not lay down clear and precise rules providing for access to and use of retained data and access to those data was not made dependent on prior review by a court or an independent administrative body.", "216. On appeal by the Secretary of State, the Court of Appeal sought a preliminary ruling from the CJEU.", "217. Before the CJEU this case was joined with the request for a preliminary ruling from the Kammarrätten i Stockholm in Case C‑203/15 Tele2 Sverige AB v Post- och telestyrelsen. Following an oral hearing in which some fifteen European Union Member States intervened, the CJEU gave judgment on 21 December 2016. The CJEU held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, had to be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, was not restricted solely to fighting serious crime, where access was not subject to prior review by a court or an independent administrative authority, and where there was no requirement that the data concerned should be retained within the European Union.", "218. The CJEU declared the Court of Appeal’s question whether the protection afforded by Articles 7 and 8 of the Charter was wider than that guaranteed by Article 8 of the Convention inadmissible.", "219. Following the handing down of the CJEU’s judgment, the case was relisted before the Court of Appeal. On 31 January 2018 it granted declaratory relief in the following terms: that section 1 of DRIPA was inconsistent with European Union law to the extent that it permitted access to retained data where the object pursued by access was not restricted solely to fighting serious crime; or where access was not subject to prior review by a court or independent administrative authority.", "Ministerio Fiscal (Case C-207/16; ECLI:EU:C:2018:788)", "220. This request for a preliminary ruling arose after Spanish police, in the course of investigating the theft of a wallet and mobile telephone, asked the investigating magistrate to grant them access to data identifying the users of telephone numbers activated with the stolen telephone during a period of twelve days prior to the theft. The investigating magistrate rejected the request on the ground, inter alia, that the acts giving rise to the criminal investigation did not constitute a “serious” offence. The referring court subsequently sought guidance from the CJEU on fixing the threshold of seriousness of offences above which an interference with fundamental rights, such as competent national authorities’ access to personal data retained by providers of electronic communications services, may be justified.", "221. On 2 October 2018 the Grand Chamber of the CJEU ruled that Article 15(1) of Directive 2002/58/EC, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, had to be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entailed an interference with their fundamental rights which was not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime. In particular, it indicated that:", "“In accordance with the principle of proportionality, serious interference can be justified, in areas of prevention, investigation, detection and prosecution of criminal offences, only by the objective of fighting crime which must also be defined as ‘serious’.", "By contrast, when the interference that such access entails is not serious, that access is capable of being justified by the objective of preventing, investigating, detecting and prosecuting ‘criminal offences’ generally.”", "222. It did not consider access to the data which were the subject of the request to be a particularly serious interference because it:", "“only enables the SIM card or cards activated with the stolen mobile telephone to be linked, during a specific period, with the identity of the owners of those SIM cards. Without those data being cross-referenced with the data pertaining to the communications with those SIM cards and the location data, those data do not make it possible to ascertain the date, time, duration and recipients of the communications made with the SIM card or cards in question, nor the locations where those communications took place or the frequency of those communications with specific people during a given period. Those data do not therefore allow precise conclusions to be drawn concerning the private lives of the persons whose data is concerned.”", "Maximillian Schrems v. Data Protection Commissioner (Case C ‑ 362/14; ECLI:EU:C:2015:650)", "223. This request for a preliminary ruling arose from a complaint against Facebook Ireland Ltd which was made to the Irish Data Protection Commissioner by Mr. Schrems, an Austrian privacy advocate. Mr. Schrems challenged the transfer of his data by Facebook Ireland to the United States and the retention of his data on servers located in that country. The Data Protection Commissioner rejected the complaint since, in a decision of 26 July 2000, the European Commission had considered that the United States ensured an adequate level of protection of the personal data transferred (“the Safe Harbour Decision”).", "224. In its ruling of 6 October 2015, the CJEU held that the existence of a Commission decision finding that a third country ensured an adequate level of protection of the personal data transferred could not eliminate or even reduce the powers available to the national supervisory authorities under the Charter or the Data Protection Directive. Therefore, even if the Commission had adopted a decision, the national supervisory authorities had to be able to examine, with complete independence, whether the transfer of a person’s data to a third country complied with the requirements laid down by the Directive.", "225. However, only the CJEU could declare a decision of the Commission invalid. In this regard, it noted that the safe harbour scheme was applicable solely to the United States’ undertakings which adhered to it, and United States’ public authorities were not themselves subject to it. Furthermore, national security, public interest and law enforcement requirements of the United States prevailed over the safe harbour scheme, so that United States’ undertakings were bound to disregard, without limitation, the protective rules laid down by the scheme where they conflicted with such requirements. The safe harbour scheme therefore enabled interference by United States’ public authorities with the fundamental rights of individuals, and the Commission had not, in the Safe Harbour Decision, referred either to the existence, in the United States, of rules intended to limit any such interference, or to the existence of effective legal protection against the interference.", "226. As to whether the level of protection in the United States was essentially equivalent to the fundamental rights and freedoms guaranteed within the European Union, the CJEU found that legislation was not limited to what was strictly necessary where it authorised, on a generalised basis, storage of all the personal data of all the persons whose data were transferred from the European Union to the United States without any differentiation, limitation or exception being made in the light of the objective pursued and without an objective criterion being laid down for determining the limits of the access of the public authorities to the data and of their subsequent use. Therefore, under European Union law legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications had to be regarded as compromising the essence of the fundamental right to respect for private life. Likewise, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, compromised the essence of the fundamental right to effective judicial protection.", "227. Finally, the Court found that the Safe Harbour Decision denied the national supervisory authorities their powers where a person called into question whether the decision was compatible with the protection of the privacy and of the fundamental rights and freedoms of individuals. The Commission had not had competence to restrict the national supervisory authorities’ powers in that way and, consequently, the CJEU held the Safe Harbour Decision to be invalid", "Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems Case (C-311/18; ECLI:EU:C:2020:559)", "228. Following the judgment of the CJEU of 6 October 2015, the referring court annulled the rejection of Mr Schrems’ complaint and referred that decision back to the Commissioner. In the course of the Commissioner’s investigation, Facebook Ireland explained that a large part of personal data were transferred to Facebook Inc. pursuant to the standard data protection clauses set out in the annex to Commission Decision 2010/87/EU, as amended.", "229. Mr Schrems reformulated his complaint, claiming, inter alia, that the United States’ law required Facebook Inc. to make the personal data transferred to it available to certain United States’ authorities, such as the NSA and the Federal Bureau of Investigation. Since those data were used in the context of various monitoring programmes in a manner incompatible with Articles 7, 8 and 47 of the Charter, Decision 2010/87/EU could not justify the transfer of those data to the United States. On this basis, he asked the Commissioner to prohibit or suspend the transfer of his personal data to Facebook Inc.", "230. In a draft decision published on 24 May 2016, the Commissioner took the provisional view that the personal data of European Union citizens transferred to the United States were likely to be consulted and processed by the United States’ authorities in a manner incompatible with Articles 7 and 8 of the Charter and that United States’ law did not provide those citizens with legal remedies compatible with Article 47 of the Charter. The Commissioner found that the standard data protection clauses in the annex to Decision 2010/87/EU were not capable of remedying that defect, since they did not bind the United States’ authorities.", "231. Having considered the United States’ intelligence activities under section 702 of FISA and Executive Order 12333, the High Court concluded that the United States carried out mass processing of personal data without ensuring a level of protection essentially equivalent to that guaranteed by Articles 7 and 8 of the Charter; and that European Union citizens did not have available to them the same remedies as citizens of the United States, with the consequence that United States’ law did not afford European Union citizens a level of protection essentially equivalent to that guaranteed by Article 47 of the Charter. It stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling. It asked, inter alia, whether European Union law applied to the transfer of data from a private company in the European Union to a private company in a third country; if so, how the level of protection in the third country should be assessed; and whether the level of protection afforded by the United States respected the essence of the rights guaranteed by Article 47 of the Charter.", "232. In a judgment of 16 July 2020, the CJEU held that the General Data Protection Regulation (“GDPR”) applied to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, those data were liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security. Moreover, the appropriate safeguards, enforceable rights and effective legal remedies required by the GDPR had to ensure that data subjects whose personal data were transferred to a third country pursuant to standard data protection clauses were afforded a level of protection essentially equivalent to that guaranteed within the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer had to take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country.", "233. Furthermore, unless there was a valid Commission adequacy decision, the competent supervisory authority was required to suspend or prohibit a transfer of data to a third country if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, the standard data protection clauses adopted by the Commission were not or could not be complied with in that third country and the protection of the data transferred (as required by European Union law) could not be ensured by other means.", "234. In order for the Commission to adopt an adequacy decision, it had to find, duly stating reasons, that the third country concerned ensured, by reason of its domestic law or its international commitments, a level of protection of fundamental rights essentially equivalent to that guaranteed in the European Union legal order. In the CJEU’s view, the Safe Harbour decision was invalid. Section 702 of the Foreign Intelligence Security Act (“FISA”) did not indicate any limitations on the power it conferred to implement surveillance programmes for the purposes of foreign intelligence or the existence of guarantees for non-US persons potentially targeted by those programmes. In those circumstances, it could not ensure a level of protection essentially equivalent to that guaranteed by the Charter. Furthermore, as regards the monitoring programmes based on Executive Order 12333, it was clear that that order also did not confer rights which were enforceable against the United States’ authorities in the courts.", "Privacy International v. Secretary of State for Foreign and Commonwealth Affairs and Others (Case C-623/17; ECLI:EU:C:2020:790) and La Quadrature du Net and Others, French Data Network and Others and Ordre des barreaux francophones et germanophone and Others (Cases C ‑ 511/18, C ‑ 512/18 and C-520/18; ECLI:EU:C:2020:791)", "235. On 8 September 2017, the IPT gave judgment in the case of Privacy International, which concerned the acquisition by the intelligence services of bulk communications data under section 94 of the Telecommunications Act 1984 and bulk personal data. The IPT found that, following their avowal, the regimes were compliant with Article 8 of the Convention. However, it identified the following four requirements which appeared to flow from the CJEU judgment in Watson and Others and which seemed to go beyond the requirements of Article 8 of the Convention: a restriction on non-targeted access to bulk data; a need for prior authorisation (save in cases of validly established emergency) before data could be accessed; provision for subsequent notification of those affected; and the retention of all data within the European Union.", "236. On 30 October 2017, the IPT made a request to the CJEU for a preliminary ruling clarifying the extent to which the Watson requirements could apply where the bulk acquisition and automated processing techniques were necessary to protect national security. In doing so, it expressed serious concern that if the Watson requirements were to apply to measures taken to safeguard national security, they would frustrate them and put the national security of Member States at risk. In particular, it noted the benefits of bulk acquisition in the context of national security; the risk that the need for prior authorisation could undermine the intelligence services’ ability to tackle the threat to national security; the danger and impracticality of implementing a requirement to give notice in respect of the acquisition or use of a bulk database, especially where national security was at stake; and the impact an absolute bar on the transfer of data outside the European Union could have on Member States’ treaty obligations.", "237. A public hearing took place on 9 September 2019. The Privacy International case was heard together with cases C‑511/18 and C‑512/18, La Quadrature du Net and Others, and C‑520/18, Ordre des barreaux francophones et germanophone and Others, which also concerned the application of Directive 2002/58 to activities related to national security and the combating of terrorism. Thirteen States intervened in support of the States concerned.", "238. Two separate judgments were handed down on 6 October 2020. In Privacy International the CJEU found that national legislation enabling a State authority to require providers of electronic communications services to forward traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security fell within the scope of the Directive on privacy and electronic communications. The interpretation of that Directive had to take account of the right to privacy, guaranteed by Article 7 of the Charter, the right to protection of personal data, guaranteed by Article 8, and the right to freedom of expression, guaranteed by Article 11. Limitations on the exercise of those rights had to be provided for by law, respect the essence of the rights, and be proportionate, necessary, and genuinely meet the objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. Furthermore, limitations on the protection of personal data must apply only in so far as is strictly necessary; and in order to satisfy the requirement of proportionality, the legislation must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards, so that the persons whose personal data are affected have sufficient guarantees that data will be protected effectively against the risk of abuse.", "239. In the opinion of the CJEU, national legislation requiring providers of electronic communications services to disclose traffic data and location data to the security and intelligence agencies by means of general and indiscriminate transmission – which affected all persons using electronic communications services – exceeded the limits of what was strictly necessary and could not be considered to be justified as required by the Directive on privacy and electronic communications read in light of the Charter.", "240. However, in La Quadrature du Net and Others the CJEU confirmed that while the Directive on privacy and electronic communications, read in light of the Charter, precluded legislative measures which provided for the general and indiscriminate retention of traffic and location data, where a Member State was facing a serious threat to national security that proved to be genuine and present or foreseeable, it did not preclude legislative measures requiring service providers to retain, generally and indiscriminately, traffic and location data for a period limited to what was strictly necessary, but which could be extended if the threat persisted. For the purposes of combating serious crime and preventing serious threats to public security, a Member State could also provide – if it was limited in time to what was strictly necessary – for the targeted retention of traffic and location data, on the basis of objective and non-discriminatory factors according to the categories of person concerned or using a geographical criterion, or of IP addresses assigned to the source of an Internet connection. It was also open to a Member State to carry out a general and indiscriminate retention of data relating to the civil identity of users of means of electronic communication, without the retention being subject to a specific time limit.", "241. Furthermore, the Directive on privacy and electronic communications, read in light of the Charter, did not preclude national rules which required providers of electronic communications services to have recourse, first, to the automated analysis and real-time collection of traffic and location data, and secondly, to the real-time collection of technical data concerning the location of the terminal equipment used, where it was limited to situations in which a Member State was facing a serious threat to national security that was genuine and present or foreseeable, and where recourse to such analysis may be the subject of an effective review by a court or independent administrative body whose decision was binding; and where recourse to the real-time collection of traffic and location data was limited to persons in respect of whom there was a valid reason to suspect that they were involved in terrorist activities and was subject to a prior review carried out either by a court or by an independent administrative body whose decision was binding.", "RELEVANT COMPARATIVE LAW AND PRACTICEContracting States", "Contracting States", "Contracting States", "242. At least seven Contracting States (being Finland, France, Germany, the Netherlands, Sweden, Switzerland and the United Kingdom) officially operate bulk interception regimes over cables and/or the airways.", "243. In one additional State (Norway) a draft law is being debated: if adopted, it will also authorise bulk interception.", "244. Details of the Swedish system can be found in the judgment in the case of Centrum för rättvisa v. Sweden (application no. 35252/08); and details of the German system are set out at paragraphs 247-252 below.", "245. As regards intelligence sharing agreements, at least thirty-nine Contracting States have either concluded intelligence sharing agreements with other States, or have the possibility for such agreements. Two expressly prohibit and two expressly permit the State to ask a foreign power to intercept material on their behalf. In the remaining States, the position on this issue is not clear.", "246. Finally, in most States the applicable safeguards are broadly the same as for domestic operations, with various restrictions on the use of the received data and in some cases an obligation to destroy them if they became irrelevant.", "Judgment of the German Federal Constitutional Court of 19 May 2020 (1 BvR 2835/17)", "247. In this judgment, the Constitutional Court considered whether the Federal Intelligence Service’s powers to conduct strategic (or “signals”) intelligence on foreign telecommunications were in breach of the fundamental rights contained in the Basic Law ( Grundgesetz ).", "248. The regime in question involved the interception of both content and related communications data and aimed only to monitor foreign telecommunications outside of German territory. Such surveillance could be carried out for the purpose of gaining information about topics determined by the Federal Government’s mandate to be significant for the State’s foreign and security policy. It could, however, also be used to target specific individuals. The admissibility and necessity of the orders to conduct such surveillance was controlled by an Independent Panel. According to the Constitutional Court’s judgment, interception was followed by a multi-stage, fully automated filtering and evaluation process. For this purpose, the Federal Intelligence Service used a six-digit number of search terms which were subject to control by an internal sub-unit responsible for ensuring that the link between the search terms employed and the purpose of the data request was explained in a reasonable and comprehensive manner. After the application of the automated filtering process, intercepted material was either deleted or stored and sent for evaluation by an analyst.", "249. The sharing of intercept material with foreign intelligence services was accompanied by a cooperation agreement which had to include usage restrictions and assurances to ensure that data were handled and deleted in accordance with the rule of law.", "250. The Constitutional Court held that the regime in question was not compliant with the Basic Law. While it acknowledged the overriding public interest in effective foreign intelligence gathering, it nevertheless considered, inter alia, that the regime was not restricted to sufficiently specific purposes; it was not structured in a way that allowed for adequate oversight and control; and various safeguards were lacking, particularly with respect to the protection of journalists, lawyers and other persons whose communications required special confidentiality protection.", "251. Regarding the sharing of intelligence obtained through foreign surveillance, the court again found the safeguards to be lacking. In particular, it was not specified with sufficient clarity when weighty interests might justify data transfers. In addition, while the court did not consider it necessary for a recipient State to have comparable rules on the processing of personal data, it nevertheless considered that data could only be transferred abroad if there was an adequate level of data protection and there was no reason to fear that the information would be used to violate fundamental principles of the rule of law. More generally, in the context of intelligence sharing, the court considered that cooperation with foreign States should not be used to undermine domestic safeguards and if the Federal Intelligence Service wished to use search terms provided to it by a foreign intelligence service it should first confirm the existence of the necessary link between the search terms and the purpose of the data request and that the resulting data did not disclose a particular need for confidentiality (for example, because they concerned whistle-blowers or dissidents). Although the court did not exclude the possibility of the bulk transfer of data to foreign intelligence services, it found that this could not be a continuous process based on a single purpose.", "252. Finally, the court found that the surveillance powers under review also lacked an extensive independent and continual oversight serving to ensure that the law was observed and compensating for the virtual absence of safeguards commonly guaranteed under the rule of law. The legislator had to provide for two different types of oversight, which had also to be reflected in the organisational framework: firstly, a body resembling a court, tasked with conducting oversight and deciding in a formal procedure providing ex ante or ex post legal protection; and secondly, an oversight that was administrative in nature and could, on its own initiative, randomly scrutinise the entire process of strategic surveillance as to its lawfulness. In the Constitutional Court´s view, certain key procedural steps would, in principle, require ex ante authorisation by a body resembling a court, namely: the formal determination of the various surveillance measures (exemptions in cases of urgency were not ruled out); the use of search terms, in so far as these directly targeted individuals who might pose a danger and were thus of direct interest to the Federal Intelligence Service; the use of search terms that directly targeted individuals whose communications required special confidentiality protection; and sharing the data of journalists, lawyers and other professions meriting special confidentiality protection with foreign intelligence services.", "Judgment of the Court of Appeal of The Hague of 14 March 2017", "253. A number of individuals and associations argued that the Dutch intelligence and security services were acting unlawfully by receiving data from foreign intelligence and security services, in particular the NSA and GCHQ, which in their view either had obtained or may have obtained the data in an “unauthorised” or “illegal” manner. The plaintiffs did not contend that the activities of the NSA and GCHQ were “unlawful” or “illegal” under domestic law, but rather that the NSA had acted in violation of the International Covenant on Civil and Political Rights (“the ICCPR”) and GCHQ had acted in violation of the Convention. The plaintiffs relied, inter alia, on the “Snowden revelations” (see paragraph 12 above).", "254. The plaintiffs’ claims were dismissed by the Court of The Hague on 23 July 2014 ( ECLI:NL:RBDHA:2014:8966). Their appeal against this judgment was dismissed by the Court of Appeal of The Hague on 14 March 2017 (ECLI:NL:GHDHA:2017:535).", "255. The Court of Appeal held that in principle one had to trust that the United States and the United Kingdom would comply with their obligations under these treaties. That trust only needed to give way if sufficiently concrete circumstances had come to light for it to be assumed that it was not justified.", "256. With respect to the collection of telecommunications data by the NSA, there were no clear indications that the NSA had acted in violation of the ICCPR. In so far as the plaintiffs had sought to argue that the statutory powers underpinning the collection of data were broader than permissible under the ICCPR, they had insufficiently explained in what respect the relevant laws and regulations were inadequate.", "257. With respect to the collection of data by GCHQ, the plaintiffs had not in any way substantiated their claim that GCHQ was acting in breach of the Convention.", "258. The plaintiffs had therefore failed to demonstrate that the manner in which the NSA and GCHQ operated was, at least in principle, in conflict with the ICCPR and the Convention. While it could not be excluded that in a specific case the NSA or GCHQ, or any other foreign intelligence service, may have collected data in a way that violated the ICCPR or the Convention, the principle of trust prevented this mere possibility from implying that the Dutch intelligence services could not receive data from foreign intelligence services without verifying in each individual case that these data had been obtained without violating the relevant treaty obligations.", "259. Finally, the Court of Appeal admitted that, even if the foreign intelligence services acted within the limits of their statutory powers and treaty obligations, the fact that these statutory powers might be broader than those of the Dutch intelligence services could under certain circumstances raise concerns. For example, it was conceivable that the Dutch intelligence services would be acting contrary to the Intelligence and Security Services Act 2002 (or the spirit of it) if they were systematically or knowingly to receive data from foreign intelligence agencies about Dutch residents, while they could not have gathered these data by virtue of their own powers. In that case, the restrictions imposed on the intelligence services by the 2002 Act could become a dead letter. However, the plaintiffs had not substantiated or offered proof that the Dutch intelligence services systematically or consciously exploited such a discrepancy between Dutch law and foreign law.", "260. An appeal on points of law, primarily based on alleged errors in the interpretation of the plaintiffs’ claim by the Court of Appeal and on the extent of the burden of substantiation put on them, was dismissed by the “Hoge Raad” (Supreme Court) on 7 September 2018 (ECLI:NL:HR:2018:1434).", "The United States of America", "261. The United States’ intelligence services operate the Upstream programme pursuant to section 702 of FISA.", "262. The Attorney General and Director of National Intelligence make annual certifications authorising surveillance targeting non-U.S. persons reasonably believed to be located outside the United States of America. They do not have to specify to the FISC the particular non-U.S. persons to be targeted, and there is no requirement to demonstrate probable cause to believe that an individual targeted is an agent of a foreign power. Instead, the section 702 certifications identify categories of information to be collected, which have to meet the statutory definition of foreign intelligence information. Authorised certifications have included information concerning international terrorism, and the acquisition of weapons of mass destruction.", "263. Pursuant to the authorisation, the NSA, with the compelled assistance of service providers, copies and searches streams of Internet traffic as data flows across the Internet. Both telephone calls and Internet communications are collected. Prior to April 2017 the NSA acquired Internet transactions that were “to”, “from”, or “about” a tasked selector. A “to” or “from” communication was a communication for which the sender or a recipient was a user of a section 702 tasked selector. An “about” communication was one in which the tasked selector was referenced within the acquired Internet transaction, but the target was not necessarily a participant in the communication. Collection of “about” communications therefore involved searching the content of communications traversing the Internet. However, from April 2017 onwards the NSA have not been acquiring or collecting communications that are merely “about” a target. In addition the NSA stated that, as part of this curtailment, it would delete the vast majority of previously acquired Upstream Internet communications as soon as practicable.", "264. Section 702 requires the Government to develop targeting and minimization procedures which are kept under review by the FISC.", "265. Executive Order 12333, which was signed in 1981, authorises the collection, retention and dissemination of information obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation. Surveillance of foreign nationals under Executive Order 12333 is not subject to domestic regulation under FISA. It is not known how much data are collected under Executive Order 12333, relative to those collected under section 702.", "THE LAW", "266. Cumulatively, the applicants in the three joined cases complained about the Article 8 and Article 10 compatibility of three discrete regimes: the regime for the bulk interception of communications under section 8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”); the regime for the receipt of intelligence from foreign intelligence services; and the regime for the acquisition of communications data from communications service providers (“CSPs”).", "267. Before considering each of these regimes in turn, the Grand Chamber will first address a preliminary issue.", "PRELIMINARY ISSUE BEFORE THE GRAND CHAMBER", "268. According to the Court’s settled case-law, the “case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment. The “case” referred to the Grand Chamber is the application as it has been declared admissible, as well as the complaints that have not been declared inadmissible (see S .M. v. Croatia [GC], no. 60561/14, § 216, 25 June 2020, and the authorities cited therein).", "269. The applicants in the present case lodged their complaints in 2013, 2014 and 2015 respectively. Those complaints mostly concerned the State’s surveillance activities under RIPA and the related Codes of Practice. The Codes of Practice were subsequently amended. More significantly, the Investigatory Powers Act 2016 (“IPA”) received royal assent on 29 November 2016 and its provisions began to enter into force from December 2016 onwards. The new surveillance regimes set out in the IPA were mostly operational by the summer of 2018. The provisions of Chapter I of Part I of RIPA were repealed in the course of 2018.", "270. The Chamber reviewed the Convention compliance of the law in force on the date it examined the admissibility of the applicants’ complaints; that is, it considered the law as is stood on 7 November 2017. As this is the “application as it has been declared admissible”, the Grand Chamber must similarly limit its examination to the legislative regime as is stood on 7 November 2017. This is apposite, since the legal regimes phased in following the entry into force of the IPA are currently subject to challenge before the domestic courts and it would not be open to the Grand Chamber to examine the new legislation before those courts have first had the opportunity to do so.", "271. The applicants have not challenged the Chamber’s finding that the Investigatory Powers Tribunal (“IPT”) is now an effective remedy for both individual complaints and general complaints concerning the Convention compliance of a surveillance regime, and the Government have not challenged its finding that in the circumstances of the case the applicants had exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. Neither issue therefore falls to be considered by the Grand Chamber.", "THE BULK INTERCEPTION OF COMMUNICATIONSTerritorial jurisdiction", "Territorial jurisdiction", "Territorial jurisdiction", "272. In respect of the section 8(4) regime, the Government raised no objection under Article 1 of the Convention, nor did they suggest that the interception of communications was taking place outside the State’s territorial jurisdiction. Moreover, during the hearing before the Grand Chamber the Government expressly confirmed that they had raised no objection on this ground as at least some of the applicants were clearly within the State’s territorial jurisdiction. Therefore, for the purposes of the present case, the Court will proceed on the assumption that, in so far as the applicants complain about the section 8(4) regime, the matters complained of fell within the jurisdictional competence of the United Kingdom.", "The alleged violation of Article 8 of the Convention", "273. The applicants in all three of the joined cases complained that the regime for the bulk interception of communications was incompatible with Article 8 of the Convention, which reads:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The Chamber judgment", "274. The Chamber expressly recognised that States enjoyed a wide margin of appreciation in deciding what type of interception regime was necessary to protect national security, but considered that the discretion afforded to States in operating an interception regime would necessarily be narrower. In this regard, it observed that the Court had identified six “minimum safeguards” which should be set out in law to avoid abuses of power: the nature of offences which may give rise to an interception order, a definition of the categories of people liable to have their communications intercepted, a limit on the duration of interception, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which intercepted data may or must be erased or destroyed. These safeguards, which were first set out in Huvig v. France, 24 April 1990, § 34, Series A no. 176 B and Kruslin v. France, 24 April 1990, § 35, Series A no. 176 ‑ A, had been applied routinely by the Court in its case-law on the interception of communications and in two cases specifically concerning the bulk interception of communications (see Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI and Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008).", "275. In the Chamber’s view, the decision to operate a bulk interception regime fell within the margin of appreciation afforded to Contracting States. It assessed the operation of the United Kingdom’s bulk interception regime by reference to the six minimum safeguards set out in the preceding paragraph. As the first two safeguards did not readily apply to bulk interception, the Chamber reframed these safeguards, considering first, whether the grounds upon which a warrant could be issued were sufficiently clear; secondly, whether domestic law gave citizens an adequate indication of the circumstances in which their communications might be intercepted; and thirdly, whether domestic law gave citizens an adequate indication of the circumstances in which their communications might be selected for examination. In addition, in light of recent case-law (including Roman Zakharov v. Russia [GC], no. 47143/06, ECHR 2015) the Chamber also had regard to the arrangements for supervising the implementation of secret surveillance measures, the existence of notification mechanisms and any remedies provided for by national law.", "276. It identified the following two areas of concern in the section 8(4) regime: first, the lack of oversight of the selection of bearers for interception, the selectors used for filtering intercepted communications, and the process by which analysts selected intercepted communications for examination; and secondly, the absence of any real safeguards applicable to the searching and selection for examination of related communications data. In view of the independent oversight provided by the Interception of Communications Commissioner (“the IC Commissioner”) and the IPT, and the extensive independent investigations which followed the Edward Snowden revelations, the Chamber was satisfied that the United Kingdom was not abusing its bulk interception powers. Nevertheless, in view of the above-mentioned shortcomings, it held, by a majority, that the bulk interception regime did not meet the “quality of law” requirement and was incapable of keeping the “interference” to what was “necessary in a democratic society”.", "The parties’ submissions", "(a) The applicants", "277. The applicants contended that bulk interception was in principle neither necessary nor proportionate within the meaning of Article 8 of the Convention and, as such, did not fall within a State’s margin of appreciation. Szabó and Vissy v. Hungary, no. 37138/14, 12 January 2016 suggested that a secret surveillance measure had to be “strictly necessary” for safeguarding democratic institutions and obtaining vital intelligence, and it had not been demonstrated that bulk interception satisfied this test. While it was undoubtedly a useful capability, it was clear from the Court’s case-law that not everything that was useful to the intelligence services was permissible in a democratic society (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008).", "278. According to the applicants, separate interferences with the Article 8 right to respect for private life and correspondence occurred with the interception of a communication (content and/or related communications data); its storage; its automated processing; and its examination. While they agreed that a “substantial” interference occurred when intercepted communications were examined, they believed it was wrong to suggest that no “meaningful” interference occurred before this point. On the contrary, the Court’s case-law indicated that even the storage of personal information by the State amounted to a serious interference with an individual’s rights under Article 8 of the Convention (see, for example, Rotaru v. Romania [GC], no. 28341/95, ECHR 2000 V and S. and Marper, cited above). This was especially so when the data were subject to automated processing. In fact, as processing power and machine learning advanced rapidly, the storage and electronic processing of data could by itself be highly intrusive, without any underlying content or related communications data being viewed by an individual. In this regard, the applicants contended that, contrary to the “amorphous soup” relied on by the Government (see paragraph 288 below), the collected data were more akin to a “well organised and indexed library in which you can rapidly find anything you want”. The availability of automatic processing raised particularly severe privacy concerns and did not, as the Government contended, minimise any intrusion.", "279. Should the Grand Chamber consider that the operation of a bulk interception regime was within the State’s margin of appreciation, the applicants argued that the section 8(4) regime was not in accordance with the law. First of all, RIPA was unnecessarily complex, a fact acknowledged by all the independent reviewers; so much so, in fact, that the true nature and scope of the surveillance being undertaken had only become clear following the Edward Snowden revelations. Moreover the “below the waterline” arrangements had been established by GCHQ itself; were neither accessible to nor approved by Parliament; were, as a matter of internal policy, subject to change at the executive’s will; and were not binding. The applicants therefore argued that they should play no part in the Court’s analysis.", "280. In assessing foreseeability, the applicants argued that changes in both society and technology had resulted in a need for the Court to update its existing approach – and enhance the necessary safeguards – to ensure that Convention rights remained practical and effective. The Court’s existing jurisprudence on bulk interception derived from the decision in Weber and Saravia (cited above), but that decision dated back to 2006, when the world was a different place. Smartphones were basic and had limited functionality; Facebook was used mainly by university students; and Twitter was in its infancy. Today people lived major parts of their lives online, using the Internet to communicate, impart ideas, conduct research, conduct relationships, seek medical advice, keep diaries, arrange travel, listen to music, find their way around and conduct financial transactions. Furthermore, modern technology generated an enormous amount of communications data, which were highly revealing even if the related content was not examined, and which were structured in such a way that computers could process them and search for patterns in them faster and more effectively than similar searches over content. For example, mobile phones constantly generated communications data as they contacted the mobile network, producing a record of the location of the phone, allowing the user’s movements to be tracked, and revealing his or her Internet usage.", "281. In the applicants’ view, the updated and enhanced safeguards should include prior independent judicial authorisation of warrants, the choice of selectors and the selection of intercepted material for examination. In addition, where selectors or search terms referred to a specified individual, there should be objective evidence of reasonable suspicion in relation to that person. Finally, there should also be subsequent notification of any clearly defined surveillance target, where it would not cause substantial harm to the public interest.", "282. The applicants identified a number of elements of the United Kingdom’s bulk interception regime which they considered to be inadequate. First of all, there was an absence of independent, let alone judicial, authorisation of surveillance. While judicial authorisation might not in itself be a sufficient safeguard against abuse, this did not support the conclusion that it was not a necessary one. In addition, the applicants believed that there should also be independent, if not judicial, approval of the selectors and search terms used by GCHQ. However, neither the bearers to be intercepted nor the strong selectors were listed in the warrant.", "283. Secondly, the distinction between internal and external communications was not only poorly defined but also meaningless, with most communications likely to be swept up in the “external” category. In the applicants’ opinion, it would have been possible to have provided more meaningful protection to internal communications. For example, in Sweden all internal communications had to be destroyed immediately if they were discovered.", "284. Thirdly, there were limited safeguards for the content of communications of persons known to be in the British Islands, and there were virtually no safeguards for their related communications data. GCHQ was able to retain the entirety of related communications data obtained under the bulk interception regime, subject only to limits on its storage capacity and the maximum retention period. These data – which were extremely intrusive – could be searched according to a factor referable to an individual known to be in the British Islands, without any requirement that the Secretary of State first certify that the search was necessary and proportionate.", "285. Fourthly, the regime did not specify, in law and in detail, the purpose for which material could be examined and, according to the Intelligence and Security Committee of Parliament (“the ISC”), the description of material in the Secretary of State’s certificate was “generic”.", "286. Finally, the applicants submitted that the IC Commissioner only provided part-time oversight and, with limited resources, had been insufficient to guarantee meaningful and robust oversight. The effectiveness of the IPT was similarly limited as it could not provide a remedy for the absence of prior judicial authorisation and, in any case, persons had to have some basis for believing that they had been subject to secret surveillance before the IPT would accept their complaint.", "(b) The Government", "287. The Government submitted that the information obtained under the bulk interception regime was critical to the protection of the United Kingdom from national security threats. Not only did it enable them to uncover hitherto unknown threats, but it also allowed them to conduct surveillance on known targets outside their territorial jurisdiction. The unpredictability of the route by which electronic communications were transmitted (and the fact that those communications were broken down into packets which could be transmitted via different routes) meant that in order to obtain even a small proportion of the communications of known targets overseas, it was necessary to intercept all the communications flowing over a selection of bearers. The bulk interception power had been the subject of detailed and repeated consideration by a series of independent bodies in recent years and there was a unanimity of view that there was not “any alternative” ... “or combination of alternatives sufficient to substitute for the bulk interception power”. According to the Government, States should rightly be afforded a broad margin of appreciation in judging what systems were necessary to protect the general community from such threats, and in subjecting those systems to scrutiny the Court should take care not to undermine the effectiveness of a means of obtaining life-saving intelligence which could not be gathered in any other way.", "288. The Government contended that the interception of communications under the bulk interception regime would only have resulted in a meaningful interference with a person’s Article 8 rights if his or her communications were either selected for examination (that is, included on an index of communications from which an analyst could potentially choose items to inspect) or actually examined by an analyst. His or her rights could not be said to have been infringed to any more than the most minimal degree if a copy of a communication was either discarded in near-real time or held for a few days at most in a general “amorphous soup” of data; in other words, if it was searched using selectors and queries but it was not examined or used. The overwhelming bulk of communications flowing over each intercepted cable could not be “selected for examination”, and would therefore have to be discarded.", "289. With regard to the necessary safeguards, the Government agreed with the Chamber that it was appropriate to assess a bulk interception regime by reference to the same standards that had been developed by the Court in cases concerning the targeted interception of communications. The Government also largely agreed with the Chamber’s assessment of the section 8(4) regime by reference to those standards. They reiterated that there was no possibility of any communications being viewed by an analyst unless and until they had been selected for examination following the automated sifting process; selection and any ensuing examination were very carefully controlled; no intelligence report could be made of any communications or communications data unless they had been viewed by an analyst; section 16(2) of RIPA required the Secretary of State to certify the necessity and proportionality of searching the content of communications according to a factor referable to an individual known to be in the British Islands; and the combined oversight functions of the ISC, the IC Commissioner and the IPT satisfied the requirements of the Convention. At all stages of the bulk interception process, the applicable safeguards were built around the Convention concepts of necessity and proportionality. Those fundamental principles governed the obtaining of the material in the first place, its examination, handling, storage, disclosure, retention and deletion.", "290. In respect of those aspects of the regime which, according to the Chamber, had not provided adequate safeguards against abuse, the Government provided further clarification. First of all, although they acknowledged that the warrant did not specify the individual bearers to be targeted, as there would be serious impracticalities and difficulties with including this information in the warrant, it nevertheless contained a description of what the interception was going to involve and a description of the sorts of bearers that would be intercepted. The IC Commissioner was briefed regularly by GCHQ about the basis on which bearers were selected for interception.", "291. Secondly, they clarified that the choice of selectors was in fact carefully controlled. Whenever a new selector was added to the system, the analyst adding it had to complete a written record, explaining why it was necessary and proportionate to apply the selector for the purposes within the Secretary of State’s certificate. This was done by the selection of text from a drop down menu, followed by the addition, by the analyst, of free text explaining why it was necessary and proportionate to make the search. In the case of a “strong selector”, the analyst had to explain, for example, the justification for seeking the communications of a particular target; how the selector related to the target’s method of communicating; and why selection of the relevant communications would not involve an unacceptable degree of collateral intrusion into privacy. In the case of a new “complex query”, the analyst had to develop selection criteria most likely to identify communications bearing intelligence of value; and similarly had to explain why the criteria were justified, and why their use would be necessary and proportionate for the purposes within the Secretary of State’s certificate. Selectors used for target development or target discovery could remain in use for a maximum of three months before a review was necessary.", "292. Any selector had to be as specific as possible in order to select the minimum material necessary for the intelligence purpose, and be proportionate. If, through analysis, it was established that selectors were not being used by their intended target, prompt action had to be taken to remove them from relevant systems. The use of selectors had to be recorded in an approved location that enabled them to be audited; created a searchable record of selectors in use; and enabled oversight by the IC Commissioner. Robust independent oversight of selectors and search criteria was therefore within the IC Commissioner’s powers: by the time of his 2014 report he had specifically put in place systems and processes to make sure that actually occurred, and, following the Chamber judgment, the Government had been working with the IC Commissioner’s Office to ensure that there would be enhanced oversight of selectors and search criteria under IPA. However, the Government asserted that prior judicial authorisation would not have been possible for each selector without fundamentally altering their ability to discover and repel threats. GCHQ systems were necessarily tasked with many thousands of selectors which sometimes had to change rapidly in order to keep pace with fast moving investigations and threat discoveries.", "293. Communications to which only the “strong selector” process was applied were discarded immediately unless they matched the strong selector. Communications to which the “complex query” process was also applied were retained for a few days, in order to allow the process to be carried out, and were then automatically deleted, unless they had been selected for examination. Communications which had been selected for examination could be retained only where it was necessary and proportionate to do so. The default position was that the retention period for selected communications was no longer than a few months, after which they were automatically deleted (although if the material had been cited in intelligence reporting, the report was retained). In exceptional circumstances a case could be made to retain selected communications for longer, as provided for in the Interception of Communications Code of Practice (“the IC Code”).", "294. The Government reiterated that any analysts who examined selected material had to be specially authorised to do so, and received mandatory regular training, including training on the requirements of necessity and proportionality. They were also vetted. Before they examined the material, they had to create a record setting out why access to the material was required, why it was consistent with the Secretary of State’s certificate and the requirements of RIPA; and why it was proportionate (including considerations of any circumstances likely to give rise to a degree of collateral infringement of privacy). Unless such a record had been created, GCHQ’s systems did not permit access to material.", "295. As to the safeguards in respect of related communications data, the Government argued that examining the content of the most sensitive and private communications always involved a greater degree of intrusion than examining related communications data, irrespective of whether those data were aggregated to provide a detailed picture of where an individual was located, what websites he or she visited, or with whom he or she chose to communicate. On that basis, it remained appropriate for the rules governing content to be more exacting than those governing related communications data. Nevertheless, the Government accepted that the Secretary of State should be required to certify the necessity of examining related communications data under a bulk warrant pursuant to a regime analogous (though not identical) to the certification regime in place for the content of communications under section 16 of RIPA. The new Code of Practice was to be amended to this effect.", "296. Until then, however, communications data were subject to the same initial filtering process as content, by which GCHQ’s processing systems automatically discarded certain types of communications in near-real time. They were then subjected by automated means to simple or complex queries. However, there were two main differences between the treatment of content and the treatment of related communications data. First of all, the safeguards in section 16 – which provided that, in order to be examined, material had to fall within the Secretary of State’s certificate and could not be selected according to a factor referable to an individual known for the time being to be in the British Islands and the purpose of which was to identify his or her communications – only applied to content. According to the Government, it would not be practicable to apply this safeguard to related communications data. Significantly more queries were made against communications data (as many as several thousand in one week), and in a large number of cases the identity of the person to whom the data might relate was unknown. In addition, related communications data often had a temporal quality, and having to delay conducting searches of such data pending the acquisition of an individual authority would seriously risk undermining their utility in intelligence terms. Requiring the Secretary of State to certify necessity and proportionality in each individual case, in advance of the searches being undertaken, could not possibly be done.", "297. Secondly, related communications data which were not selected for examination were not immediately discarded. The principal reason for this was that communications data were to a large extent used to discover threats or targets of which GCHQ might previously have been unaware. They therefore required more analytical work, over a lengthy period, to discover “unknown unknowns”. That discovery could very often involve an exercise of piecing together disparate small items of communications data to form a “jigsaw” revealing a threat; and would include the possible examination of items that initially appeared to be of no intelligence interest. Discarding unselected communications data immediately, or after a few days only, would render that exercise impossible.", "298. Nevertheless, the Government confirmed that before any analyst could examine any communications data at all, they had to complete a record explaining why it was necessary and proportionate to do so, in pursuit of GCHQ’s statutory functions. An auditable record was therefore produced, setting out the justification for examination, and these records were available for inspection. Moreover, no intelligence reporting could be made on the basis of communications data unless and until they had been examined. Finally, related communications could be retained only where it was necessary and proportionate to do so, for a maximum period of several months, unless an exceptional case to retain for longer was made. Otherwise related communications data were automatically deleted once the maximum period had expired.", "299. Finally, in light of the Chamber judgment the Government confirmed that it was taking steps to ensure that where non-content data were to be selected for examination by reference to a person believed to be in the British Islands, the selection had to be certified by the Secretary of State as necessary and proportionate on a specific thematic basis. Pending the introduction of a “thematic” certification regime, by means of changes to the code governing the interception of communications under IPA, GCHQ had been working with the IC Commissioner’s office to generate management information that could be used by the IC Commissioner to enhance ex post facto oversight of related communications data. In particular, GCHQ had made changes to its systems so that in any case where an analyst intended to select secondary data for examination relating to a person believed to be in the British Islands by reference to a factor relating to that person, that case would be flagged along with the supporting justification for selecting the relevant data.", "Third party submissions", "(a) The Government of France", "300. The French Government submitted that in the face of threats such as international and cross-border crime, and in view of the increasing sophistication of communication technologies, the strategic bulk surveillance of communications was of vital importance to States in protecting democratic society. Moreover, it was wrong to assume that bulk interception constituted a greater intrusion into the private life of an individual than targeted interception, which by its nature was more likely to result in the acquisition and examination of a large volume of the subject’s communications. In their view, there was no reason why the criteria set out by the Court in Weber and Saravia (cited above) could not be considered equally relevant to the effective supervision of data interception and processing under a bulk interception regime. These criteria should, however, be applied in the context of an overall assessment, weighing any shortcomings against existing guarantees and the effectiveness of the safeguards against abuse.", "301. There was no justification for adding the need for “reasonable suspicion” to these criteria. The authorities were generally not in a position to know in advance whose electronic communications it might be useful for them to monitor in the interests of law and order or national security, and such a requirement would deprive the surveillance measure of all operational interest. Moreover, in the Government’s view there was no need for a judicial authority to be involved in the authorisation of such intelligence operations, or to carry out ex post facto control, provided that the authorising authority was independent of the executive, the supervisory body was vested with sufficient powers and competence to exercise effective and continuous control, and the two bodies were independent of one another.", "302. Finally, the intervening Government submitted that metadata were by their nature less intrusive than content, as they clearly contained less sensitive information about the behaviour and the private life of the person concerned. This view was supported by the report of the Venice Commission (see paragraphs 196 ‑ 201 above) and the CJEU in Digital Rights Ireland (see paragraphs 209-213 above).", "(b) The Government of the Kingdom of the Netherlands", "303. The Government of the Kingdom of the Netherlands also submitted that bulk interception was necessary to identify hitherto unknown threats to national security. In order to protect national security, intelligence services needed the tools to investigate emerging threats in a timely and effective manner. For this they needed the powers necessary to enable them to detect and/or prevent not only terrorist activities (such as attack planning, recruitment, propaganda and funding), but also intrusive State or non-State actors’ cyber activities aimed at disrupting democracy (for example, by influencing national elections or obstructing investigations by national and international organisations. An example of this was the attempted hacking of the investigation of the use of chemical weapons in Syria by the Organisation for the Prohibition of Chemical Weapons in The Hague). Moreover, the increasing dependency of vital sectors on digital infrastructures meant that such sectors, including water management, energy, telecoms, transport, logistics, harbours and airports, were increasingly vulnerable to cyber-attacks. The consequences of disruption in such sectors would have a deep impact on society, far beyond the substantial monetary damage.", "304. A complicating factor in all of this was the development of new means of digital communication and the exponential increase of data that were transmitted and stored globally. In many instances the nature and origin of a particular threat was unknown and the use of targeted interception was not feasible. However, while bulk interception was not as tightly defined as targeted interception, it was never completely untargeted. Rather, it was applied for specific aims.", "305. In the intervening Government’s view, there was no need for additional or updated minimum safeguards; those previously identified by the Court were sufficiently robust and “future proof”. The additional requirements proposed by the applicants before the Chamber – in particular, the requirement to demonstrate “reasonable suspicion” – would unacceptably reduce the effectiveness of the intelligence services without providing any meaningful additional protection of individuals’ fundamental rights.", "306. Furthermore, according to the intervening Government, it was still relevant to distinguish between content and communications data, as the content of communications was likely to be more sensitive than communications data. The intervening Government also agreed with the Chamber that it was wrong automatically to assume that bulk interception constituted a greater intrusion into the private life of an individual than targeted interception, since with targeted interception it was likely that all, or nearly all, of the intercepted communications would be analysed. This was not true of bulk interception, where restrictions on the examination and use of data determined the intrusiveness of the interception on the individuals’ fundamental rights.", "307. Finally, the intervening Government submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception in view of the high degree of uncertainty regarding the source of a threat. Ex post oversight provided sufficient safeguards.", "(c) The Government of the Kingdom of Norway", "308. The Norwegian Government submitted that with regard to the decision of States to introduce and operate some form of bulk interception regime for national security purposes, the margin of appreciation had to be wide. This was because intelligence services had to keep pace with the rapid advances in information and communications technology. Hostile actors changed their devices and digital identities at a pace which made it difficult to track them over time. It was also difficult to discover and counteract hostile cyber operations in a timely manner without tools capable of discovering anomalies and relevant signatures. It was therefore without doubt that modern capacities like bulk interception were needed in order to find unknown threats operating in the digital domain, and to enable the services to discover and follow relevant intelligence threats.", "309. In the view of the Norwegian Government, the Court’s oversight should be based on an overall assessment of whether the procedural safeguards against abuse were adequate and sufficient. It should avoid absolute requirements. It should also not apply criteria that would undermine indirectly the wide margin of appreciation afforded to States in deciding to operate a bulk interception regime for national security reasons. A “reasonable suspicion” or “subsequent notification” requirement would have this effect.", "310. Finally, the intervening Government encouraged the Court to refrain from importing concepts and criteria from the CJEU. First of all, at the relevant time nineteen Council of Europe Contracting States were not members of the European Union. Secondly, while the Convention and the Charter of Fundamental Rights had many features in common, there were also differences, most notably Article 8 of the Charter which contained a right to the protection of personal data. The CJEU also formulated “proportionality” differently, using a “strict necessity” method which did not compare to that used by the Court.", "(d) The United Nations’ Special Rapporteur on the promotion of the right to freedom of opinion and expression", "311. The Special Rapporteur argued that surveillance cast a shadow over communications, such that individuals might refrain from engaging in activities protected under international human rights law. That was not to say that all surveillance operations constituted a violation of human rights law; some might be tolerable when the conditions of legality, necessity and legitimacy were met. However, all types of surveillance required a rigorous evaluation of whether they were consistent with the norms of international human rights law.", "312. In the Special Rapporteur’s view, the right to privacy had to be protected not only as a fundamental right independent of all others, but also in order to protect other rights, such as freedom of opinion and expression, which depended on a zone of privacy for their enjoyment. As the Special Rapporteur had indicated in his 2015 report, surveillance systems might undermine the right to form an opinion as the fear of unwilling disclosure of online activity could deter individuals from accessing information.", "313. The UN High Commissioner’s report counselled against distinguishing metadata from content when examining the severity of the interference with rights protected under the International Covenant on Civil and Political Rights (“ICCPR”). Her 2014 report indicated that the aggregation of metadata by way of Government surveillance might reveal more private detail about an individual than perhaps even a private communication would. The Special Rapporteur further indicated that the distinction between internal and external communications might run counter to the ICCPR. The ICCPR placed States under a duty to respect and ensure all the rights therein to all within their jurisdiction, and in its latest General Comment the Human Rights Committee interpreted this standard as including State activities that directly impacted rights outside its own territory.", "314. Finally, the Special Rapporteur emphasised the importance of safeguards to protect against abuse, in particular, the need for a court, tribunal or other adjudicatory body to supervise the application of an interference measure; subsequent notification of surveillance subjects; publication of information on the scope of surveillance techniques and powers; and the right to effective remedies in case of abuse.", "(e) Access Now", "315. Access Now submitted that the mass surveillance at issue in the present case failed to comply with the ICCPR and the International Principles on the Application of Human Rights to Communications Surveillance since the United Kingdom had not demonstrated that such surveillance was strictly necessary or proportionate. They further contended that surveillance programmes should not be considered independently but should instead be viewed in relation to the entirety of a nation’s surveillance activities as machine learning, through which mathematical algorithms could draw inferences from collections of data, had increased the invasiveness of big data sets and data mining.", "(f) Article 19", "316. Article 19 submitted that the indiscriminate and suspicionless collection, analysis and retention of individuals’ communications was inherently disproportionate. In Article 19’s opinion, only targeted surveillance based on reasonable suspicion and authorised by a judge would constitute a legitimate restriction on privacy rights.", "(g) European Digital Rights (“EDRi”) and other organisations active in the field of human rights in the information society", "317. EDRi and others argued that the present case offered the Court a crucial opportunity to revise its framework for the protection of metadata. Governments had built their surveillance programmes based on the distinction drawn between content and metadata in Malone v. the United Kingdom, 2 August 1984, Series A no. 82, but at the time that case was decided neither the Internet nor mobile phones existed. Today, metadata could paint a detailed and intimate picture of a person: they allowed for mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with. Moreover, the level of detail that could be gleaned was magnified when analysed on a large scale. Indeed, Stewart Baker, general counsel of the NSA, had indicated that metadata could disclose everything about someone’s life, and that if you had enough metadata, you would not need content. As a result, different degrees of protection should not be afforded to personal data based on the arbitrary and irrelevant distinction between content and metadata, but rather on the inferences that could be drawn from the data.", "(h) Open Society Justice Initiative (“OSJI”)", "318. OSJI submitted that both the amount of data available for interception today and governments’ appetite for data far exceeded what was possible in the past. Consequently, bulk interception was a particularly serious interference with privacy which could, through its “chilling effect”, potentially interfere with other rights such as freedom of expression and freedom of association. To be lawful, bulk interception should therefore satisfy several preconditions: the governing law had to be sufficiently precise; the scope of the information gathered had to be limited by time and geography; and information should only be gathered based on “reasonable suspicion”.", "(i) The Helsinki Foundation for Human Rights (“HFHR”)", "319. The HFHR described their experience challenging the surveillance of communications by public authorities in Poland, which culminated in the Constitutional Tribunal finding certain aspects of the relevant legislation to be unconstitutional. The legislation was subsequently amended.", "(j) The International Commission of Jurists (“ICJ”)", "320. The ICJ submitted that in light of the scale and scope of the interference with privacy entailed in mass surveillance, the distinction between metadata and content had become out-dated. Furthermore, the fact that, in a mass surveillance operation, elements of the interference with rights might take place outside a State’s territorial jurisdiction did not preclude that State’s responsibility, since its control over the information was sufficient to establish jurisdiction.", "(k) The Law Society of England and Wales", "321. The Law Society expressed deep concern about the implications of the section 8(4) regime for the principle of legal professional privilege. In its view, the regime permitted the interception of legally privileged and confidential communications between lawyers and clients, even when both were in the United Kingdom. It also permitted the routine collection of metadata attaching to such communications. Furthermore, once intercepted these legally privileged communications could be used, provided that the primary purpose and object of the warrant was the collection of external communications. This arrangement – and the absence of adequate constraints on the use of such material – was apt to have a potentially severe chilling effect on the frankness and openness of lawyer-client communications.", "The Court’s assessment", "(a) Preliminary remarks", "322. The present complaint concerns the bulk interception of cross ‑ border communications by the intelligence services. While it is not the first time the Court has considered this kind of surveillance (see Weber and Saravia and Liberty and Others, both cited above), in the course of the proceedings it has become apparent that the assessment of any such regime faces specific difficulties. In the current, increasingly digital, age the vast majority of communications take digital form and are transported across global telecommunications networks using a combination of the quickest and cheapest paths without any meaningful reference to national borders. Surveillance which is not targeted directly at individuals therefore has the capacity to have a very wide reach indeed, both inside and outside the territory of the surveilling State. Safeguards are therefore pivotal and yet elusive. Unlike the targeted interception which has been the subject of much of the Court’s case-law, and which is primarily used for the investigation of crime, bulk interception is also – perhaps even predominantly – used for foreign intelligence gathering and the identification of new threats from both known and unknown actors. When operating in this realm, Contracting States have a legitimate need for secrecy which means that little if any information about the operation of the scheme will be in the public domain, and such information as is available may be couched in terminology which is obscure and which may vary significantly from one State to the next.", "323. While technological capabilities have greatly increased the volume of communications traversing the global Internet, the threats being faced by Contracting States and their citizens have also proliferated. These include, but are not limited to, global terrorism, drug trafficking, human trafficking and the sexual exploitation of children. Many of these threats come from international networks of hostile actors with access to increasingly sophisticated technology enabling them to communicate undetected. Access to such technology also permits hostile State and non-State actors to disrupt digital infrastructure and even the proper functioning of democratic processes through the use of cyberattacks, a serious threat to national security which by definition exists only in the digital domain and as such can only be detected and investigated there. Consequently, the Court is required to carry out its assessment of Contracting States’ bulk interception regimes, a valuable technological capacity to identify new threats in the digital domain, for Convention compliance by reference to the existence of safeguards against arbitrariness and abuse, on the basis of limited information about the manner in which those regimes operate.", "(b) The existence of an interference", "324. The Government do not dispute that there has been an interference with the applicants’ Article 8 rights, although they submitted that for the purposes of Article 8 of the Convention the only meaningful interference could have occurred when communications were selected for examination.", "325. The Court views bulk interception as a gradual process in which the degree of interference with individuals’ Article 8 rights increases as the process progresses. Bulk interception regimes may not all follow exactly the same model, and the different stages of the process will not necessarily be discrete or followed in strict chronological order. Nevertheless, subject to the aforementioned caveats, the Court considers that the stages of the bulk interception process which fall to be considered can be described as follows:", "(a) the interception and initial retention of communications and related communications data (that is, the traffic data belonging to the intercepted communications);", "(b) the application of specific selectors to the retained communications/related communications data;", "(c) the examination of selected communications/related communications data by analysts; and", "(d) the subsequent retention of data and use of the “final product”, including the sharing of data with third parties.", "326. At what the Court has taken to be the first stage, electronic communications (or “packets” of electronic communications) will be intercepted in bulk by the intelligence services. These communications will belong to a large number of individuals, many of whom will be of no interest whatsoever to the intelligence services. Some communications of a type unlikely to be of intelligence interest may be filtered out at this stage.", "327. The initial searching, which is mostly automated, takes place at what the Court has taken to be the second stage, when different types of selectors, including “strong selectors” (such as an email address) and/or complex queries are applied to the retained packets of communications and related communications data. This may be the stage where the process begins to target individuals through the use of strong selectors.", "328. At what the Court has taken to be the third stage, intercept material is examined for the first time by an analyst.", "329. What the Court has taken to be the final stage is when the intercept material is actually used by the intelligence services. This may involve the creation of an intelligence report, the disseminating of the material to other intelligence services within the intercepting State, or even the transmission of material to foreign intelligence services.", "330. The Court considers that Article 8 applies at each of the above stages. While the initial interception followed by the immediate discarding of parts of the communications does not constitute a particularly significant interference, the degree of interference with individuals’ Article 8 rights will increase as the bulk interception process progresses. In this regard, the Court has clearly stated that even the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116), and that the need for safeguards will be all the greater where the protection of personal data undergoing automatic processing is concerned (see S. and Marper, cited above, § 103). The fact that the stored material is in coded form, intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons, can have no bearing on that finding (see Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000 ‑ II and S. and Marper, cited above, §§ 67 and 75). Finally, at the end of the process, where information about a particular person will be analysed or the content of the communications is being examined by an analyst, the need for safeguards will be at its highest. This approach of the Court is in line with the finding of the Venice Commission, which in its report on the Democratic Oversight of Signals Intelligence Agencies considered that in bulk interception the main interference with privacy occurred when stored personal data were processed and/or accessed by the agencies (see paragraph 196 above).", "331. Thus, the degree of interference with privacy rights will increase as the process moves through the different stages. In examining whether this increasing interference was justified, the Court will carry out its assessment of the section 8 (4) regime on the basis of this understanding of the nature of the interference.", "(c) Whether the interference was justified", "(i) General principles relating to secret measures of surveillance, including the interception of communications", "332. Any interference with an individual’s Article 8 rights can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that paragraph refers and is necessary in a democratic society in order to achieve any such aim (see Roman Zakharov, cited above, § 227; see also Kennedy v. the United Kingdom, no. 26839/05, § 130, 18 May 2010). The wording “in accordance with the law” requires the impugned measure to have some basis in domestic law (as opposed to a practice which does not have a specific legal basis – see Heglas v. the Czech Republic, no. 5935/02, § 74, 1 March 2007). It must also be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must therefore be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov, cited above, § 228; see also, among many other authorities, Rotaru, cited above, § 52; S. and Marper, cited above, § 95, and Kennedy, cited above, § 151).", "333. The meaning of “foreseeability” in the context of secret surveillance is not the same as in many other fields. In the special context of secret measures of surveillance, such as the interception of communications, “foreseeability” cannot mean that individuals should be able to foresee when the authorities are likely to resort to such measures so that they can adapt their conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on secret surveillance measures, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Roman Zakharov, cited above, § 229; see also Malone, cited above, § 67; Leander, cited above, § 51; Huvig, cited above, § 29; Kruslin, cited above, § 30; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 75, 28 June 2007). Moreover, the law must indicate the scope of any discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 230; see also, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; Kruslin, cited above, § 30; and Weber and Saravia, cited above, § 94).", "334. In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements. The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236; see also Kennedy, cited above, § 155).", "335. In this regard it should be reiterated that in its case-law on the interception of communications in criminal investigations, the Court has developed the following minimum requirements that should be set out in law in order to avoid abuses of power: (i) the nature of offences which may give rise to an interception order; (ii) a definition of the categories of people liable to have their communications intercepted; (iii) a limit on the duration of interception; (iv) the procedure to be followed for examining, using and storing the data obtained; (v) the precautions to be taken when communicating the data to other parties; and (vi) the circumstances in which intercepted data may or must be erased or destroyed (see Huvig, cited above, § 34; Kruslin, cited above, § 35; Valenzuela Contreras, cited above, § 46; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76). In Roman Zakharov (cited above, § 231) the Court confirmed that the same six minimum safeguards also applied in cases where the interception was for reasons of national security; however, in determining whether the impugned legislation was in breach of Article 8, it also had regard to the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law (see Roman Zakharov, cited above, § 238).", "336. Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights. In a field where abuse in individual cases is potentially so easy and could have such harmful consequences for democratic society as a whole, the Court has held that it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Roman Zakharov, cited above, § 233; see also Klass and Others v. Germany, 6 September 1978, §§ 55 and 56, Series A no. 28).", "337. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is a relevant factor in assessing the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of surveillance powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Roman Zakharov, cited above, § 234; see also Klass and Others, cited above, § 57, and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that he or she has been subject to surveillance can apply to courts, whose jurisdiction does not depend on notification to the surveillance subject of the measures taken (see Roman Zakharov, cited above, § 234; see also Kennedy, cited above, § 167).", "338. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has recognised that the national authorities enjoy a wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security (see Weber and Saravia, cited above, § 106).", "339. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security (and other essential national interests) may undermine or even destroy the proper functioning of democratic processes under the cloak of defending them, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Others, cited above, §§ 49, 50 and 59, Weber and Saravia, cited above, § 106 and Kennedy, cited above, §§ 153 and 154).", "(ii) Whether there is a need to develop the case-law", "340. In Weber and Saravia and Liberty and Others (cited above) the Court accepted that bulk interception regimes did not per se fall outside the States’ margin of appreciation. In view of the proliferation of threats that States currently face from networks of international actors, using the Internet both for communication and as a tool, and the existence of sophisticated technology which would enable these actors to avoid detection (see paragraph 323 above), the Court considers that the decision to operate a bulk interception regime in order to identify threats to national security or against essential national interests is one which continues to fall within this margin.", "341. In both Weber and Saravia and Liberty and Others (cited above) the Court applied the above-mentioned six minimum safeguards developed in its case-law on targeted interception (see paragraph 335 above). However, while the bulk interception regimes considered in those cases were on their face similar to that in issue in the present case, both cases are now more than ten years old, and in the intervening years technological developments have significantly changed the way in which people communicate. Lives are increasingly lived online, generating both a significantly larger volume of electronic communications, and communications of a significantly different nature and quality, to those likely to have been generated a decade ago (see paragraph 322 above). The scope of the surveillance activity considered in those cases would therefore have been much narrower.", "342. This is equally so with related communications data. As the ISR observed in its report, greater volumes of communications data are currently available on an individual relative to content, since every piece of content is surrounded by multiple pieces of communications data (see paragraph 159 above). While the content might be encrypted and, in any event, may not reveal anything of note about the sender or recipient, the related communications data could reveal a great deal of personal information, such as the identities and geographic location of the sender and recipient and the equipment through which the communication was transmitted. Furthermore, any intrusion occasioned by the acquisition of related communications data will be magnified when they are obtained in bulk, since they are now capable of being analysed and interrogated so as to paint an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who a person interacted with (see paragraph 317 above).", "343. More importantly, however, in Weber and Saravia and Liberty and Others the Court did not expressly address the fact that it was dealing with surveillance of a different nature and scale from that considered in previous cases. Nonetheless, targeted interception and bulk interception are different in a number of important respects.", "344. To begin with, bulk interception is generally directed at international communications (that is, communications physically travelling across State borders), and while the interception and even examination of communications of persons within the surveilling State might not be excluded, in many cases the stated purpose of bulk interception is to monitor the communications of persons outside the State’s territorial jurisdiction, which could not be monitored by other forms of surveillance. For example, the German system aims only to monitor foreign telecommunications outside of German territory (see paragraph 248 above). In Sweden, the intercept material cannot relate to signals where both the sender and recipient are in Sweden (see today’s judgment in the case of Centrum för rättvisa v. Sweden (application no. 35252/08)).", "345. Moreover, as already noted, the purposes for which bulk interception may be employed would appear to be different. In so far as the Court has considered targeted interception, it has, for the most part, been employed by respondent States for the purposes of investigating crime. However, while bulk interception may be used to investigate certain serious crimes, Council of Europe member States operating a bulk interception regime appear to use it for the purposes of foreign intelligence gathering, the early detection and investigation of cyberattacks, counter-espionage and counter-terrorism (see paragraphs 303, 308 and 323 above).", "346. While bulk interception is not necessarily used to target specified individuals, it evidently can be – and is – used for this purpose. However, when this is the case, the targeted individuals’ devices are not monitored. Rather, individuals are “targeted” by the application of strong selectors (such as their email addresses) to the communications intercepted in bulk by the intelligence services. Only those “packets” of the targeted individuals’ communications which were travelling across the bearers selected by the intelligence services will have been intercepted in this way, and only those intercepted communications which matched either a strong selector or complex query could be examined by an analyst.", "347. As with any interception regime, there is of course considerable potential for bulk interception to be abused in a manner adversely affecting the right of individuals to respect for private life. While Article 8 of the Convention does not prohibit the use of bulk interception to protect national security and other essential national interests against serious external threats, and States enjoy a wide margin of appreciation in deciding what type of interception regime is necessary, for these purposes, in operating such a system the margin of appreciation afforded to them must be narrower and a number of safeguards will have to be present. The Court has already identified those safeguards which should feature in a Convention-compliant targeted interception regime. While those principles provide a useful framework for this exercise, they will have to be adapted to reflect the specific features of a bulk interception regime and, in particular, the increasing degrees of intrusion into the Article 8 rights of individuals as the operation moves through the stages identified in paragraph 325 above.", "(iii) The approach to be followed in bulk interception cases", "348. It is clear that the first two of the six “minimum safeguards” which the Court, in the context of targeted interception, has found should be defined clearly in domestic law in order to avoid abuses of power (that is, the nature of offences which may give rise to an interception order and the categories of people liable to have their communications intercepted: see paragraph 335 above), are not readily applicable to a bulk interception regime. Similarly, the requirement of “reasonable suspicion”, which can be found in the Court’s case-law on targeted interception in the context of criminal investigations is less germane in the bulk interception context, the purpose of which is in principle preventive, rather than for the investigation of a specific target and/or an identifiable criminal offence. Nevertheless, the Court considers it imperative that when a State is operating such a regime, domestic law should contain detailed rules on when the authorities may resort to such measures. In particular, domestic law should set out with sufficient clarity the grounds upon which bulk interception might be authorised and the circumstances in which an individual’s communications might be intercepted. The remaining four minimum safeguards defined by the Court in its previous judgments — that is, that domestic law should set out a limit on the duration of interception, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which intercepted data may or must be erased or destroyed — are equally relevant to bulk interception.", "349. In its case-law on targeted interception, the Court has had regard to the arrangements for supervising and reviewing the interception regime (see Roman Zakharov, cited above, §§ 233-234). In the context of bulk interception the importance of supervision and review will be amplified, because of the inherent risk of abuse and because the legitimate need for secrecy will inevitably mean that, for reasons of national security, States will often not be at liberty to disclose information concerning the operation of the impugned regime.", "350. Therefore, in order to minimise the risk of the bulk interception power being abused, the Court considers that the process must be subject to “end-to-end safeguards”, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the operation are being defined; and that the operation should be subject to supervision and independent ex post facto review. In the Court’s view, these are fundamental safeguards which will be the cornerstone of any Article 8 compliant bulk interception regime (see also the report of the Venice Commission, at paragraph 197 above, which similarly found that two of the most significant safeguards in a bulk interception regime were the authorisation and oversight of the process).", "351. Turning first to authorisation, the Grand Chamber agrees with the Chamber that while judicial authorisation is an “important safeguard against arbitrariness” it is not a “necessary requirement” (see paragraphs 318-320 of the Chamber judgment). Nevertheless, bulk interception should be authorised by an independent body; that is, a body which is independent of the executive.", "352. Furthermore, in order to provide an effective safeguard against abuse, the independent authorising body should be informed of both the purpose of the interception and the bearers or communication routes likely to be intercepted. This would enable the independent authorising body to assess the necessity and proportionality of the bulk interception operation and also to assess whether the selection of bearers is necessary and proportionate to the purposes for which the interception is being conducted.", "353. The use of selectors – and strong selectors in particular – is one of the most important steps in the bulk interception process, as this is the point at which the communications of a particular individual may be targeted by the intelligence services. However, while some systems allow for the prior authorisation of categories of selectors (see, for example, the Swedish system described in detail in the judgment in Centrum för rättvisa v. Sweden (application no. 35252/08)), the Court notes that the Governments of both the United Kingdom and the Netherlands have submitted that any requirement to explain or substantiate selectors or search criteria in the authorisation would seriously restrict the effectiveness of bulk interception (see paragraphs 292 and 307 above). This was accepted by the IPT, which found that the inclusion of the selectors in the authorisation would “unnecessarily undermine and limit the operation of the warrant and be in any event entirely unrealistic” (see paragraph 49 above).", "354. Taking into account the characteristics of bulk interception (see paragraphs 344-345 above), the large number of selectors employed and the inherent need for flexibility in the choice of selectors, which in practice may be expressed as technical combinations of numbers or letters, the Court would accept that the inclusion of all selectors in the authorisation may not be feasible in practice. Nevertheless, given that the choice of selectors and query terms determines which communications will be eligible for examination by an analyst, the authorisation should at the very least identify the types or categories of selectors to be used.", "355. Moreover, enhanced safeguards should be in place when strong selectors linked to identifiable individuals are employed by the intelligence services. The use of every such selector must be justified – with regard to the principles of necessity and proportionality – by the intelligence services and that justification should be scrupulously recorded and be subject to a process of prior internal authorisation providing for separate and objective verification of whether the justification conforms to the aforementioned principles.", "356. Each stage of the bulk interception process – including the initial authorisation and any subsequent renewals, the selection of bearers, the choice and application of selectors and query terms, and the use, storage, onward transmission and deletion of the intercept material – should also be subject to supervision by an independent authority and that supervision should be sufficiently robust to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, § 232; see also Klass and Other, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106 and Kennedy, cited above, §§ 153 and 154). In particular, the supervising body should be in a position to assess the necessity and proportionality of the action being taken, having due regard to the corresponding level of intrusion into the Convention rights of the persons likely to be affected. In order to facilitate this supervision, detailed records should be kept by the intelligence services at each stage of the process.", "357. Finally, an effective remedy should be available to anyone who suspects that his or her communications have been intercepted by the intelligence services, either to challenge the lawfulness of the suspected interception or the Convention compliance of the interception regime. In the targeted interception context, the Court has repeatedly found the subsequent notification of surveillance measures to be a relevant factor in assessing the effectiveness of remedies before the courts and hence the existence of effective safeguards against the abuse of surveillance powers. However, it has acknowledged that notification is not necessary if the system of domestic remedies permits any person who suspects that his or her communications are being or have been intercepted to apply to the courts; in other words, where the courts’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his or her communications (see Roman Zakharov, cited above, § 234 and Kennedy, cited above, § 167).", "358. The Court considers that a remedy which does not depend on notification to the interception subject could also be an effective remedy in the context of bulk interception; in fact, depending on the circumstances it may even offer better guarantees of a proper procedure than a system based on notification. Regardless of whether material was acquired through targeted or bulk interception, the existence of a national security exception could deprive a notification requirement of any real practical effect. The likelihood of a notification requirement having little or no practical effect will be more acute in the bulk interception context, since such surveillance may be used for the purposes of foreign intelligence gathering and will, for the most part, target the communications of persons outside the State’s territorial jurisdiction. Therefore, even if the identity of a target is known, the authorities may not be aware of his or her location.", "359. The powers and procedural guarantees an authority possesses are relevant in determining whether a remedy is effective. Therefore, in the absence of a notification requirement it is imperative that the remedy should be before a body which, while not necessarily judicial, is independent of the executive and ensures the fairness of the proceedings, offering, in so far as possible, an adversarial process. The decisions of such authority shall be reasoned and legally binding with regard, inter alia, to the cessation of unlawful interception and the destruction of unlawfully obtained and/or stored intercept material (see, mutatis mutandis, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 120, ECHR 2006 ‑ VII and also Leander, cited above, §§ 81-83 where the lack of power to render a legally binding decision constituted a main weakness in the control offered).", "360. In the light of the above, the Court will determine whether a bulk interception regime is Convention compliant by conducting a global assessment of the operation of the regime. Such assessment will focus primarily on whether the domestic legal framework contains sufficient guarantees against abuse, and whether the process is subject to “end-to-end safeguards” (see paragraph 350 above). In doing so, it will have regard to the actual operation of the system of interception, including the checks and balances on the exercise of power, and the existence or absence of any evidence of actual abuse (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92).", "361. In assessing whether the respondent State acted within its margin of appreciation (see paragraph 347 above), the Court would need to take account of a wider range of criteria than the six Weber safeguards. More specifically, in addressing jointly “in accordance with the law” and “necessity” as is the established approach in this area (see Roman Zakharov, cited above, § 236 and Kennedy, cited above, § 155), the Court will examine whether the domestic legal framework clearly defined:", "the grounds on which bulk interception may be authorised;", "the circumstances in which an individual’s communications may be intercepted;", "the procedure to be followed for granting authorisation;", "the procedures to be followed for selecting, examining and using intercept material;", "the precautions to be taken when communicating the material to other parties;", "the limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased and destroyed;", "the procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance;", "the procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance.", "362. Despite being one of the six Weber criteria, to date the Court has not yet provided specific guidance regarding the precautions to be taken when communicating intercept material to other parties. However, it is now clear that some States are regularly sharing material with their intelligence partners and even, in some instances, allowing those intelligence partners direct access to their own systems. Consequently, the Court considers that the transmission by a Contracting State to foreign States or international organisations of material obtained by bulk interception should be limited to such material as has been collected and stored in a Convention compliant manner and should be subject to certain additional specific safeguards pertaining to the transfer itself. First of all, the circumstances in which such a transfer may take place must be set out clearly in domestic law. Secondly, the transferring State must ensure that the receiving State, in handling the data, has in place safeguards capable of preventing abuse and disproportionate interference. In particular, the receiving State must guarantee the secure storage of the material and restrict its onward disclosure. This does not necessarily mean that the receiving State must have comparable protection to that of the transferring State; nor does it necessarily require that an assurance is given prior to every transfer. Thirdly, heightened safeguards will be necessary when it is clear that material requiring special confidentiality – such as confidential journalistic material – is being transferred. Finally, the Court considers that the transfer of material to foreign intelligence partners should also be subject to independent control.", "363. For the reasons identified at paragraph 342 above, the Court is not persuaded that the acquisition of related communications data through bulk interception is necessarily less intrusive than the acquisition of content. It therefore considers that the interception, retention and searching of related communications data should be analysed by reference to the same safeguards as those applicable to content.", "364. That being said, while the interception of related communications data will normally be authorised at the same time the interception of content is authorised, once obtained they may be treated differently by the intelligence services (see, for example, paragraphs 153-154 above). In view of the different character of related communications data and the different ways in which they are used by the intelligence services, as long as the aforementioned safeguards are in place, the Court is of the opinion that the legal provisions governing their treatment may not necessarily have to be identical in every respect to those governing the treatment of content.", "(iv) The Court’s assessment of the case at hand", "(α) Preliminary remarks", "365. At the relevant time bulk interception had a legal basis in Chapter I of RIPA. Moreover, the Court is satisfied that the said regime pursued the legitimate aims of protecting national security, preventing disorder and crime and protecting the rights and freedoms of others. Therefore, following the approach outlined in paragraph 334 above, it remains to be considered whether the domestic law was accessible and contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”.", "366. The relevant legislative provisions governing the operation of the bulk interception regime were undoubtedly complex; indeed, most of the reports into the United Kingdom’s secret surveillance regimes criticised their lack of clarity (see paragraphs 143, 152 and 157 above). However, those provisions were elucidated in the accompanying Interception of Communications Code of Practice (“the IC Code” – see paragraph 96 above). Paragraph 6.4 of the IC Code made it clear that bulk interception was taking place and provided further details of how this particular surveillance regime operated in practice (see paragraph 96 above). The IC Code is a public document approved by both Houses of Parliament, which is published by the Government online and in print version, and which has to be taken into account both by persons exercising interception duties and the courts (see paragraphs 93-94 above). As a consequence, this Court has accepted that its provisions could be taken into account in assessing the foreseeability of RIPA (see Kennedy, cited above, § 157). Accordingly, the Court would accept that domestic law was adequately “accessible”.", "367. Turning next to the question whether the law contained adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”, the Court will address in subsection (β) each of the eight requirements set out in paragraph 361 above with respect to the interception of the contents of electronic communications. In sub-section (γ) it will examine more specifically the interception of related communications data.", "(β) Interception of the contents of communications", "‒ 1. The grounds on which bulk interception may be authorised", "368. Under section 5(3) of RIPA and paragraph 6.11 of the IC Code (see paragraphs 62 and 96 above), the Secretary of State could only issue a bulk interception warrant if he or she was satisfied that it was necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for the purpose of safeguarding the economic well-being of the United Kingdom so far as those interests were also relevant to the interests of national security.", "369. These grounds were subject to the following limitations. First of all, the IC Commissioner had clarified that in practice “national security” allowed surveillance of activities which threatened the safety or well-being of the State and activities which were intended to undermine or overthrow parliamentary democracy by political, industrial or violent means (see Kennedy, cited above, § 333). Secondly, serious crime was defined in section 81(2)(b) of RIPA as a crime for which the perpetrator (assuming he or she was over the age of twenty-one and had no previous convictions) could reasonably be expected to be sentenced to imprisonment for a term of three years or more; or where the conduct involved the use of violence, resulted in substantial financial gain or was conducted by a large number of persons in pursuit of a common purpose (see paragraph 63 above). Thirdly, section 17 of RIPA and paragraph 8.3 of the IC Code provided that as a general rule neither the possibility of interception, nor intercepted material itself, could play any part in legal proceedings (see paragraphs 83 and 96 above). Therefore, while interception could be used for the purposes of preventing or detecting serious crime, intercept material could not be used in the prosecution of a criminal offence. In addition, paragraph 6.8 of the IC Code provided that the purpose of a section 8(4) warrant would “typically reflect one or more of the intelligence priorities set by the National Security Council” (see paragraphs 96 and 98 above).", "370. In principle, the wider the grounds are, the greater the potential for abuse. However, narrower and/or more tightly defined grounds would only provide an effective guarantee against abuse if there were sufficient other safeguards in place to ensure that bulk interception was only authorised for a permitted ground and that it was necessary and proportionate for that purpose. The closely related issue of whether there existed sufficient guarantees to ensure that the interception was necessary or justified is therefore as important as the degree of precision with which the grounds on which authorisation may be given are defined. Consequently, in the Court’s view, a regime which permits bulk interception to be ordered on relatively wide grounds may still comply with Article 8 of the Convention, provided that, when viewed as a whole, sufficient guarantees against abuse are built into the system to compensate for this weakness.", "371. In the United Kingdom, while the grounds on which bulk interception could be authorised were formulated in relatively broad terms, they still focused on national security as well as serious crime and the economic well-being of the country so far as those interests were also relevant to the interests of national security (see paragraph 368 above). The Court will therefore turn to consider the other safeguards built in to the section 8(4) regime in order to determine whether, when viewed as a whole, it was compliant with Article 8 of the Convention.", "‒ 2. The circumstances in which an individual’s communications may be intercepted", "372. Paragraph 6.2 of the IC Code (see paragraph 96 above) clearly stated that “[i]n contrast to section 8(1), a section 8(4) warrant does not name or describe the interception subject or set of premises in relation to which the interception is to take place. Neither does section 8(4) impose an express limit on the number of external communications which may be intercepted”. In other words, the communications bearers were targeted rather than the devices from which the communications were sent, or the senders or recipients of the communications. In the absence of any limit on the number of communications which could have been intercepted, it would appear that all packets of communications flowing across the targeted bearers while the warrant was in force were intercepted.", "373. That being said, a section 8(4) warrant was a warrant for the interception of external communications (see paragraph 72 above) and paragraph 6.7 of the IC Code (see paragraph 96 above) required the intercepting agency conducting interception under a section 8(4) warrant to use its knowledge of the way in which international communications were routed, combined with regular surveys of relevant communications links, to identify those individual communications bearers that were most likely to contain external communications that met the description of material certified by the Secretary of State. The intercepting agency was also required to conduct the interception in ways that limited the collection of non-external communications to the minimal level compatible with the objective of intercepting wanted external communications. The bearers were not, therefore, chosen at random. On the contrary, they were selected because they were believed to be the most likely to carry external communications of intelligence interest.", "374. Paragraph 6.5 of the IC Code defined “external communications” as communications which were either sent or received outside the British Islands (see paragraph 96 above). Where both the sender and recipient were within the British Islands, the communication was internal. Whether or not a communication was “external” therefore depended on the geographic location of the sender and recipient and not on the route the communication took to its destination. Communications which crossed the United Kingdom’s borders (international communications) could still be “internal”, since a communication (or packets of a communication) both sent from and received in the United Kingdom could nevertheless be routed through one or more third countries.", "375. The distinction between internal and external communications did not, therefore, prevent the interception of internal communications travelling across the United Kingdom’s borders, and in fact the “by-catch” of such communications was expressly permitted by section 5(6) of RIPA, which provided that the conduct authorised by an interception warrant included the interception of communications not identified by the warrant if necessary to do what was expressly authorised by the warrant (see paragraph 68 above). In addition, the definition of “external” was itself sufficiently broad to include cloud storage and the browsing and social media activities of a person in the United Kingdom (see paragraphs 75 and 76 above). Nevertheless, as the Chamber acknowledged, the “external communications” safeguard had a role to play at the macro level of selecting the bearers for interception (see paragraph 337 of the Chamber judgment); as the intercepting agency had to use its knowledge of the way in which international communications were routed to identify those communications bearers most likely to contain external communications of value to the operation, the safeguard did, albeit to a limited extent, circumscribe the categories of people liable to have their communications intercepted. It was also relevant to the question of proportionality, since States might have less intrusive measures available to them to obtain the communications of persons within their territorial jurisdiction.", "376. In light of the foregoing, the Court considers it clear that under the section 8(4) regime international communications (that is, communications crossing State borders) could be intercepted; and that the intelligence services would only use the power to intercept those bearers most likely to be carrying external communications of intelligence interest. In the bulk interception context it is difficult, in the abstract, to imagine how the circumstances in which an individual’s communications might be intercepted could be further delimited. In any event, as neither the sender nor the recipient of an electronic communication could control the route it took to its destination, in practice any further restrictions on the choice of bearers would not have made domestic law any more foreseeable as to its effects. The Court would therefore accept that the circumstances in which an individual’s communications could be intercepted under the section 8(4) regime were sufficiently “foreseeable” for the purposes of Article 8 of the Convention.", "‒ 3. The procedure to be followed for granting authorisation", "377. An application for a section 8(4) warrant was made to the Secretary of State, who alone had the power to issue such a warrant. Prior to submission, each application was subject to a review within the agency making it. This involved scrutiny by more than one official, who had to consider whether the application was made for a purpose falling within section 5(3) of RIPA and whether the proposed interception satisfied the Convention standards of necessity and proportionality (see paragraph 6.9 of the IC Code, at paragraph 96 above). This additional level of internal scrutiny was no doubt valuable, but it remained the case that at the relevant time bulk interception conducted under the section 8(4) regime was authorised by the Secretary of State and not by a body independent of the executive. Consequently, the section 8(4) regime lacked one of the fundamental safeguards; namely, that bulk interception should be subject to independent authorisation at the outset (see paragraph 350 above).", "378. As for the level of scrutiny provided by the Secretary of State, paragraph 6.10 of the IC Code set out in detail the information which had to be included in the application (see paragraph 96 above). This included a description of the communications to be intercepted, details of the communications service provider(s) and an assessment of the feasibility of the operation, where relevant; a description of the conduct to be authorised; the certificate that would regulate examination of intercept material (see paragraphs 378 and 379 below); an explanation of why the interception was considered necessary for one or more of the section 5(3) purposes; a consideration of why the conduct was proportionate to what was sought to be achieved; an assurance that intercept material would be read, looked at or listened to only so far as it was certified and met the conditions of sections 16(2) to 16(6) of RIPA; and an assurance that intercept material would be handled in accordance with the section 15 and section 16 safeguards.", "379. The Secretary of State was therefore informed of the purpose of the operation (which had to be one of the section 5(3) purposes) and, before issuing a warrant, had to be satisfied that it was necessary for that purpose, and that it was proportionate to what it sought to achieve (see paragraphs 6.11 and 6.13 of the IC Code at paragraph 96 above). In assessing proportionality the Secretary of State had to consider whether the warrant was excessive in the overall circumstances of the case and whether the information sought could reasonably have been obtained by less intrusive means (see paragraph 3.6 of the IC Code at paragraph 96 above). In particular, the size and scope of the interference had to be balanced against what was sought to be achieved; an explanation had to be given of how and why the methods would cause the least possible intrusion on the subject and others; consideration had to be given as to whether the activity was an appropriate way of achieving the necessary result, having considered all reasonable alternatives; and, as far as reasonably practicable, evidence had to be given of other methods considered but assessed as insufficient to fulfil operational objectives (see paragraph 3.7 of the IC Code at paragraph 96 above).", "380. Although the application for a section 8(4) warrant had to include “a description of the communications to be intercepted” and “details of the Communications Service Provider(s)”, the Government confirmed at the hearing that the warrant did not specify particular bearers, because there would be “serious impracticalities and difficulties” if that were to be a requirement. Nevertheless, there had to be a proper description of what the interception would involve and details of the “sorts of bearers” that would be intercepted. This information informed the Secretary of State’s assessment of the necessity and proportionality of the conduct described in the application. Furthermore, the Government confirmed in their submissions to the Grand Chamber that the IC Commissioner was briefed regularly by GCHQ about the basis on which bearers were selected for interception (see paragraph 290 above).", "381. The application for a section 8(4) warrant also did not have to include an indication of the categories of selectors to be employed. As a consequence, there was no possibility for their necessity and proportionality to be assessed at the authorisation stage, although the choice of selectors was thereafter subject to independent supervision. In their submissions before the Grand Chamber the Government confirmed that whenever a new selector was added to the system, the analyst adding it had to complete a written record, explaining why it was necessary and proportionate to apply the selector for the purposes within the Secretary of State’s certificate. This was done by the selection of text from a drop down menu, followed by the addition, by the analyst, of free text explaining why it was necessary and proportionate to make the search. Furthermore, the use of selectors had to be recorded in an approved location that enabled them to be audited; created a searchable record of selectors in use; and enabled oversight by the IC Commissioner (see paragraphs 291-292 above). The choice of selectors was therefore subject to oversight by the IC Commissioner and in his 2016 annual report he “was impressed by the quality of the statements” prepared by analysts explaining the necessity and proportionality of adding a new selector (see paragraph 177 above).", "382. Given that the choice of selectors and query terms determined which communications would be eligible for examination by an analyst, the Court has indicated that it is of fundamental importance for at least the categories of selectors to be identified in the authorisation and for those strong selectors linked to identifiable individuals to be subject to prior internal authorisation providing for separate and objective verification of whether the justification conforms to the aforementioned principles ( see paragraphs 353- 355 above).", "383. In the present case, the absence of any oversight of the categories of selectors at the point of authorisation was a deficiency in the section 8(4) regime. Neither did the subsequent control of all individual selectors satisfy the requirement for enhanced safeguards for the use of strong selectors linked to identifiable individuals and the need to have in place a process of prior internal authorisation providing for separate and objective verification of whether the justification conforms to the above mentioned principles (see paragraph 355 above). Although analysts had to record and justify the use of every selector with regard to the Convention principles of necessity and proportionality and that justification was subjected to independent supervision by the IC Commissioner, strong selectors linked to identifiable individuals were nevertheless not subject to prior internal authorisation.", "‒ 4. The procedures to be followed for selecting, examining, and using intercept material", "384. Paragraph 6.4 of the IC Code stipulated that where a section 8(4) warrant resulted in the acquisition of large volumes of communications, authorised persons within the intercepting agency could apply strong selectors and complex queries to generate an index (see paragraph 96 above). This selection process was circumscribed by section 16(2) of RIPA and paragraph 7.19 of the IC Code, which provided that a selector could not refer to an individual known to be in the British Islands, and have as a purpose the identification of material contained in communications sent by or intended for him or her, unless the Secretary of State had personally authorised the use of the selector, having first been satisfied that it was necessary in the interests of national security, for the purpose of preventing or detecting serious crime, or for the purpose of safeguarding the economic well-being of the United Kingdom so far as those interests were also relevant to the interests of national security; and was proportionate (see paragraphs 85 and 96 above).", "385. Only material on the index could be viewed by an analyst (see paragraphs 96 and 289 above); and no intelligence report could be made of any communications or communications data unless they had been viewed by an analyst (see paragraph 289 above). Moreover, paragraph 7.13 of the IC Code provided that only material described in the Secretary of State’s certificate was available for human examination, and no official was permitted to gain access to the material other than as permitted by the certificate (see paragraph 96 above). Paragraph 6.4 further provided that before a particular communication could be accessed by an authorised person within the intercepting agency, the person had to explain why it was necessary for one of the reasons set out in the accompanying certificate, and why it was proportionate in the particular circumstances, having regard to whether the information could reasonably have been obtained by less intrusive means (see paragraph 96 above).", "386. The Secretary of State’s certificate was issued when he or she granted the warrant and was intended to ensure that a selection process was applied to the intercepted material so that only material described in the certificate was made available for human examination (see paragraphs 6.3 and 6.14 of the IC Code at paragraph 96 above). Although the certificate played an important role in regulating access to intercept material, the reports of the ISC and the Independent Reviewer of Terrorism Legislation both criticised the fact that the material identified in these certificates was couched in very general terms (for example, “material providing intelligence on terrorism as defined in the Terrorism Act 2000 (as amended)”) (see paragraph 342 of the Chamber judgment and paragraphs 146 and 155 above). The Court agrees with the Chamber that this was a deficiency in the system of safeguards available under the section 8(4) regime.", "387. Nonetheless, according to the ISC, although the certificate set out the general categories of information which could be examined, in practice it was the selection of the bearers, the application of simple selectors and initial search criteria, and then complex searches which determined what communications were examined (see paragraphs 146-147 above). In other words, while the certificates regulated the analyst’s selection of material from a computer generated index, it was the choice of bearers and selectors/search terms which determined which communications were on that index (and therefore eligible for examination) in the first place. However, the Court has already held that both the failure to identify the categories of selectors in the application for a warrant and the absence of prior internal authorisation of those strong selectors linked to an identifiable individual represented deficiencies in the section 8(4) regime (see paragraph 382 above). These deficiencies would have been exacerbated by the general nature of the Secretary of State’s certificate. Not only was there no prior independent authorisation of the categories of selectors used to generate the index, and no internal authorisation of those strong selectors linked to an identifiable individual, but the certificate regulating access to material on that index was drafted in insufficiently precise terms to provide any meaningful restriction.", "388. Paragraph 7.16 of the IC Code further required an analyst seeking access to material on the index to indicate any circumstances likely to give rise to a degree of collateral infringement of privacy, together with the measures taken to reduce the extent of that intrusion (see paragraph 96 above). Any subsequent access by the analyst was limited to a defined period of time, and if that period of time was renewed, the record had to be updated giving reasons for renewal (see paragraph 7.17 of the IC Code, at paragraph 96 above). According to paragraph 7.18 of the IC Code, regular audits were carried out which included checks to ensure that the records requesting access to material were compiled correctly, and that the material requested fell within the matters certified by the Secretary of State (see paragraph 96 above).", "389. Furthermore, according to paragraph 7.15, material gathered under a section 8(4) warrant could only be read, looked at or listened to by authorised persons (analysts) who had received regular mandatory training regarding the provisions of RIPA and the requirements of necessity and proportionality, and who had been appropriately vetted (see paragraph 96 above). Pursuant to paragraph 7.10, the vetting of each individual member of staff was periodically reviewed (see paragraph 96 above).", "390. Paragraph 7.6 of the IC Code provided that intercept material could only be copied to the extent necessary for the authorised purposes and subject to a strict application of the “need to know” principle, including providing extracts or summaries where this was sufficient to satisfy the user’s need to know. Section 15(5) of RIPA required arrangements to be in place for securing that every copy of the material or data that was made was stored, for as long as it was retained, in a secure manner (see paragraph 81 above); and paragraph 7.7 further required that prior to its destruction, intercept material, and all copies, extracts and summaries of it, had to be stored securely and could not be accessible to persons without the required level of security clearance (see paragraph 96 above).", "391. Subject to the aforementioned deficiencies relating to the authorisation of the selectors (see paragraphs 381 and 382 above) and the general nature of the Secretary of State’s certificate (see paragraph 386 above), the Court considers that the circumstances in which intercept material could be selected, examined, used and stored under the section 8(4) regime were sufficiently “foreseeable” for the purposes of Article 8 of the Convention, and that they provided adequate safeguards against abuse.", "‒ 5. The precautions to be taken when communicating the material to other parties", "392. Section 15(2) of RIPA required that the following be limited to the minimum necessary for the “authorised purposes”: the number of persons to whom the material or data were disclosed or made available; the extent to which the material or data were disclosed or made available; the extent to which the material or data were copied; and the number of copies that were made (see paragraphs 78 above). Pursuant to section 15(4) and paragraph 7.2 of the IC Code, something was necessary for the authorised purposes if, and only if, it continued to be, or was likely to become, necessary for the purposes mentioned in section 5(3) of RIPA; for facilitating the carrying out of any of the interception functions of the Secretary of State; for facilitating the carrying out of any functions of the IC Commissioner or of the IPT; to ensure that a person conducting a criminal prosecution had the information he or she needed to determine what was required by the duty to secure the fairness of the prosecution (although the intercept material could not itself be used in the prosecution of a criminal offence – see paragraph 8.3 of the IC Code at paragraph 96 above); or for the performance of any duty imposed on any person under public records legislation (see paragraphs 80 and 96 above).", "393. Paragraph 7.3 of the IC Code prohibited disclosure to persons who had not been appropriately vetted and also by the “need-to-know” principle: intercepted material could not be disclosed to any person unless that person’s duties, which had to relate to one of the authorised purposes, were such that he or she “needed to know” about the intercept material to carry out those duties. In the same way, only so much of the intercept material could be disclosed as the recipient needed (see paragraph 96 above). Paragraph 7.3 applied equally to disclosure to additional persons within an agency, and to disclosure outside the agency (see paragraph 96 above). Pursuant to paragraph 7.4, it also applied not just to the original interceptor, but also to anyone to whom the intercept material was subsequently disclosed (see paragraph 96 above).", "394. As the Chamber observed, since “likely to become necessary” was not further defined in RIPA or the IC Code, or indeed anywhere else, section 15(4) and paragraph 7.2 could in practice have given the authorities a broad power to disclose and copy intercept material. Nevertheless, the material could still only be disclosed to a person with the appropriate level of security clearance, who had a “need to know”, and only so much of the intercept material as the individual needed to know could be disclosed. The Court therefore agrees with the Chamber that the inclusion of “likely to become necessary” did not significantly reduce the safeguards for the protection of data obtained by bulk interception (see paragraphs 368 and 369 of the Chamber judgment).", "395. Turning, then, to the transfer of intercept material outside the United Kingdom, where material has been intercepted in accordance with domestic law, the Court considers that the transfer of that material to a foreign intelligence partner or international organisation would only give rise to an issue under Article 8 of the Convention if the intercepting State did not first ensure that its intelligence partner, in handling the material, had in place safeguards capable of preventing abuse and disproportionate interference, and in particular, could guarantee the secure storage of the material and restrict its onward disclosure (see paragraph 362 above).", "396. In the United Kingdom it would appear that Five Eyes partners could access elements of the product of GCHQ’s interception warrants on their own systems (see paragraph 180 above). In such cases, the interception of the material by the United Kingdom intelligence services would have been conducted in accordance with domestic law including, in so far as is relevant in the present case, section 8(4) of RIPA. According to paragraph 7.5 of the IC Code, where intercept material was disclosed to the authorities of a country or territory outside the United Kingdom, the intelligence services had to take reasonable steps to ensure that the authorities in question had and would maintain the necessary procedures to safeguard the intercept material, and to ensure that it was disclosed, copied, distributed and retained only to the minimum extent necessary. The intercept material could not be further disclosed to the authorities of a third country or territory unless explicitly agreed with the issuing agency and it had to be returned to the issuing agency or securely destroyed when no longer needed (see paragraph 96 above). Section 15(7) of RIPA further provided that restrictions should be in force which would prevent the doing of anything in connection with legal proceedings outside the United Kingdom which would disclose the content or related communications data of an intercepted communication where such a disclosure could not have been made in the United Kingdom (see paragraph 82 above).", "397. In respect of confidential material, paragraph 4.30 of the IC Code provided that where confidential information was disseminated to an outside body, reasonable steps had to be taken to mark the information as confidential. Where there was any doubt as to the lawfulness of the proposed dissemination of confidential information, advice had to be sought from a legal adviser within the relevant intercepting agency and before any further dissemination of the material could take place (see paragraph 96 above).", "398. There were therefore safeguards in place to ensure that intelligence partners would guarantee the secure storage of transferred material and restrict its onward disclosure. A final safeguard, to which the Court attaches particular weight, is the oversight provided by the IC Commissioner and the IPT (see paragraphs 411 and 414 below).", "399. In light of the foregoing, the Court considers that the precautions to be taken when communicating intercept material to other parties were sufficiently clear and afforded sufficiently robust guarantees against abuse.", "‒ 6. The limits on the duration of interception, the storage of intercept material and the circumstances in which such material must be erased or destroyed", "400. As regards the duration of section 8(4) warrants issued for reasons of national security or the economic well-being of the United Kingdom so far as those interests were also relevant to the interests of national security, pursuant to section 9 of RIPA these ceased to have effect after six months, unless they were renewed. Section 8(4) warrants issued by the Secretary of State for the purposes of preventing serious crime ceased to have effect after three months, unless renewed. These warrants were renewable for periods of six and three months respectively, and could be renewed at any point before their expiry date by application to the Secretary of State. That application had to contain the same information as the original application, together with an assessment of the value of the interception up to that point and an explanation of why its continuation was necessary, within the meaning of section 5(3), and proportionate (see section 9 of RIPA at paragraph 67 above and paragraphs 6.22-6.24 of the IC Code at paragraph 96 above). The Secretary of State had to cancel a warrant – even before the original expiry date – if satisfied that it was no longer necessary on section 5(3) grounds (see section 9 of RIPA at paragraph 67 above).", "401. In view of the clear limitation on the duration of section 8(4) warrants, and the requirement that they be kept under continuous review, the Court considers that the rules in respect of the duration of interception under the section 8(4) regime were sufficiently clear and provided adequate safeguards against abuse.", "402. Paragraph 7.9 of the IC Code provided that where an intelligence service received unanalysed intercept material and related communications data from interception under a section 8(4) warrant, it had to specify maximum retention periods for different categories of material which reflected its nature and intrusiveness. Those specified periods would normally be no longer than two years, and had to be agreed with the IC Commissioner. So far as possible, all retention periods had to be implemented by a process of automated deletion, triggered once the applicable maximum retention period had been reached (see paragraph 96 above). Pursuant to paragraph 7.8 of the IC Code retained intercept material had to be reviewed at appropriate intervals to confirm that the justification for its retention was still valid under section 15(3) of RIPA (see paragraph 96 above).", "403. In their submissions to the Grand Chamber, the Government provided further information about the retention periods. Communications to which only the “strong selector” process was applied were discarded immediately unless they matched the strong selector. Communications to which the “complex query” process was also applied were retained for a few days, in order to allow the process to be carried out, and were then deleted automatically unless they had been selected for examination. Communications which had been selected for examination could be retained only where it was necessary and proportionate to do so. The default position was that the retention period for selected communications was no longer than a few months, after which they were automatically deleted (although if the material had been cited in intelligence reporting, the report would be retained), but in exceptional circumstances a case could be made to retain selected communications for longer (see paragraph 293 above). In practice, therefore, it would appear that the retention periods were significantly shorter than the two-year maximum retention period.", "404. Finally, section 15(3) of RIPA and paragraph 7.8 of the IC Code required that every copy of intercept material (together with any extracts and summaries) be destroyed securely as soon as retention was no longer necessary for any of the section 5(3) purposes (see paragraphs 79 and 96 above).", "405. In the Liberty proceedings, the IPT considered the arrangements for the retention of material and its destruction and found them to be adequate (see paragraph 50 above). The Court also considers that the “above the waterline” arrangements setting out the circumstances in which intercept material had to be erased or destroyed were sufficiently clear. However, in its view it would have been desirable for the shorter retention periods identified by the Government in the course of the present proceedings to have been reflected in the appropriate legislative and/or other general measures.", "‒ 7. Supervision", "406. Supervision of the section 8(4) regime was primarily carried out by the IC Commissioner, although according to that Commissioner a “critical quality assurance function [was] initially carried out by the staff and lawyers within the intercepting agency or the warrant-granting department”, who provided independent advice to the Secretary of State and performed important pre-authorisation scrutiny of warrant applications and renewals to ensure that they were (and remained) necessary and proportionate (see paragraph 170 above).", "407. The IC Commissioner was independent of the executive and the legislature, and had to have held high judicial office. His principal duty was to review the exercise and performance, by the relevant Secretaries of State and public authorities, of the powers under Part 1 (and to a limited extent Part 3) of RIPA and he oversaw an inspection regime that enabled him to carry out independent oversight of how the law was applied. He regularly reported on his activities, on a half-yearly basis, to the Prime Minister, and prepared an annual report which was placed before both Houses of Parliament. In addition, after each inspection a report was sent to the head of the inspected agency which contained formal recommendations and which required the agency to report back within two months to confirm whether the recommendations had been implemented or what progress had been made. His periodic reports have been published from 2002, and from 2013 they were published in full with no confidential annexes. Furthermore, section 58(1) of RIPA imposed a statutory obligation on every public official in an organisation within the IC Commissioner’s remit to disclose or to provide to him all documents or information as might be required to enable him to carry out his functions (see paragraphs 135 and 136 above).", "408. The IC Commissioner’s 2016 report provides evidence of the extent of his oversight powers. In summary, during inspections he evaluated the systems in place for the interception of communications and ensured that all relevant records had been kept; examined selected interception applications to assess whether they met the necessity and proportionality requirements; interviewed case officers and analysts to assess whether interceptions and the justifications for acquiring all of the material were proportionate; examined any urgent oral approvals to check that the process was justified and used appropriately; reviewed those cases where communications subject to legal privilege or otherwise confidential information had been intercepted and retained, and any cases where a lawyer was the subject of an investigation; reviewed the adequacy of the safeguards and arrangements under sections 15 and 16 of RIPA; investigated the procedures in place for the retention, storage and destruction of intercepted material and related communications data; and reviewed reported errors and the sufficiency of any measures put in place to prevent recurrence (see paragraph 171 above).", "409. During 2016, the IC Commissioner’s office inspected all nine interception agencies once and the four main warrant-granting departments twice. Nine hundred and seventy warrants were inspected, representing sixty-one percent of the number of warrants in force at the end of the year and thirty-two percent of the total of new warrants issued in 2016 (see paragraphs 173 and 175 above).", "410. Inspections usually involved a three-stage process. First, to achieve a representative sample of warrants, inspectors selected them across different crime types and national security threats, focusing on those of particular interest or sensitivity. Secondly, inspectors scrutinized the selected warrants and associated documentation in detail during reading days which preceded the inspections. At this stage, inspectors examined the necessity and proportionality statements made by analysts when adding a selector to the collection system for examination. Each statement had to stand on its own and had to refer to the overall requirement of priorities for intelligence collection. Thirdly, they identified those warrants, operations or areas of the process which required further information or clarification and arranged to interview relevant operational, legal or technical staff. Where necessary, they examined further documentation or systems relating to those warrants (see paragraph 174 above).", "411. The IC Commissioner also had oversight of the sharing of intercept material with intelligence partners. In his 2016 report he indicated that GCHQ had provided his inspectors with “comprehensive details of the sharing arrangements whereby Five Eyes partners can access elements of the product of GCHQ’s interception warrants on their own systems”. In addition, his inspectors were able to meet with representatives of the Five Eyes community and they received a demonstration of how other Five Eyes members could request access to GCHQ’s intercept material. He observed that “access to GCHQ systems was tightly controlled and had to be justified in accordance with the laws of the host country and handling instructions of section 15/16 safeguards.” He further observed that before getting any access to GCHQ’s intercept material, Five Eyes analysts had to complete the same legalities training as GCHQ staff (see paragraph 180 above).", "412. In light of the foregoing, the Court is satisfied that the IC Commissioner provided independent and effective supervision of the operation of the section 8(4) regime. In particular, he and his inspectors were able to assess the necessity and proportionality of a significant number of warrant applications and the subsequent choice of selectors, and to investigate the procedures in place for the retention, storage and destruction of intercepted communications and related communications data. They were also able to make formal recommendations to the head of the public authorities concerned and those authorities were required to report back, within two months, on the progress they had made in implementing those recommendations. Furthermore, the Government confirmed in their submissions to the Grand Chamber that the IC Commissioner was also briefed regularly by GCHQ about the basis on which bearers were selected for interception (see paragraphs 136 and 290 above). The intelligence services were required to keep records at each stage of the bulk interception process and they were obliged to grant inspectors access to those records (see paragraphs 6.27 and 6.28 of the IC Code at paragraph 96 above). Finally, he also had oversight of the sharing of intercept material with intelligence partners (see paragraph 180 above).", "‒ 8. Ex post facto review", "413. Ex post facto review was provided by the IPT which in the present case was presided over at all relevant times by a High Court Judge. The Chamber found – and the applicants have not disputed – that the IPT provides an effective remedy for applicants complaining of both specific incidences of surveillance and the general Convention compliance of surveillance regimes (see paragraph 265 of the Chamber judgment). In this regard, the Chamber found it significant that the IPT had extensive jurisdiction to examine any complaint of unlawful interception which was not dependent on notification of the interception to its subject (see paragraph 122 above). Consequently, any person who believed that he or she had been subject to secret surveillance could make an application to it. Its members had to have held high judicial office or be a qualified lawyer of at least ten years’ standing (see paragraph 123 above). Those involved in the authorisation and execution of an intercept warrant were required to disclose to it all the documents it might require, including “below the waterline” documents which could not be made public for reasons of national security (see paragraph 125 above). Furthermore, it had discretion to hold oral hearings, in public, where possible (see paragraph 129 above); in closed proceedings it could ask Counsel to the Tribunal to make submissions on behalf of claimants who could not be represented (see paragraph 132 above); and when it determined a complaint it had the power to award compensation and make any other order it saw fit, including quashing or cancelling any warrant and requiring the destruction of any records (see paragraph 126 above). Finally, its legal rulings were published on its own dedicated website, thereby enhancing the level of scrutiny afforded to secret surveillance activities in the United Kingdom (see Kennedy, cited above, § 167).", "414. In addition, the IPT had jurisdiction to consider any complaint about the Convention compliance either of the transfer of intercept material to third parties, or about the regime governing the transfer of intercept material. In the present case, however, the applicants in the third of the joined cases did not make any specific complaint in this respect in the course of the domestic proceedings. Rather, their complaints about intelligence sharing focused solely on the regime governing the receipt of intelligence from third countries (see paragraphs 467-516 below).", "415. The Court is therefore satisfied that the IPT provided a robust judicial remedy to anyone who suspected that his or her communications had been intercepted by the intelligence services.", "(γ) Related communications data", "416. The Court has indicated that in the context of bulk interception the interception, retention and searching of related communications data should be analysed by reference to the same safeguards applicable to content, but that the legal provisions governing the treatment of related communications data do not necessarily have to be identical in every respect to those governing the treatment of content (see paragraphs 363-364 above). In the United Kingdom section 8(4) warrants authorised the interception of both content and related communications data. The latter were, in most respects, treated identically under the section 8(4) regime. Thus, the deficiencies already identified in respect of that regime governing the interception of content (see paragraphs 377, 381 and 382 above) applied equally to related communications data, namely: the absence of independent authorisation (see paragraph 377 above); the failure to identify the categories of selectors in the application for a warrant (see paragraphs 381 and 382 above) and the failure to subject those selectors linked to identifiable individuals to prior internal authorisation; and the lack of foreseeability of the circumstances in which communications could be examined (see paragraph 391 above), having regard both to the failure to identify the categories of selectors in the application for a warrant (see paragraphs 381 and 382 above) and to the general nature of the Secretary of State’s certificate (see paragraph 386 above).", "417. At the same time, the treatment of communications data benefitted in most part from the same safeguards as applied to content. Like the latter, the former were subject to an automated filtering process in near-real time, with a substantial proportion of them being instantly deleted at this stage; and they were also subject to simple or complex queries in order to draw out the material that was of potential intelligence value. Moreover, the selectors used in respect of related communications data were subject to the same safeguards as content; most notably, analysts had to complete a written record explaining why each new selector added to the system was necessary and proportionate, that record was subject to audit by the IC Commissioner, selectors had to be removed if it was established that they were not being used by their intended target, and there was a maximum time during which selectors could remain in use before a review was necessary (see paragraph 298 above).", "418. Content and related communications data were also subject to many of the same procedures for storage, access, examination and use, the same precautions for communication to third parties, and the same procedures for erasure and destruction. In this regard, both content and related communications data were subject to the safeguards in section 15 of RIPA; analysts wishing to access related communications data had to complete an auditable record explaining why access was necessary and proportionate; and no intelligence reporting could be made on the basis of related communications data unless and until they had been examined.", "419. There were, however, two principal ways in which the bulk interception regime treated content and related communications data differently: related communications data were excluded from the section 16(2) safeguard, meaning that if an analyst wished to use a selector referable to an individual known for the time being to be in the British Islands, he or she was not required to have the use of that selector certified as necessary and proportionate by the Secretary of State; and related communications data which did not match either a strong selector or a complex query were not destroyed immediately, but were instead stored for a maximum period of up to several months (see paragraphs 296-298 above). The Court will therefore examine whether domestic law clearly defined the procedures to be followed for selecting related communications data for examination, and the limits on the duration of the storage of related communications data.", "420. Under the section 8(4) regime, section 16(2) was the principal statutory safeguard circumscribing the process of selecting intercept material for examination. However, it was not the only safeguard. As already noted at paragraph 417 above, all new selectors had to be justified by analysts through the creation of a written record explaining why the choice of selector was both necessary and proportionate (see paragraphs 291-292 and 298 above); analysts wishing to examine related communications data had to complete a further record explaining why it was necessary and proportionate to do so, in pursuit of GCHQ’s statutory functions (see paragraph 6.4 of the IC Code, at paragraph 96 above); and these records were subject to audit and oversight by the IC Commissioner (see paragraphs 135-136 and 381 above). According to the Government, it would not have been feasible to extend the section 16(2) safeguard to related communications data, since this would have required the Secretary of State to certify the necessity and proportionality of targeting the individual concerned in every case. The number of queries made against communications data was significantly higher than the number of queries made against content (possibly many thousands in any given week in relation to individuals known or believed to be in the United Kingdom), and in many of these cases the identity of the individual would not be known. In addition, the Government pointed out that related communications data had a temporal quality, and having to delay the conducting of searches pending acquisition of an individual authority would seriously risk undermining their use in intelligence terms (see paragraph 296 above).", "421. The Court accepts that related communications data are an essential tool for the intelligence services in the fight against terrorism and serious crime, and that there would be circumstances in which it was both necessary and proportionate to search for and access the related communications data of persons known to be in the United Kingdom. Moreover, while section 16(2) contains an important safeguard governing the process of selecting intercept material for examination, it is noteworthy that in assessing the regime governing the bulk interception of content, the Court placed considerably more weight on the existence or otherwise of an effective mechanism to ensure that the choice of selectors was both subject to the Convention requirements of necessity and proportionality; and subject to both internal and external oversight. Therefore, while the Court would echo the concerns raised in respect of the choice and oversight of selectors at paragraphs 381 and 382 above, it does not consider that the exclusion of related communications data from the section 16(2) safeguard should carry decisive weight in the overall assessment.", "422. As for the duration of storage, the Government contended that related communications data “require more analytical work, over a lengthy period, to discover ‘unknown unknowns’”. That discovery could involve an exercise of piecing together disparate small items of communications data to form a “jigsaw” revealing a threat, and would include the possible examination of items that initially appeared to be of no intelligence interest. Discarding unselected communications data immediately, or even after a few days, would render that exercise impossible (see paragraph 297 above).", "423. In light of the foregoing, and in view of the fact that there was a maximum retention period, which did not exceed “several months”, and the difference in treatment was objectively and reasonably justified, the Court would accept that the storage provisions concerning related communications data were sufficiently robust, even though they differed in substance from the provisions relating to content. However, these retention periods were only disclosed in the proceedings before this Court. Consequently, the shorter retention periods were not evident to anyone reading the IC Code; nor was there any indication in the IC Code that the retention periods for related communications data were different from those in respect of content. In the Court’s view, in order to meet the Article 8 requirement of “foreseeability”, the retention periods disclosed in the proceedings before it should be included in appropriate legislative and/or other general measures.", "(δ) Conclusion", "424. The Court accepts that bulk interception is of vital importance to Contracting States in identifying threats to their national security. This has been recognised by the Venice Commission (see paragraph 196 above) and was the position adopted by the respondent Government as well as the Governments of France and the Netherlands in their third party interventions (see paragraphs 300 and 303 above). It was also the conclusion of the Independent Reviewer of Terrorism Legislation, who, having examined a great deal of closed material, concluded that bulk interception was an essential capability: first, because terrorists, criminals and hostile foreign intelligence services had become increasingly sophisticated at evading detection by traditional means; and secondly, because the nature of the global Internet meant that the route a particular communication would travel had become hugely unpredictable. Although he and his team considered alternatives to bulk interception (including targeted interception, the use of human sources and commercial cyber ‑ defence products), they concluded that no alternative or combination of alternatives would be sufficient to substitute for the bulk interception power (see paragraph 166 above).", "425. Nonetheless, the Court recalls that there is considerable potential for bulk interception to be abused in a manner adversely affecting the rights of individuals to respect for private life (see paragraph 347 above). Therefore, in a State governed by the rule of law, which is expressly mentioned in the Preamble to the Convention and is inherent in the object and purpose of Article 8 (see Roman Zakharov, cited above, § 228), the Court considers that, when viewed as a whole, the section 8(4) regime, despite its safeguards, including some robust ones as highlighted above (see, for example, paragraphs 412 and 415 above), did not contain sufficient “end-to-end” safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. In particular, it has identified the following fundamental deficiencies in the regime: the absence of independent authorisation, the failure to include the categories of selectors in the application for a warrant, and the failure to subject selectors linked to an individual to prior internal authorisation (see paragraphs 377-382 above). These weaknesses concerned not only the interception of the contents of communications but also the interception of related communications data (see paragraph 416 above). While the IC Commissioner provided independent and effective oversight of the regime, and the IPT offered a robust judicial remedy to anyone who suspected that his or her communications had been intercepted by the intelligence services, these important safeguards were not sufficient to counterbalance the shortcomings highlighted at paragraphs 377-382 above.", "426. In view of the aforementioned shortcomings, the Court finds that section 8(4) did not meet the “quality of law” requirement and was therefore incapable of keeping the “interference” to what was “necessary in a democratic society”.", "427. There has accordingly been a violation of Article 8 of the Convention.", "The alleged violation of Article 10 of the Convention", "428. The applicants in both the second and the third of the joined cases complained under Article 10 of the Convention about the section 8(4) regime, arguing that the protection afforded by Article 10 to privileged communications was of critical importance to them as journalists and NGOs respectively. However, as the Chamber declared the complaint by the applicants in the third of the joined cases inadmissible for failure to exhaust domestic remedies, only the Article 10 complaint relating to journalists is within the scope of the case referred to the Grand Chamber.", "429. Article 10 of the Convention provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "The Chamber judgment", "430. The Chamber found that as the surveillance measures under the section 8(4) regime were not aimed at monitoring journalists or uncovering journalistic sources, the interception of such communications could not, by itself, be characterised as a particularly serious interference with freedom of expression. However, it considered that the interference would be greater if those communications were selected for examination. If that were the case the interference could only be “justified by an overriding requirement in the public interest” if it was accompanied by sufficient safeguards. In particular, the circumstances in which such communications could be selected intentionally for examination would have to be set out sufficiently clearly in domestic law, and there would have to be adequate measures in place to ensure the protection of confidentiality where such communications had been selected, either intentionally or otherwise, for examination. In the absence of any publicly available arrangements limiting the intelligence services’ ability to search and examine confidential journalistic material other than where it was justified by an overriding requirement in the public interest, the Chamber found that there had also been a violation of Article 10 of the Convention.", "The parties’ submissions", "(a) The applicants", "431. The applicants in the second of the joined cases argued that the bulk interception regime was in breach of Article 10 because the large scale interception and the maintaining of large databases of information had a chilling effect on freedom of communication for journalists.", "432. In view of the fundamental importance of press freedom, the applicants submitted that any interference with journalistic freedom, and in particular the right to maintain confidentiality of sources, had to be attended with legal procedural safeguards commensurate with the importance of the principle at stake. In particular, the notion of “in accordance with the law” required that where a measure was capable of identifying journalistic sources or revealing journalistic material it had to have been authorised by a judge or other independent and impartial decision-making body; the review had to be ex ante; and the authorising body had to be invested with the power to determine whether it was “justified by an overriding requirement in the public interest” and, in particular, whether a less intrusive measure might have sufficed to serve the overriding public interest (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, 14 September 2010). None of these safeguards were present in the section 8(4) regime.", "(b) The Government", "433. The Government argued first, that there was no authority in the Court’s case-law for the proposition that prior judicial (or independent) authorisation was required for the operation of a strategic monitoring regime by virtue of the fact that some journalistic material might be intercepted in the course of that regime’s operation. Rather, the Court had drawn a sharp distinction between the strategic monitoring of communications and/or communications data, which might inadvertently “sweep up” some journalistic material, and measures that targeted journalistic material (see Weber and Saravia, cited above, § 151, and contrast Sanoma Uitgevers B.V ., cited above, and Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, 22 November 2012). A requirement of prior judicial authorisation would make no sense in the context of bulk interception, since the judge could only be told that there was a possibility that the execution of the warrant might result in the interception of some confidential journalistic material.", "434. That being said, the Government accepted the Chamber’s conclusion that further protection was required at the point of selection for examination. It therefore confirmed that the IC Code had been amended to provide that “[p]articular consideration should be given to the interception of communications or the selection for examination of content containing information where individuals might reasonably assume a high degree of confidentiality. This includes where the communications contain information that is legally privileged; confidential journalistic material or where communications identify a journalist’s source”.", "(c) The third party interveners", "(i) The Government of France", "435. The Government of France argued that the surveillance of journalists was permissible under Article 10 of the Convention if it pursued a legitimate aim and was necessary, and if the measure did not target the journalists and was not aimed at identifying their sources. No parallel could be drawn between the situation where journalists’ communications were intercepted by chance, and where a decision of the national authorities required a journalist to reveal his or her sources.", "(ii) The Government of the Kingdom of Norway", "436. The Norwegian Government submitted that the wide margin of appreciation allowed under Article 8 with regard to the decision to introduce a bulk interception regime also logically applied when the decision was scrutinised from the point of view of Article 10. It would defeat the nature and purpose of a bulk interception regime if the Court were to subject the decision to set it up to the “justified by an overriding requirement in the public interest” test simply because some of the intercepted communications might involve contact with journalists.", "(iii) The United Nations’ Special Rapporteur on the promotion of the right to freedom of opinion and expression", "437. The Special Rapporteur argued that surveillance measures interfered with the right to freedom of expression and therefore had to comply with Article 19(3) of the ICCPR, which required restrictions on expression to “only be such as are provided by law and are necessary” for the protection of the rights and reputations of others, national security, public order, or public health or morals. Mass surveillance programmes provided significant challenges to the requirement of accessible legislation, due to the complexity of how surveillance technologies functioned, vague legal standards for intercepting communications, and complicated and often classified administrative frameworks. In addition, there was a serious proportionality concern relating to interference with the work of journalists and protection of their sources. As human rights law afforded confidentiality a high standard of protection, restrictions should be exceptional and implemented by judicial authorities only and circumventions not authorised by judicial authorities according to clear and narrow legal rules should not be used to undermine source confidentiality. In this regard, the scope of the protection of confidential communications had to take account of the broad understanding of “journalist” under the ICCPR.", "(iv) Article 19", "438. Article 19 urged the Court to extend the same protection to NGOs as it normally extended to journalists.", "(v) The Helsinki Foundation for Human Rights", "439. The Helsinki Foundation submitted that the protection of journalistic sources was undermined not only by the surveillance of the content of journalists’ communications, but also by the surveillance of related metadata which could, by itself, allow for the identification of sources and informants. It was especially problematic that confidential information could be acquired without the journalists’ knowledge or control, thereby depriving them of their right to invoke confidentiality, and their sources of their ability to rely on guarantees of confidentiality.", "(vi) The Media Lawyers’ Association (“MLA”)", "440. The MLA expressed concern that mass surveillance regimes were capable of intercepting journalistic communications and communications data which could identify sources. In their view, the mere interception of journalistic material could interfere with Article 10 of the Convention, even if the material was not actually analysed. It was therefore imperative that appropriate safeguards were in place to protect the confidentiality of journalistic sources, regardless of the purpose for which information was collected. Moreover, a regime permitting States to intercept journalists’ communications without prior judicial authorisation was more likely to affect journalism that was in the public interest because the nature of such stories meant that the State would have a particular interest in identifying the sources. The risk would be particularly grave where the source was a government whistle-blower. The chilling effect of the mere potential that such sources would be identified was significant. As a consequence, the MLA argued that at a minimum Article 10 required prior independent judicial oversight of any attempt to obtain journalistic material or identify journalistic sources, and that the judicial process be inter partes.", "(vii) The National Union of Journalists (“NUJ”) and the International Federation of Journalists (“IFJ”)", "441. The NUJ and the IFJ submitted that the confidentiality of sources was indispensable for press freedom. They also expressed concern about the possible sharing of data retained by the United Kingdom with other countries. If confidential journalistic material were to be shared with a country which could not be trusted to handle it securely, it could end up in the hands of people who would harm the journalist or his or her source. In the interveners’ view, the safeguards in the updated IC Code and the Acquisition of Communications Data Code of Practice were not adequate, especially where the journalist or the identification of his or her source was not the target of the surveillance measure.", "The Court’s assessment", "(a) General principles on the protection of journalists’ sources", "442. As freedom of expression constitutes one of the essential foundations of a democratic society, the Court has always subjected the safeguards for respect of freedom of expression in cases under Article 10 of the Convention to special scrutiny. The safeguards to be afforded to the press are of particular importance, and the protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information may be affected adversely (see, inter alia, Goodwin v. the United Kingdom, no. 17488/90, § 39, 27 March 1996; Sanoma Uitgevers B.V ., cited above, § 50; and Weber and Saravia, cited above, § 143).", "443. Orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure; and on members of the public, who have an interest in receiving information imparted through anonymous sources. There is, however, “a fundamental difference” between the authorities ordering a journalist to reveal the identity of his or her sources, and the authorities carrying out searches at a journalist’s home and workplace with a view to uncovering his or her sources (compare Goodwin, cited above, § 39, with Roemen and Schmit v. Luxembourg, no. 51772/99, § 57, ECHR 2003 ‑ IV). The latter, even if unproductive, constitutes a more drastic measure than an order to divulge a source’s identity, since investigators who raid a journalist’s workplace have access to all the documentation held by the journalist (see Roemen and Schmit, cited above, § 57).", "444. An interference with the protection of journalistic sources cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest (see Sanoma Uitgevers B.V ., cited above, § 51; Goodwin, cited above, § 39; Roemen and Schmit, cited above, § 46; and Voskuil v. the Netherlands, no. 64752/01, § 65, 22 November 2007). Furthermore, any interference with the right to protection of journalistic sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake (see Sanoma Uitgevers B.V ., cited above, §§ 88-89). First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not (see Sanoma Uitgevers B.V ., cited above, §§ 88-90).", "445. Given the preventive nature of such review the judge or other independent and impartial body must be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be assessed properly. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalist’s sources (see Sanoma Uitgevers B.V ., cited above, § 92 and Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005 ‑ XIII). In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk (see, mutatis mutandis, Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 62-66, ECHR 2007 ‑ XI).", "(b) Article 10 in the bulk interception context", "446. In Weber and Saravia the Court recognised that the “strategic monitoring” regime had interfered with the first applicant’s freedom of expression as a journalist. However, in so finding it considered it decisive that the surveillance measures were not aimed at monitoring journalists or uncovering journalistic sources. As such, it found that the interference with the first applicant’s freedom of expression could not be characterised as particularly serious and, in view of the attendant safeguards, it declared her complaints inadmissible as manifestly ill-founded (see Weber and Saravia, cited above, §§ 143-145 and 151).", "(c) The approach to be adopted in the present case", "447. Under the section 8(4) regime, confidential journalistic material could have been accessed by the intelligence services either intentionally, through the deliberate use of selectors or search terms connected to a journalist or news organisation, or unintentionally, as a “bycatch” of the bulk interception operation.", "448. Where the intention of the intelligence services is to access confidential journalistic material, for example, through the deliberate use of a strong selector connected to a journalist, or where, as a result of the choice of such strong selectors, there is a high probability that such material will be selected for examination, the Court considers that the interference will be commensurate with that occasioned by the search of a journalist’s home or workplace; regardless of whether or not the intelligence services’ intention is to identify a source, the use of selectors or search terms connected to a journalist would very likely result in the acquisition of significant amounts of confidential journalistic material which could undermine the protection of sources to an even greater extent than an order to disclose a source (see Roemen and Schmit, cited above, § 57). Therefore, the Court considers that before the intelligence services use selectors or search terms known to be connected to a journalist, or which would make the selection of confidential journalistic material for examination highly probable, the selectors or search terms must have been authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether they were “justified by an overriding requirement in the public interest” and, in particular, whether a less intrusive measure might have sufficed to serve the overriding public interest (see Sanoma Uitgevers B.V ., cited above, §§ 90-92).", "449. Even where there is no intention to access confidential journalistic material, and the selectors and search terms used are not such as to make the selection of confidential journalistic material for examination highly probable, there will nevertheless be a risk that such material could be intercepted, and even examined, as a “bycatch” of a bulk interception operation. In the Court’s view, this situation is materially different from the targeted surveillance of a journalist through either the section 8(1) or the section 8(4) regimes. As the interception of any journalistic communications would be inadvertent, the degree of interference with journalistic communications and/or sources could not be predicted at the outset. Consequently, it would not be possible at the authorisation stage for a judge or other independent body to assess whether any such interference would be “justified by an overriding requirement in the public interest” and, in particular, whether a less intrusive measure might have sufficed to serve the overriding public interest.", "450. In Weber and Saravia the Court held that the interference with freedom of expression caused by strategic monitoring could not be characterised as particularly serious as it was not aimed at monitoring journalists and the authorities would know only when examining the intercepted telecommunications, if at all, that a journalist’s communications had been monitored (see Weber and Saravia, cited above, § 151). Therefore, it accepted that the initial interception, without examination of the intercepted material, did not constitute a serious interference with Article 10 of the Convention. Nevertheless, as the Court has already observed, in the current, increasingly digital, age technological capabilities have greatly increased the volume of communications traversing the global Internet, and as a consequence surveillance which is not targeted directly at individuals has the capacity to have a very wide reach indeed, both within and without the territory of the surveilling State (see paragraphs 322-323 above). As the examination of a journalist’s communications or related communications data by an analyst would be capable of leading to the identification of a source, the Court considers it imperative that domestic law contain robust safeguards regarding the storage, examination, use, onward transmission and destruction of such confidential material. Moreover, even if a journalistic communication or related communications data have not been selected for examination through the deliberate use of a selector or search term known to be connected to a journalist, if and when it becomes apparent that the communication or related communications data contain confidential journalistic material, their continued storage and examination by an analyst should only be possible if authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether continued storage and examination is “justified by an overriding requirement in the public interest”.", "(d) Application of the aforementioned test to the facts of the present case", "451. In Weber and Saravia the Court expressly recognised that the impugned surveillance regime had interfered with the first applicant’s right to freedom of expression as a journalist (see Weber and Saravia, cited above, §§ 143-145). In the present case, the Court has accepted that the operation of the section 8(4) regime interfered with all of the applicants’ rights under Article 8 of the Convention (see paragraphs 324-331 above). As the applicants in the second of the joined cases’ were a newsgathering organisation and a journalist respectively, the Court would accept that the section 8(4) regime also interfered with their right under Article 10 of the Convention to freedom of expression as journalists.", "452. As already noted, the section 8(4) regime had a clear basis in domestic law (see paragraphs 365 and 366 above). However, in assessing foreseeability and necessity under Article 8 of the Convention, the Court identified the following deficiencies in the regime and its attendant safeguards: the absence of independent authorisation (see paragraph 377 above); the failure to identify the categories of selectors in the application for a warrant (see paragraphs 381-382 above); and the absence of prior internal authorisation for selectors linked to an identifiable individual (see paragraph 382 above).", "453. Nonetheless, some additional safeguards in respect of confidential journalistic material were set out in paragraphs 4.1-4.3 and 4.26-4.31 of the IC Code (see paragraph 96 above). According to paragraph 4.1, any application for a warrant had to state whether the interception was likely to give rise to a collateral infringement of privacy, including where journalistic communications were involved and, where possible, it had to specify the measures to be taken to reduce the extent of the collateral intrusion. However, paragraph 4.1 only required the Secretary of State to take these circumstances and measures into account when considering an application for a section 8(1) warrant, that is, a warrant authorising targeted interception. Paragraph 4.2 further provided that “particular consideration should also be given” in cases where confidential journalistic material might have been involved, and paragraph 4.26 stated that “particular consideration” had to be given to the interception of communications that involved confidential journalistic material.", "454. According to the Government paragraph 4.28 also applied to confidential journalistic material. Where the intention was to acquire confidential personal information, paragraph 4.28 indicated that the reasons and the specific necessity and proportionality of doing so had to be documented clearly. If the acquisition of such material was likely but not intended, any possible mitigation steps had to be considered and, if none were available, consideration had to be given to whether special handling arrangements were required within the intercepting agency (see paragraph 96 above). The Court notes, however, that in paragraph 4.26 of the IC Code, “confidential personal information” appeared to be something distinct from “confidential journalistic material” (see paragraph 96 above).", "455. As for the storage of confidential material, paragraph 4.29 of the IC Code provided that such material could only be retained where it was necessary and proportionate for one of the authorised purposes in section 15(4) of RIPA, and it had to be destroyed securely when it was no longer needed for one of those purposes (see paragraph 96 above). Furthermore, according to paragraph 4.30, if it was retained or disseminated to an outside body, reasonable steps had to be taken to mark the information as confidential. Where there was any doubt as to the lawfulness of the proposed dissemination of confidential information, advice had to be sought from a legal adviser within the relevant intercepting agency and before any further dissemination of the material could take place (see paragraph 96 above). Finally paragraph 4.31 required that the IC Commissioner be notified of the retention of such material as soon as reasonably practicable, and that such material be made available to him on request (see paragraph 96 above).", "456. In light of the above, the Court would accept that the safeguards in the IC Code concerning the storage, onward transmission and destruction of confidential journalistic material were adequate. However, the additional safeguards in the IC Code did not address the weaknesses identified by the Court in its analysis of the regime under Article 8 of the Convention, nor did they satisfy the requirements identified by the Court at paragraphs 448 ‑ 450 above. In particular, there was no requirement that the use of selectors or search terms known to be connected to a journalist be authorised by a judge or other independent and impartial decision-making body invested with the power to determine whether it was “justified by an overriding requirement in the public interest” and whether a less intrusive measure might have sufficed to serve the overriding public interest. On the contrary, where the intention was to access confidential journalistic material, or that was highly probable in view of the use of selectors connected to a journalist, all that was required was that the reasons for doing so, and the necessity and proportionality of doing so, be documented clearly.", "457. Moreover, there were insufficient safeguards in place to ensure that once it became apparent that a communication which had not been selected for examination through the deliberate use of a selector or search term known to be connected to a journalist nevertheless contained confidential journalistic material, it could only continue to be stored and examined by an analyst if authorised by a judge or other independent and impartial decision ‑ making body invested with the power to determine whether its continued storage and examination was “justified by an overriding requirement in the public interest”. Instead, all that was required by paragraph 4.2 of the IC Code was that “particular consideration” be given to any interception which might have involved the interception of confidential journalistic material, including consideration of any possible mitigation steps (see paragraph 96 above).", "458. In view both of these weakness, and those identified by the Court in its consideration of the complaint under Article 8 of the Convention, it finds that there has also been a breach of Article 10 of the Convention by virtue of the operation of the section 8(4) regime.", "THE RECEIPT OF INTELLIGENCE FROM FOREIGN INTELLIGENCE SERVICESArticle 8 of the Convention", "Article 8 of the Convention", "Article 8 of the Convention", "459. The applicants in the first of the joined cases complained about the receipt by the United Kingdom authorities of material from foreign intelligence services. The applicants in the third of the joined cases complained more specifically that the respondent State’s receipt of material intercepted by the NSA under PRISM and Upstream was in breach of their rights under Article 8 of the Convention.", "Scope of the complaint before the Grand Chamber", "460. In the Liberty proceedings the IPT identified three categories of material which could be received from foreign intelligence partners: unsolicited intercept material; solicited intercept material; and non-intercept material. As the Government informed the Chamber that it was “implausible and rare” for intercept material to be obtained “unsolicited”, the Chamber did not examine material falling into this category (see paragraph 417 of the Chamber judgment). The Chamber also declined to examine the receipt of non-intercept material, since the applicants had not specified the kind of material foreign intelligence services might obtain by methods other than interception and, as such, it was not satisfied that they had demonstrated that its acquisition would interfere with their Article 8 rights (see paragraph 449 of the Chamber judgment). The applicants have not contested either of these findings.", "461. Furthermore, as the Liberty proceedings were brought by the applicants in the third of the joined cases, the IPT only considered the receipt of intelligence from the NSA. In their submissions before the Chamber and the Grand Chamber, the parties also focused on the receipt of material from the NSA.", "462. The Grand Chamber will therefore limit its examination to the complaint about the receipt of solicited intercept material from the NSA.", "The Government’s preliminary objection", "463. The Government argued that the applicants in the first and third of the joined cases could not claim to be victims of the alleged violation because neither of the two conditions in Roman Zakharov (cited above, §171) were met (namely, the applicants could not possibly have been affected by the legislation permitting secret surveillance measures, and remedies were available at the national level). In particular, they argued that the applicants had put forward no basis on which they were at realistic risk either of having their communications intercepted under PRISM or Upstream, or of having their communications requested by the United Kingdom intelligence services. In addition, they submitted that the applicants had available to them an effective domestic remedy to discover whether they were the subject of unlawful intelligence sharing.", "(a) The Chamber judgment", "464. As the Chamber accepted that the IPT had afforded the applicants an effective remedy for their Convention complaint, it considered that they could only claim to be “victims” on account of the mere existence of the intelligence sharing regime if they were able to show that they were potentially at risk of having their communications obtained by the United Kingdom authorities through a request to a foreign intelligence service (see paragraphs 392-393 of the Chamber judgment, referring to Roman Zakharov, cited above, § 171).", "465. On the basis of the information submitted to it, the Chamber found that the applicants were potentially at risk both of having their communications obtained by a foreign intelligence service, and requested from a foreign intelligence service by the United Kingdom authorities (see paragraph 395 of the Chamber judgment). Although they could only have had their communications requested if there was either an Article 8(1) or 8(4) warrant in place which covered their communications, it was clear from the Liberty proceedings that at least two of the applicants in the third of the joined cases had their communications lawfully intercepted and selected for examination by the United Kingdom intelligence services under the section 8(4) regime. While the Chamber found no reason to believe that these applicants were themselves of interest to the intelligence services, it observed that their communications could have been obtained lawfully under the section 8(4) regime if, as they claimed, they were in contact with persons who were. Similarly, their communications could have been requested lawfully from a third country under the intelligence sharing regime if they were in contact with an individual who was the subject of a request.", "466. As Upstream functioned in a similar manner to the section 8(4) regime, the Chamber also accepted that the applicants’ communications could potentially have been obtained by the NSA.", "(b) The Court’s assessment", "467. The applicants have not challenged the Chamber’s finding that the IPT offered an effective domestic remedy for Convention complaints about the operation of a surveillance regime, and, for the reasons expounded in paragraphs 413-415 above, the Grand Chamber agrees with that finding. Therefore, as the Chamber observed, the applicants could only claim to be “victims” on account of the mere existence of the intelligence sharing regime if they were able to show that they were potentially at risk of having their communications obtained by the United Kingdom authorities through a request to a foreign intelligence service (see Roman Zakharov, cited above, § 171). This would only be the case if they were potentially at risk both of having their communications intercepted by a foreign intelligence service and of having those communications requested by GCHQ.", "468. The Government, focusing on the receipt of intelligence from the United States, argued that the applicants were not potentially at risk of having their communications intercepted under Upstream, as it was a targeted interception regime. However, according to the NSA, prior to April 2017 Upstream acquired communications to, from or about a section 702 selector (such as an email address); and only from April 2017 onwards it acquired communications to or from a section 702 selector (see paragraph 263 above). Given that section 702 selectors were applied to all communications flowing over specified cables, it would appear that Upstream was not so very different to the section 8(4) regime, which also intercepted all communications flowing over a number of cables and filtered them using selectors. The only apparent difference between the two regimes was that from April 2017 the NSA could only search for communications to or from a strong selector, while GCHQ retained the ability to perform searches by way of complex queries.", "469. In the course of the Liberty proceedings the IPT confirmed that at least two of the applicants in the third of the joined cases had not only had some of their communications intercepted pursuant to a section 8(4) warrant, but had also had those communications lawfully and proportionately retained pursuant to that warrant (see paragraphs 58-60 above). In order to have been retained lawfully those communications must have matched either a “strong selector” (pertaining either to the applicants or someone they were in contact with) or a “complex query”. The Court would accept that if some of the applicants’ communications matched a “strong selector” used by GCHQ, they would also have been potentially at risk of being intercepted and retained by the NSA under Upstream on the basis that they were “to” or “from” a section 702 selector. Even if they did not match a strong selector, some of the applicants’ communications must nevertheless have been of intelligence interest. Prior to April 2017 they could also have been intercepted and retained under Upstream if they were “about” a section 702 selector. If this was the case, at the relevant time (that is, 7 November 2017) those communications may still have been held by the NSA since, following the change in policy in April 2017, it only indicated that it would delete previously acquired Upstream Internet communications “as soon as practicable” (see paragraph 263 above). Therefore, communications acquired before that date which were “about” a strong selector might have continued to be stored by the NSA for some time thereafter.", "470. Consequently, the Court would accept that at the relevant time (that is, 7 November 2017) the applicants in the first and third of the joined cases were potentially at risk of having had at least some of their communications intercepted and retained under Upstream.", "471. Nevertheless, the applicants could still only be victims for the purposes of the intelligence sharing regime if they were also potentially at risk of having their communications requested by GCHQ, and such a request could only have been made where a warrant was already in place for the material sought. However, as the Court has already noted, the fact that the communications of at least two of the applicants in the third of the joined cases were retained by GCHQ suggests that at least some of their communications were covered by a section 8(4) warrant. Consequently, the Court would accept that the applicants in the first and third of the joined cases were potentially at risk of also having their communications requested by GCHQ.", "472. Accordingly, it finds that the applicants in the first and third of the joined cases can claim to be victims in respect of their complaints about the intelligence sharing regime. The Government’s preliminary objection is therefore dismissed.", "The merits", "(a) The Chamber judgment", "473. In considering the Article 8 compliance of the regime governing the receipt of intercept material from foreign intelligence services such as the NSA, the Chamber applied a modified version of the six minimum safeguards (see paragraph 275). Since the first two requirements could not apply to the act of requesting intercept material from foreign governments, the Chamber instead asked whether the circumstances in which intercept could be requested was circumscribed sufficiently to prevent States from using the power to circumvent domestic law or their Convention obligations. It then applied the final four requirements to the treatment of intercept material once it had been obtained by the United Kingdom intelligence services.", "474. The Chamber considered that the domestic law, together with the clarifications brought by the amendment of the IC Code, indicated with sufficient clarity the procedure for requesting either interception or the conveyance of intercept material from foreign intelligence services. Moreover, the Chamber found no evidence of any significant shortcomings in the application and operation of the regime. It therefore held, by a majority, that there had been no violation of Article 8 of the Convention.", "(b) The parties’ submissions", "475. The applicants submitted that the safeguards in place in respect of the intelligence sharing regime were inadequate. In particular, they argued that the problems which had led the Chamber to find a violation of Article 8 of the Convention in respect of the bulk interception regime (that is, the lack of oversight of the use of selectors and the inadequate safeguards in respect of related communications data) applied equally to the intelligence sharing regime.", "476. The Government, on the other hand, submitted that the intelligence sharing regime had a clear basis in domestic law, being set down in statute supplemented by Chapter 12 of the IC Code; and that law had been accessible. With regard to foreseeability, the Government argued that instead of applying a modified version of the six minimum safeguards, the Chamber should instead have applied the more general test – commonly applied in intelligence gathering cases which did not involve the interception of communications – of whether the law indicated the scope of any discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference. In any event, the Government contended that the intelligence sharing regime satisfied the six minimum safeguards. The IC Code clearly described the nature of offences which could lead to intelligence being obtained; the limits on the duration of such obtaining; the process for examining, using and storing the intelligence obtained; and the circumstances in which the intelligence was to be erased or destroyed.", "477. Finally, in the Government’s view there was no good reason to single out intercepted communications and related communications data from other types of information that might in principle be obtained from a foreign intelligence service, such as intelligence from covert human intelligence sources, or covert audio/visual surveillance. Indeed, in many cases the intelligence services might not even know whether communications provided to them by a foreign intelligence service had been obtained as a result of interception.", "(c) The third parties’ submissions", "(i) The Government of France", "478. The French Government pointed out that intelligence sharing between partner services – either on an ad hoc or regular basis – was vitally important, especially in the fight against the increasingly transnational and diffusive threats which States had to prevent, primarily by identifying suspects before they acted. That fight justified the development of an intelligence community, without which intelligence services, with their limited ability to act overseas, would be unable to accomplish the task assigned to them.", "479. The French Government further submitted that in the context of intelligence sharing the interference occurred not with the interception but rather with the obtaining of information, even if the material was intercepted at the behest of the receiving State. It noted the approach taken by the Chamber in analysing the United Kingdom intelligence sharing regime and invited the Grand Chamber to adopt the same approach.", "480. In the Government’s view, the reliability of the receiving service was one of the main criteria on which the sending State based its decision to exchange data, and as a consequence the receiving State had to guarantee the strict confidentiality of the information communicated to it. Therefore, the guarantees required for the handling of intelligence collected through an exchange of data with a partner service had to be in keeping with the “third party rule”, which prohibited an agency which had received information from a foreign partner from sharing it with a third party without the consent of the originator. Without such an assurance, States might refuse to transfer information.", "(ii) The United Nations’ Special Rapporteur on the promotion of the right to freedom of opinion and expression", "481. The Special Rapporteur argued that the same standards should apply to the acquisition of data from foreign intelligence services as applied when the domestic authorities acquired data themselves. A contrary position could lead State authorities to de facto outsource surveillance operations circumventing the protections afforded in the ICCPR.", "(iii) Access Now", "482. Access Now contended that while Mutual Legal Assistance Treaties (“MLATs”) offered a transparent and formal process for one State party to request intelligence from another, the operation of secret signals intelligence programmes (for example, the Five Eyes intelligence sharing network of which the United Kingdom, the United States of America, Australia, Canada and New Zealand were members) were not transparent and were prohibited by international human rights standards. Such secret programmes were not necessary, since the relevant intelligence could be obtained under MLATs.", "(iv) Dutch Against Plasterk (“Burgers tegen Plasterk”)", "483. Dutch Against Plasterk, a coalition of five individuals and four associations, were applicants in a case against the Netherlands in which they sought to challenge the exchange of data between the Dutch authorities and their foreign intelligence partners (including the United States and the United Kingdom).", "484. In their third party intervention before this Court, the coalition argued that the sharing of intelligence should only be permitted if it was accompanied by sufficient safeguards and the foreign authority had a sound legal basis for capturing the material. Otherwise, there could be a circumvention of the protection provided by Article 8 of the Convention. States should not be allowed to obtain material from foreign authorities that they could not lawfully capture themselves.", "(v) Center for Democracy and Technology (“CDT”) and Pen American Center (“PEN America”)", "485. CDT and PEN America argued that the circumstances of international cooperation in bulk data and communications surveillance required that at least three conditions were met: that States actively assessed and satisfied themselves as to the adequacy of their foreign partners’ legal and administrative framework governing interception, and set out these adequacy measures in domestic law; that there was independent – preferably judicial – authorisation, based on a finding of reasonable suspicion, for the use of selectors identifiable to specific targets to query information obtained from foreign partners; and that there was a requirement of subsequent notification to the surveillance subjects.", "486. CDT and PEN America submitted that the interception regimes operated by the NSA – most notably, under section 702 of FISA and Executive Order 12333 – would satisfy neither the “in accordance with the law” nor the “proportionality” requirements of Article 8 of the Convention, and these deficiencies tainted the lawfulness of the United Kingdom’s intelligence sharing regime.", "(vi) European Network of National Human Rights Institutions (“ENNHRI”)", "487. The ENNHRI provided examples from Contracting States which in their view showed that the nature of international intelligence sharing had changed significantly so that it had become difficult to distinguish between “solicited” and “unsolicited” data. Historically, international intelligence sharing had involved the transfer of evaluated data, or finished intelligence. However, the advent of new technology had resulted in the increasing exchange of unevaluated “raw” data. Even where there was an agreement governing bilateral or multilateral intelligence co-operation the advent of automation and big data made it much more challenging to evaluate what one party received from another, including whether the information remained within the parameters of the original request. Consequently, there was a need for robust independent oversight of international intelligence sharing without distinction between solicited and unsolicited data. Oversight bodies should be legally mandated to oversee all matters of international cooperation by their intelligence services; cooperate with independent oversight bodies from the third States involved in the intelligence sharing; and hire independent specialists, with expertise in modern information and communications technology, where required.", "(vii) Human Rights Watch (“HRW”)", "488. Although the present applications focused on the receipt of foreign intelligence from the United States, HRW believed that the network of States with which communications intelligence was shared was vastly larger. For example the “Five Eyes Alliance” comprised the United Kingdom, the United States, Australia, Canada and New Zealand, and there were also thought to be other, more restricted intelligence sharing coalitions (for example, the “Nine Eyes”, adding Denmark, France, the Netherlands and Norway; the “Fourteen Eyes”, adding Germany, Belgium, Italy, Spain and Sweden; and the “Forty-One Eyes”, adding in others in the allied coalition in Afghanistan).", "(viii) Open Society Justice Initiative (“OSJI”)", "489. OSJI argued that States should not receive or request data from a third party in a manner that circumvented individuals’ Article 8 rights. To ensure that this did not happen, safeguards were required at the point when the material was first gathered, including prior scrutiny of the human rights record and interception laws and practices in the foreign State, and independent, preferably judicial, a posteriori oversight of any sharing arrangements to ensure that the safeguards were in place and enforced.", "(ix) The Electronic Privacy Information Center (“EPIC”)", "490. EPIC submitted that United States’ law authorised mass, indiscriminate surveillance of non-US persons. This surveillance took place pursuant to section 702 of FISA and Executive Order 12333. Surveillance under section 702 took place in the United States with the compelled assistance of service providers and it targeted non-US persons reasonably believed to be located outside the United States. There was no prior judicial review of surveillance activity; no reasonable suspicion was required; and there was no statutory obligation to notify subjects of surveillance. All that was required was that the FISC annually review the targeting and minimization procedures aimed at limiting the acquisition of the communications of US persons or persons located in the United States.", "491. Executive Order 12333 authorised the NSA to acquire foreign intelligence and counterintelligence. The order provided broad authority to conduct signals intelligence surveillance from a wide variety of sources, including fibre optic networks. Collection occurred outside the territory of the United States. There were no reports or official disclosures concerning the scope of surveillance under the order, which was not subject to judicial oversight.", "492. In EPIC’s view, surveillance by the NSA would violate Article 8 of the Convention for failure to limit the scope of application and duration, and the failure to provide adequate supervision, notice and remedies.", "(x) The International Commission of Jurists (“ICJ”)", "493. The ICJ referred the Court to Articles 15 and 16 of the Articles of State Responsibility of the International Law Commission (“the ILC Articles”). They contended that, pursuant to Article 15, a Contracting State could be responsible for mass surveillance conducted by a non-Contracting State if they were acting in organised and structured forms of co-operation; and that, pursuant to Article 16, a Contracting State could be responsible for mass surveillance conducted by a non-Contracting State if it contributed to the surveillance programme and had actual or constructive knowledge of the breaches of international human rights obligations inherent in the system. The ICJ further submitted that Contracting States participating in or contributing to a mass surveillance programme were obliged to establish a system of safeguards for the protection of Article 8 rights, and were also under a duty to protect persons within their jurisdiction from violations of Article 8 rights caused by mass surveillance programmes.", "(xi) The Law Society of England and Wales", "494. The Law Society submitted that the section 8(4) regime and associated Codes provided no robust or transparent safeguards for legally privileged material. Since the same safeguards applied to privileged material obtained by foreign States and disclosed to the intelligence services of the United Kingdom, the same deficiencies also tainted that regime.", "(d) The Court’s assessment", "(i) The applicable test", "495. In the Chamber’s view, the interception of communications by foreign intelligence services could not engage the responsibility of a receiving State, or fall within that State’s jurisdiction within the meaning of Article 1 of the Convention, even if the interception was carried out at that State’s request (see paragraph 420 of the Chamber judgment). First of all, in so far as some of the third parties had invoked the ILC Articles, the Chamber considered that these would only be relevant if the foreign intelligence services were placed at the disposal of the receiving State and were acting in exercise of elements of the governmental authority of that State (Article 6); if the receiving State aided or assisted the foreign intelligence services in intercepting the communications where that amounted to an internationally wrongful act for the State responsible for the services, the receiving State was aware of the circumstances of the internationally wrongful act, and the act would have been internationally wrongful if committed by the receiving State (Article 16); or if the receiving State exercised direction or control over the foreign Government (Article 17). Secondly, according to the Court’s case-law the interception of communications by a foreign intelligence service could only fall within the receiving State’s jurisdiction if that State was exercising authority or control over the foreign intelligence service (see, for example, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 130-139, ECHR 2011 and Jaloud v. the Netherlands [GC], no. 47708/08, §§ 139 and 151 ECHR 2014).", "496. The Grand Chamber agrees with the Chamber that none of these elements were present in the situation under consideration and, indeed, in their pleadings before the Grand Chamber the applicants have not suggested that they were. Therefore, any interference with Article 8 of the Convention could only lie in the initial request and the subsequent receipt of intercept material, followed by its subsequent storage, examination and use by the intelligence services of the receiving State.", "497. The protection afforded by the Convention would be rendered nugatory if States could circumvent their Convention obligations by requesting either the interception of communications by, or the conveyance of intercepted communications from, non-Contracting States; or even, although not directly in issue in the cases at hand, by obtaining such communications through direct access to those States’ databases. Therefore, in the Court’s view, where a request is made to a non-contracting State for intercept material the request must have a basis in domestic law, and that law must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov, cited above, § 228). It will also be necessary to have clear detailed rules which give citizens an adequate indication of the circumstances in which and the conditions on which the authorities are empowered to make such a request (see Roman Zakharov, cited above, § 229; Malone, cited above, § 67; Leander, cited above, § 51; Huvig, cited above, § 29; Kruslin, cited above, § 30; Valenzuela Contreras, cited above, § 46; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75) and which provide effective guarantees against the use of this power to circumvent domestic law and/or the States’ obligations under the Convention.", "498. Upon receipt of the intercept material, the Court considers that the receiving State must have in place adequate safeguards for its examination, use and storage; for its onward transmission; and for its erasure and destruction. These safeguards, first developed by the Court in its case-law on the interception of communications by Contracting States, are equally applicable to the receipt, by a Contracting State, of solicited intercept material from a foreign intelligence service. If, as the Government contend, States do not always know whether material received from foreign intelligence services is the product of interception, then the Court considers that the same standards should apply to all material received from foreign intelligence services that could be the product of intercept.", "499. Finally, the Court considers that any regime permitting the intelligence services to request either interception or intercept material from non-Contracting States, or to directly access such material, should be subject to independent supervision, and there should also be the possibility for independent ex post facto review.", "(ii) Application of that test to the case at hand", "500. The British-US Communication Intelligence Agreement of 5 March 1946 specifically permitted the exchange of material between the United States and the United Kingdom (see paragraph 103 above). However, details of the intelligence services’ internal (or “below the waterline”) arrangements were only disclosed during the Liberty proceedings (see paragraphs 33-36 above). This new information was later incorporated into Chapter 12 of the IC Code (see paragraph 116 above) which, as already noted, was a public document, subject to the approval of both Houses of Parliament, and which had to be taken into account both by those exercising interception duties and by courts and tribunals (see paragraph 93-94 above). The Court has accepted that the provisions of the IC Code could be taken into consideration in assessing the foreseeability of the RIPA regime (see Kennedy, cited above, § 157 and paragraph 366 above) and the same must necessarily be true for the intelligence sharing regime.", "501. Accordingly, the Court considers that the regime for requesting and receiving intelligence from non-Contracting States had a clear basis in domestic law and, following the amendment to the IC Code, that law was adequately accessible. As it undoubtedly pursued the legitimate aims of protecting national security, preventing disorder and crime and protecting the rights and freedoms of others, the Court will now – in line with its usual methodology (see paragraph 334 above) – assess, jointly, the foreseeability and necessity of the intelligence sharing regime.", "502. Chapter 12 of the IC Code (see paragraph 116 above) follows the same approach as the one adopted by domestic legislation in respect of bulk interception. According to Chapter 12 the intelligence services could only make a request to a foreign government for unanalysed intercepted communications and/or associated communications data if a relevant interception warrant under RIPA had already been issued by the Secretary of State, the assistance of the foreign government was necessary to obtain the particular communications because they could not be obtained under the existing warrant (see paragraph 12.2 of the IC Code at paragraph 116 above), and it was necessary and proportionate for the intercepting agency to obtain those communications. For these purposes, a relevant RIPA interception warrant meant either a section 8(1) warrant in relation to the subject at issue; a section 8(4) warrant and an accompanying certificate which included one or more “descriptions of intercepted material” covering the subject’s communications; or, where the subject was known to be within the British Islands, a section 8(4) warrant and an accompanying certificate which included one or more “descriptions of intercepted material” covering his or her communications, together with an appropriate section 16(3) modification.", "503. Where exceptional circumstances existed, a request for communications could be made in the absence of a relevant RIPA interception warrant only if it did not amount to a deliberate circumvention of RIPA or otherwise frustrate its objectives (for example, because it was not technically feasible to obtain the communications via RIPA interception), and it was necessary and proportionate for the intercepting agency to obtain those communications. In such a case the request had to be considered and decided on by the Secretary of State personally, and, pursuant to the revised IC Code, notified to the IC Commissioner. According to information disclosed during the Liberty proceedings, and confirmed in the Government’s submissions before both the Chamber and Grand Chamber, no request for intercept material had ever been made in the absence of an existing RIPA warrant (see paragraph 42 above).", "504. In light of the foregoing, the Court considers that domestic law set down clear legal rules giving citizens an adequate indication of the circumstances in which and the conditions on which the authorities could request intercept material from a foreign State.", "505. Where either a relevant section 8(1) or a section 8(4) warrant was already in place, that warrant would have been authorised by the Secretary of State. More specifically, it would appear from paragraph 12.5 of the IC Code, read together with the accompanying footnote, that where a request was based on an existing warrant that request would be made to, from or about specific selectors (that is, relating to a specific individual or individuals ) and the Secretary of State would already have approved the request for the communications of those individuals. While, in exceptional circumstances, a request could be made in the absence of a relevant warrant, the Secretary of State personally had to approve the request and, if based on specific selectors, he or she personally had to consider and approve the examination of those communications by reference to such factors (see paragraph 116 above).", "506. As the domestic legislation followed, with respect to such requests for intelligence sharing, the same approach as in bulk interception, and as national law explicitly provided that there should be no circumvention, there is no need for the Court to look separately at the authorisation procedure.", "507. As for the safeguards for the examination, use, storage, onward transmission, erasure and destruction of the solicited intercept material, it was clear from paragraph 12.6 of the IC Code that intercepted content or related communications data obtained by the United Kingdom intelligence services from another State, which identified themselves as the product of intercept, had to be subject to the same internal rules and safeguards that applied to the same categories of content or data when they were obtained directly by the intercepting agencies as a result of interception under RIPA. Consequently, the safeguards in sections 15 and 16 of RIPA, as supplemented by the IC Code, applied equally to intercepted communications and communications data obtained from foreign intelligence services, provided that the material “identified itself as the product of intercept”.", "508. The Court has examined the section 15 and section 16 safeguards in respect of the bulk interception regime and it was satisfied that the procedures for storing, accessing, examining and using the material obtained; for communicating the material to other parties; and for the erasure and destruction of the material obtained were sufficiently clear and afforded adequate protection against abuse (see paragraphs 384-405 above). In light of the Court’s findings at paragraph 498 above, it notes that paragraph 12.6 of the IC does not extend the safeguards in sections 15 and 16 of RIPA, as supplemented by the IC Code, to all material received from foreign intelligence services that could be the product of intercept, limiting these safeguards only to material that identified itself as such; however, the Court does not consider this fact alone to be fatal to the Article 8 compliance of the intelligence sharing regime.", "509. In the context of the section 8(4) regime, the Court had concerns about the exemption of related communications data from the section 16 safeguard. However, under the section 8(4) regime the State was able to intercept, store and search all packets of communications travelling across certain bearers. The blanket exemption of related communications data from the section 16 safeguard therefore meant that all of these data, regardless of whether they were of any intelligence interest, could be searched by the intelligence services apparently without restriction. Under Chapter 12 of the IC Code, on the other hand, content and related communications data were not requested by the intelligence services in bulk. Paragraph 12.5 of the IC Code, together with its accompanying footnote, indicated that where a request was based on an existing warrant that request would be made to, from or about specific selectors (that is, specified individuals) and the Secretary of State would already have approved the request for the communications of those individuals. While in exceptional circumstances a request could be made in the absence of a warrant, the Secretary of State personally had to approve the request and, if based on specific selectors, he or she personally had to consider and approve the examination of those communications by reference to such factors. If the request was not for specific selectors, any communications subsequently obtained could not be examined according to a factor referable to a person known to be in the British Islands unless the Secretary of State had approved the examination of those communications (see paragraph 116 above). In other words, the intelligence services either requested intelligence relating to an individual for whom the Secretary of State had already considered the necessity and proportionality of obtaining his or her communications; or the section 16 safeguard was applicable to the material obtained. As no request has yet been made without a warrant, it would seem that, to date, all requests have fallen into the first category.", "510. Therefore, the Court considers that the United Kingdom had in place adequate safeguards for the examination, use and storage of the content and communications data received from intelligence partners; for the onward transmission of this material; and for its erasure and destruction.", "511. Finally, the Court observes that a further layer of protection was provided by the IC Commissioner and the IPT (see paragraph 41 above). The IC Commissioner had oversight of the intelligence sharing regime: paragraph 12.7 of the IC Code (see paragraph 116 above) required him to be notified of all requests made in the absence of a warrant, and he already supervised the granting of warrants and the storage of material by the intelligence services.", "512. In addition to the oversight of the IC Commissioner, the IPT provided ex post facto review of the intelligence sharing regime. As can be seen from the Liberty proceedings, it was open to anyone wishing to make either a specific or general complaint about the intelligence sharing regime to complain to the IPT; and, in response, the IPT was able to examine both the “above the waterline” and “below the waterline” arrangements in order to assess the Convention compliance of the regime.", "513. Consequently, the Court considers that the regime for requesting and receiving intercept material was compatible with Article 8 of the Convention. There existed clear detailed rules which gave citizens an adequate indication of the circumstances in which and the conditions on which the authorities were empowered to make a request to a foreign intelligence service; domestic law contained effective guarantees against the use of such requests to circumvent domestic law and/or the United Kingdom’s obligations under the Convention; the United Kingdom had in place adequate safeguards for the examination, use, storage, onward transmission, erasure and destruction of the material; and the regime was subject to independent oversight by the IC Commissioner and there was a possibility for ex post facto review by the IPT.", "514. Accordingly, there has been no violation of Article 8 of the Convention.", "Article 10 of the Convention", "515. The applicants in the third of the joined cases also complained that the intelligence sharing regime had breached their rights under Article 10 of the Convention. In so far as that complaint related to their activities as NGOs, the Chamber declared it inadmissible for non-exhaustion of domestic remedies as the applicants had raised it too late in the domestic proceedings for it to be considered (see paragraph 473 of the Chamber judgment). This aspect of the complaint is therefore outwith the scope of the Grand Chamber’s examination.", "516. The applicants in the third of the joined cases also complained more generally about the Article 10 compliance of the intelligence sharing regime. Although this argument was raised before the IPT in good time, the Court would agree with the Chamber that it gives rise to no separate issue over and above that arising out of Article 8 of the Convention (see paragraph 474 of the Chamber judgment). It therefore considers that there has also been no violation of Article 10 of the Convention.", "ACQUISITION OF COMMUNICATIONS DATA FROM COMMUNICATIONS SERVICE PROVIDERSArticle 8 of the Convention", "Article 8 of the Convention", "Article 8 of the Convention", "517. The applicants in the second of the joined cases complained that the regime for the acquisition of communications data under Chapter II of RIPA was incompatible with their rights under Article 8 of the Convention.", "The Chamber judgment", "518. At the date of the Chamber’s examination of the case the Government of the United Kingdom was in the process of replacing the existing legal framework for conducting secret surveillance with the new IPA. The provisions in the new legislation governing the retention of communications data by CSPs were subject to a domestic legal challenge by Liberty. In the course of those proceedings, the Government conceded that the relevant provision was inconsistent with the requirements of EU law. Consequently, the High Court found Part 4 to be incompatible with fundamental rights in EU law since, in the area of criminal justice, access to retained data was not limited to the purpose of combating “serious crime”; nor was it subject to prior review by a court or an independent administrative body (see paragraph 190 above).", "519. In view of both the primacy of EU law over United Kingdom law, and the Government’s concession in the domestic proceedings that the provisions of IPA governing the retention of communications data by CSPs was incompatible with EU law, the Chamber considered it “clear” that domestic law required that any regime permitting the authorities to access data retained by CSPs should limit access to the purpose of combating “serious crime”, and that access should be subject to prior review by a court or independent administrative body. As the predecessor regime suffered from the same “flaws” as its successor, the Chamber found that it could not be in accordance with the law within the meaning of Article 8 of the Convention (see paragraphs 465-468 of the Chamber judgment).", "The parties’ submissions", "520. The parties made no further submissions before the Grand Chamber in respect of this complaint.", "The Court’s assessment", "521. The Government did not contest the Chamber’s findings before the Grand Chamber. Furthermore, the latter finds no ground on which to disagree with the Chamber’s conclusions.", "522. Accordingly, the Court considers that in the present case there was a violation of Article 8 of the Convention on account of the fact that the operation of the regime under Chapter II of RIPA was not “in accordance with the law”.", "Article 10 of the Convention", "523. The applicants in the second of the joined cases also complained under Article 10 of the Convention about the regime for the acquisition of communications data from CSPs.", "The Chamber judgment", "524. The Chamber acknowledged that the Chapter II regime afforded enhanced protection where data were sought for the purpose of identifying a journalist’s source. In particular, paragraph 3.77 of the Acquisition of Communications Data Code of Practice provided that where an application was intended to determine the source of journalistic information, there had to be an overriding requirement in the public interest, and such applications had to use the procedures of the Police and Criminal Evidence Act 1984 (“PACE”) to apply to a court for a production order to obtain these data. Pursuant to Schedule 1 to PACE, an application for a production order was made to a judge and, where the application related to material that consisted of or included journalistic material, the application had to be made inter partes. Internal authorisation could only be used if there was believed to be an immediate threat of loss of human life, and that person’s life could be endangered by the delay inherent in the process of judicial authorisation (see paragraph 498 of the Chamber judgment).", "525. Nevertheless, these provisions only applied where the purpose of the application was to determine a source; they did not apply in every case where there was a request for the communications data of a journalist, or where such collateral intrusion was likely. Furthermore, in cases concerning access to a journalist’s communications data there were no special provisions restricting access to the purpose of combating “serious crime”. Consequently, the Chamber considered that the regime was not “in accordance with the law” for the purpose of the Article 10 complaint (see paragraphs 496-499 of the Chamber judgment).", "The parties’ submissions", "526. The parties made no further submissions before the Grand Chamber in respect of this complaint.", "The Court’s assessment", "527. The Government did not contest the Chamber’s findings before the Grand Chamber. Furthermore, the latter finds no ground on which to disagree with the Chamber’s conclusions.", "528. Accordingly, the Court considers that in the present case there has also been a violation of Article 10 of the Convention on account of the fact that the operation of the regime under Chapter II of RIPA was not “in accordance with the law”.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "529. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "530. The applicants did not submit any claim in respect of pecuniary or non-pecuniary damage. Accordingly, the Court considers that there is no call to award them any sum on that account.", "Costs and expenses", "531. Before the Chamber the applicants in the first of the joined cases claimed GBP 208,958.55 in respect of their costs and expenses; and the applicants in the second of the joined cases claimed GBP 45,127.89. The applicants in the third of the joined cases made no claim in respect of costs and expenses.", "532. The Chamber awarded the applicants in the first of the joined cases the sum of EUR 150,000 for the proceedings before it; and the applicants in the second of the joined cases the sum of EUR 35,000 for the proceedings before it.", "533. Before the Grand Chamber the applicants in the first of the joined cases claimed a further GBP 138,036.66; the applicants in the second of the joined cases claimed a further GBP 69,200.20; and the applicants in the third of the joined cases claimed GBP 44,993.60.", "534. The Government contested the quantum claimed.", "535. According to the Court’s case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the following sums covering costs under all heads for the proceedings before the Chamber: to the applicants in the first of the joined cases the sum of EUR 150,000; and the applicants in the second of the joined cases the sum of EUR 35,000. It also considers it reasonable to award the following sums covering costs under all heads for the proceedings before the Grand Chamber: to the applicants in the first of the joined cases, the sum of EUR 77,500; to the applicants in the second of the joined cases, the sum of EUR 55,000; and to the applicants in the third of the joined cases, the sum of EUR 36,000.", "Default interest", "536. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant company, a limited liability company registered in Vienna, was represented by Ms M. Windhager, a lawyer practising in Vienna.", "3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The Background TO the case", "5. The applicant is a limited liability company based in Vienna. It owns and publishes a daily newspaper published in print format ( Der Standard ), in digital format (as an “e-paper”) and in an online version ( derStandard.at ). The applicant company describes its work as being of a multi-media nature, and its editorial office ( Redaktion ) does not distinguish between the print and the digital medium. The online news portal run by the applicant company under derStandard.at (hereinafter “the portal”) carries articles assigned to it by the editorial office and discussion forums relating to those articles. At the end of each article, the applicant company invites registered users to post comments with a banner stating “Your opinion counts” and a field entitled “Your comment ...” that allows them to insert text.", "6. In the course of the registration process (during which new users have to accept the applicant company’s general terms and conditions, see paragraph 7 below), each user is required to submit his or her name, surname and email address to the applicant company; moreover, he or she may, optionally, submit a postal address. Users are informed that their data will not be seen publicly.", "7. The applicant company’s general terms and conditions state that its forums’ rules (the latest version of which can be found on the portal) must be complied with. Under the heading “Community guidelines” the applicant company reminds users that their comments are an essential and valuable part of the portal. It emphasises that the forums’ rules are to be respected and are taken into consideration during moderation, as the quality of discussions is of great concern to it. The portal is described as providing a platform for lively, interesting and inviting dialogue. Under a subheading entitled “quality features [ Qualitätsmerkmale ] of postings” the applicant company provides guidelines on how to write a comment. Under a subheading “forums’ rules” it reminds users that they are responsible for their own comments and that they may be held liable for them; moreover, it is indicated that the applicant company will only disclose user data if required to do so by law. Inter alia, personal attacks in the form of insults, threats or abuse, as well as defamatory statements or statements damaging to businesses, are not accepted. The applicant company reserves the right to delete posts that do not comply with the community guidelines. Offensive, discriminatory or hateful usernames are not tolerated.", "8. Under a subheading “procedure for moderation” the applicant company informs its users that it has installed an automated keyword ‑ screening system. All user comments are screened for problematic content by this system before they are published on the portal. In the event that the system flags a problematic comment, the publication of that comment becomes subject to a manual ex ante review.", "9. The automated screening system also takes other factors into account – in particular, the number of previous “hits” in respect of comments posted by the same user, or whether the comment was made by someone who has recently registered with the portal. Furthermore, all comments on material relating to particularly sensitive issues may have to undergo a manual review before publication. Discussion forums may be closed, if deemed necessary.", "10. After publication, user comments are subject to an editorial review by the applicant company on a regular basis.", "11. Moreover, the applicant company has implemented a “notice and take down” system by which other users can trigger a manual editorial review of published user comments by means of a “report” button.", "12. According to the applicant company, its moderators review up to 6,000 user comments per day and requests for deletion are granted liberally. User data are disclosed, upon request and in accordance with the law, to third parties if it is sufficiently clear that the comment in question may have violated a person’s rights.", "comments published on the portalComments concerning K.S. and the FPK", "Comments concerning K.S. and the FPK", "Comments concerning K.S. and the FPK", "13. On 19 March 2012 an article under the heading “[S.] Brothers take action against forum users” ( Gebrüder [S.] gehen gegen Foren-User vor ) was published on the portal. The article related, inter alia, to K.S., who was at that time a leader of Die Freiheitlichen in Kärnten (FPK), a right-wing regional political party that at the time of the events was represented in the Kärnten Regional Parliament and in the Regional Government in coalition with two other parties. The article quoted a remark made by K.S. describing people who attacked him in forums as “down-at-heel guys who sound off” ( Schmuddeltypen, die sich hier ausrotzen ). The article attracted more than 1,600 user comments.", "14. On 22 March 2012 a reader with the username “Tango Korrupti2013” posted the following comment relating to that article:", "“Corrupt politician-assholes forget, [but] we don’t ELECTION DAY IS PAYDAY!!!!!” ( Korrupte Polit-Arschlöcher vergessen, wir nicht WAHLTAG IST ZAHLTAG!!!!! )", "15. On 23 March 2012 a reader with the username “rrrn” posted the following comment:", "“[It was] to be expected that FPOe/K, ... ...-opponents would get carried away. [That would] not have happened if those parties had been banned for their ongoing Nazi revival.”", "(War zu erwarten, dass FPOe/K, ... -Gegner ueber die Straenge schlagen. Waere nicht passiert, wenn diese Parteien verboten worden waeren wegen ihrer dauernden Nazi-wiederbelebung.)", "16. On 16 April 2012, K.S. and the FPK requested the applicant company to disclose the name, address and email address (hereinafter “user data”, see paragraph 6 above) of the comments’ authors in order to be able to institute civil and criminal proceedings against them.", "17. On 18 April 2012, the applicant company replied that they had deleted the comments but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings.", "Comments concerning H.K.", "18. On 5 May 2013 an interview with H.K. under the heading “What you call uproar, I call effective advertising” ( Was Sie Aufruhr nennen, nenne ich Werbewirksamkeit ) was published on the portal. H.K. stated, inter alia, that posters and slogans had to generate emotion, because without emotion there could be no success in politics. He was at that time a member of the Austrian national assembly ( Nationalrat ) and the general secretary of the right-wing Austrian Freedom Party ( Freiheitliche Partei Österreichs, FPÖ).", "19. Following the publication of this interview, on the same day a reader with the username “try_error” posted the following comment:", "“[I]f we did not perpetually misunderstand [the meaning of] freedom of expression and if undermining our constitution and destabilising our form of government were consequently to be made punishable – or at least, if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [H.K.] would be one of the greatest criminals in the Second Republic ...”", "( würden wir nicht ewig meinungsfreiheit falsch verstehen und wäre das sägen an der verfassung und das destabilisieren unserer staatsform konsequent unter strafe gestellt, oder wäre wenigstens der mafiaparagraf einmal angewendet worden auf die rechtsextreme szene in österreich, dann wäre [H.K.] einer der größten verbrecher der 2ten republik ... )", "20. On 20 June 2013, H.K. asked the applicant company to delete the comment and to disclose the user data (see paragraphs 6 and 16 above) of the author in order to be able to institute civil and criminal proceedings against him.", "21. On 26 June 2013, the applicant company replied that it had deleted the comment but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings.", "Proceedings against the applicant companyProceedings initiated by K.S. and the FPK", "Proceedings initiated by K.S. and the FPK", "Proceedings initiated by K.S. and the FPK", "22. On 11 June 2012 K.S. and the FPK brought a civil action against the applicant company pursuant to section 18(4) of the E ‑ Commerce Act (see paragraph 37 below). K.S. claimed user data relating to the reader with the username “Tango Korrupti2013” (see paragraph 14 above). The FPK claimed user data relating to the reader with the username “rrrn” (see paragraph 15 above). K.S. and the FPK asserted that the respective posts constituted defamation ( Ehrenbeleidigungen; üble Nachrede ), within the meaning of Article 1330 of the Civil Code (see paragraph 34 below) and within the meaning of Article 111 of the Criminal Code, as well as insulting behaviour ( Beleidigung ) within the meaning of Article 115 of the Criminal Code, and that they needed the user data sought in order for them to be able to lodge claims against those users.", "23. The applicant company maintained that it was not obliged to disclose the user data because the comments at issue were not defamatory, but rather constituted permissible value judgments. It referred to K.S.’s position as a politician, the style that he adopted when making public statements, and the kind of expressions used by other members of the FPK. Moreover, it argued that it was – under section 31(1) of the Media Act (see paragraph 35 below), which regulated the protection of editorial confidentiality ( Redaktionsgeheimnis ) – entitled to refuse to disclose its sources.", "24. On 10 September 2013 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen Wien ) dismissed the action. It held that it could not be established whether the user comments at issue had undergone a manual review before publication. It considered that the applicant company had acted as a host provider and that section 18(4) of the E ‑ Commerce Act (see paragraph 37 below) was thus applicable. It argued that the question of whether a specific comment was covered by the right to freedom of expression was a matter that had to be examined on a case ‑ by ‑ case basis, given that the limits of acceptable criticism were wider for politicians than for private individuals. It went on to examine the content and the context of the postings and stated that they had been made several days after publication of the respective article as two out of more than 1,600 user comments (see paragraph 13 above). The court found that the comment posted by the reader with the username “Tango Korrupti2013” (see paragraph 14 above) did not directly refer to K.S. but was a general statement concerning a public discussion on corruption. It stated that the second comment posted by the reader with the username “rrrn” (see paragraph 15 above) directly referred to the FPK but was based on a sufficient factual basis given that members of the FPK had previously used terms that originated from the diction of National Socialists, such as “the healthy will of the people” ( gesundes Volksempfinden ) and “block warden” ( Blockwart ). The court concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiffs had not demonstrated that illegal acts had taken place. It was thus not necessary to examine the applicant company’s submissions concerning the protection of editorial confidentiality. The plaintiffs appealed.", "25. On 26 May 2014 the Vienna Court of Appeal ( Oberlandesgericht Wien ) allowed the plaintiffs’ appeal and ordered the applicant company to disclose the requested user data within fourteen days and to pay the costs incurred by the plaintiffs during the proceedings. It established that both comments at issue could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code and had been posted within the context of the article with the title “[S.] Brothers take action against forum users”, published on the applicant company’s portal (see paragraph 13 above). The plaintiffs were thus entitled under section 18(4) of the E ‑ Commerce Act to demand the disclosure of the user data. Referring to the Supreme Court’s established case-law (see paragraph 39 below), the Court of Appeal noted that any distinction between a statement of facts, a value judgment and a potentially “excessive” value judgment ( Tatsachenbehauptung, Werturteil und Wertungsexzess ) had to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider. In respect of the instant case, it held that the applicant company could not rely on the protection of the right to editorial confidentiality because it had not been possible to establish whether the user comments at issue had been subjected to a manual review before publication. Thus, there was no connection between the applicant company’s journalistic activities and the users’ comments. Section 31(1) of the Media Act (see paragraph 35 below) required at least some kind of action/review/taking account ( Tätigkeit/Kontrolle/Kenntnisnahme ) by an employee of a media company. The applicant company appealed.", "26. On 19 February 2015 the Supreme Court ( Oberster Gerichtshof ) upheld the Court of Appeal’s judgment (see paragraph 25 above). It held that information received by persons covered by section 31(1) of the Media Act was protected by editorial confidentiality under that provision only if it had been disclosed to those persons in the course of their carrying out their journalistic activities. It considered that merely screening for keywords with the aid of software was not sufficient to establish a connection with journalistic activity; editorial ex post reviews would not lead to a different result, because they only related to comments that had already been published. As regards the obligation to disclose user data under section 18(4) of the E ‑ Commerce Act, the Supreme Court held that according to its established case-law (see paragraph 39 below) it was sufficient that a layperson ( juristischer Laie ) was capable of perceiving that a finding of liability under Article 1330 of the Civil Code (see paragraph 34 below) could not be ruled out. If that were the case, the person concerned would have an overriding interest in the disclosure of the user data. The Supreme Court reiterated the wording of the comments at issue (see paragraphs 14 and 15 above) and found that they could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code (see paragraph 34 below). It went on to conclude that an overriding legal interest had therefore been substantiated, without specifying the considerations on which it had based that conclusion.", "27. According to the Supreme Court, in the absence of any connection with journalistic activity, there had been no unlawful interference with the applicant company’s right to enjoy freedom of the press under Article 10 of the Convention or section 31 of the Media Act.", "28. The Supreme Court’s decision was served on the applicant company’s lawyer on 4 May 2015.", "Proceedings initiated by H.K.", "29. On 26 July 2013 H.K. brought a civil action against the applicant company, seeking to obtain from it user data relating to the reader with the username “try_error” (see paragraph 19 above), and essentially relying on the same arguments as those advanced by K.S. and the FPK (see paragraph 22 above). The applicant company maintained substantially the same arguments as it had in the other set of proceedings (see paragraph 23 above).", "30. On 25 November 2013 the Vienna Inner City District Court ( Bezirksgericht Innere Stadt Wien ) dismissed the action. It stated that section 31 of the Media Act was not applicable. Pursuant to section 18(4) of the E-Commerce Act, it examined both the wording and the context of the comment within a political discussion and held that the limits of acceptable criticism were wider as regards a politician as such than as regards a private individual. In this respect, the court emphasized H.K.’s own provocative behaviour as a politician that could be perceived as polarizing and occasionally aggressive and inflammatory. It concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiff had not demonstrated that an illegal act had taken place. The plaintiff appealed.", "31. On 29 April 2014 the Vienna Regional Civil Court allowed the appeal and ordered the applicant company to disclose the relevant user data within fourteen days and to pay the costs incurred by the plaintiff during proceedings. It relied on essentially the same reasoning as the Vienna Court of Appeal in its judgment of 26 May 2014 relating to the action brought by K.S. and the FPK (see paragraph 25 above). The applicant company appealed.", "32. On 15 December 2014 the Supreme Court upheld that judgment for essentially the same reasons as those set out in its judgment of 19 February 2015 (see paragraphs 26-27 above).", "33. The Supreme Court’s decision was served on the applicant company’s lawyer on 13 February 2015." ]

[ "RELEVANT legal framework and practice", "Domestic LawCivil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811)", "Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811)", "Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811)", "34. Article 1330 of the Civil Code, as in force since 1 January 1916 (published in Imperial Law Gazette no. 69/1916), provides as follows:", "“1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.", "2. The same shall apply if anyone disseminates allegations that jeopardise a person’s reputation, income or livelihood, the falsity ( Unwahrheit ) of which was known or should have been known to him or her. [Such a person] also has a right to request a retraction and the publication thereof ...”", "Media Act ( Mediengesetz, published in Federal Law Gazette no. 314/1981)", "35. Section 31(1) and (2) of the Media Act, as amended, in force since 1 January 2008 (published in Federal Law Gazette no. 112/2007), state as follows:", "“(1) Media owners, editors, copy editors and employees of a media company or media service have the right to refuse, as witnesses in criminal proceedings or other proceedings before a court or an administrative authority, to answer questions relating to the identity of the author, sender or source of articles and documentation, or to any information that they have obtained in connection with their profession.", "(2) The right stipulated in paragraph (1) must not be bypassed – in particular by ordering the person enjoying this right to disclose: documents; printed matter; image, sound or data carriers; illustrations; or other representations of such contents, or by confiscating them.”", "E-Commerce Act ( E-Commerce Gesetz, published in Federal Law Gazette no. 152/2001)", "36. Section 16(1) of the E-Commerce Act reads as follows:", "“(1) A service provider who stores information provided by a user is not liable for the information stored at the request of that user, on condition that:", "1. the provider does not have actual knowledge of any illegal activity or [illegal] information and, as regards claims for damages, is not aware of facts or circumstances from which any illegal activity or information is apparent; or", "2. the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to [such] information.”", "37. Section 18(4) of the E-Commerce Act provides as follows:", "“(4) Service providers mentioned in section 16 must transmit the name and address of a user of their service, with whom they have concluded agreements concerning the storage of information, to third parties at the request [of those third parties] if they demonstrate ( glaubhaft machen ) an overriding legal interest in determining the identity of [that] user and [establishing the existence of] a particular illegal situation, and furthermore demonstrate that knowledge of such information constitutes a material prerequisite for legal prosecution.”", "Enforcement Act ( Exekutionsordnung, published in Federal Law Gazette no. 79/1896, as amended in Federal Law Gazette no. 86/2021)", "38. Section 354 of the Enforcement Act reads as follows:", "“(1) A claim to an act ( Anspruch auf eine Handlung ) which cannot be performed by a third party and the performance of which depends exclusively on the will of the obligor shall be enforced by the execution court upon application by way of fines or by imprisonment for a maximum total period of up to six months.", "(2) Execution shall begin by notice being served that a penalty will be imposed in the event of default; initially, only notice of a potential fine may be served. [Should] the time-limit ... for the performance of the act [in question] expire, the threatened coercive measure shall be enforced at the request of the enforcing creditor and, at the same time, notice of increasingly severe coercive measures shall be served, with the setting of a new time-limit in respect of the performance [of the act in question]. Enforcement of the latter shall only take place at the request of the enforcing creditor”.", "Domestic Practice", "39. Regarding service providers’ duty under section 18(4) of the E ‑ Commerce Act (see paragraph 37 above) to disclose user data, the Supreme Court has established in its case-law that for a plaintiff to demonstrate an overriding legal interest it is sufficient that it is not possible to rule out the possibility of a finding of liability under Article 1330 of the Civil Code (see paragraph 34 above) on the basis of the contested allegations. Any distinction between a statement of facts and a potentially excessive value judgment has to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider (see Supreme Court judgments of 23 January 2014, 6 Ob 133/13 x; of 30 January 2017, 6 Ob 188/16 i; and, more recently, of 27 November 2019, 6 Ob 156/19 p).", "RELEVANT International INSTRUMENTS", "40. Relevant material concerning freedom of communication on the Internet and its limits referenced in the instruments of the Council of Europe, the United Nations (UN) and the European Union is outlined in paragraphs 44-57 of the judgment in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015). The quoted material contains, inter alia, the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe on 28 May 2003 (ibid., § 44) which identifies the principle of anonymity in the field of communication on the Internet and states as follows:", "“Principle 7: Anonymity", "In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police.\"", "41. The relevant material quoted in Delfi AS v. Estonia further contains the Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on the new notion of media which underlines the importance of the role of intermediaries (ibid., § 46), the report of the UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression dated 22 May 2015 (A/HRC/29/32) which states that no State should use or force intermediaries to undertake censorship on its behalf (ibid., § 48) and relevant parts of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) on the liability of intermediaries (ibid., § 50).", "42. In addition, the Directive on electronic commerce provides as follows:", "“(9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.", "...", "(14) ... the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability of intermediaries; this Directive cannot prevent the anonymous use of open networks such as the Internet.", "...", "(41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based.", "...", "(52) The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means.”", "43. The Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users, adopted on 16 April 2014, stated the following:", "“Freedom of expression and information", "You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:", "1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. ...", "2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight.", "...", "6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.”", "44. The European Parliament resolution of 21 May 2013 on the EU Charter: standard settings for media freedom across the EU (2011/2246/INI)) stresses the following:", "“28. ... that the fundamental right to freedom of expression and freedom of the media is not only reserved for traditional media, but also covers social media and other forms of new media; underlines the importance of ensuring freedom of expression and information on the internet, notably through guaranteeing net neutrality, and consequently calls on the EU and the Member States to ensure that these rights and freedoms are fully respected on the internet in relation to the unrestricted access to and provision and circulation of information;", "...”", "45. The Council of Europe’s Appendix to Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of Internet intermediaries (adopted on 7 March 2018) reads as follows, in so far as relevant:", "“2.4. Use of personal data", "2.4.1. Intermediaries should not disclose personal data to a third party unless required by law or requested to do so by a judicial authority or other independent administrative authority whose decisions are subject to judicial review that has determined that the disclosure is consistent with applicable laws and standards, necessary in a democratic society and proportionate to the legitimate aim pursued.", "...”", "46. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 22 May 2015 to the Human Rights Council (A/HRC/29/32):", "“60. States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. ... States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms). Court-ordered decryption, subject to domestic and international law, may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals ... and subject to judicial warrant and the protection of due process rights of individuals.”", "47. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 11 May 2016 to the Human Rights Council (A/HRC/32/38):", "“85. States bear a primary responsibility to protect and respect the right to exercise freedom of opinion and expression. In the information and communication technology context, this means that States must not require or otherwise pressure the private sector to take steps that unnecessarily or disproportionately interfere with freedom of expression, whether through laws, policies, or extra-legal means. Any demands, requests and other measures to take down digital content or access customer information must be based on validly enacted law, subject to external and independent oversight, and demonstrate a necessary and proportionate means of achieving one or more aims under article 19 (3) of the International Covenant on Civil and Political Rights. ...”", "48. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 30 March 2017 to the Human Rights Council (A/HRC/35/22):", "“78. It is also critical for the Council and States to draw the connections between privacy interference and freedom of expression. ... But certain interferences – such as overbroad requests for user data and third-party retention of such data – can have both near- and long-term deterrent effects on expression, and should be avoided as a matter of law and policy. At a minimum, States should ensure that surveillance is authorized by an independent, impartial and competent judicial authority certifying that the request is necessary and proportionate to protect a legitimate aim.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "49. The applicant company complained that being ordered to disclose the data of users who had posted comments on its Internet news portal had infringed its freedom of expression, as provided by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "50. The Government argued that the application should be rejected for being manifestly ill-founded, pursuant to Article 35 § 3 (a) and § 4 of the Convention.", "51. The applicant company submitted that the application was admissible.", "52. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that the Government’s objection must be dismissed. It also notes that the application is not inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant company", "53. The applicant company argued that the user data in question constituted journalistic sources. They were thus protected by editorial confidentiality in the same way as were data of authors of readers’ letters published in a newspaper. It furthermore complained about the domestic courts characterising the user comments as possibly defamatory under Article 1330 of the Civil Code (see paragraph 34 above), arguing that, on the contrary, they in fact constituted permissible value judgments.", "54. Authors of postings in online discussion forums, just as authors of readers’ letters, had to be able to rely on their protection by media owners, as ensured by editorial confidentiality. Otherwise, they could be deterred from assisting the press in informing the public about matters of general interest. At the very least, users would adjust their behaviour by limiting their exercise of the right to open discussion in a way that would be at odds with the kind of free culture of discussion protected by Article 10. The applicant company’s media operations had earned an excellent reputation for offering critical and reflective media coverage. That reputation would without a doubt be negatively affected by an absence of statements on its platform caused by a “chilling effect”.", "55. Owing to the difficult legal situation, operators of online discussion forums might limit or even shut down those forums for good. Thus, not only the author of the comment, but also the applicant company and the public had a legitimate interest in protecting the identity of people who posted such comments.", "56. The domestic courts had forced the applicant company into the “corset” of a host provider with regard to user comments, without taking into consideration its obligation as a media company to exercise due diligence when disclosing sensitive data. The Supreme Court’s view notwithstanding, the forum operated by the applicant company had been developed through significant investment and deployment of personnel, and had to be considered as one where some kind of action or review would be undertaken by specially trained employees (see paragraph 25 above), and where the right to editorial confidentiality was therefore legitimate.", "57. Lastly, the Supreme Court had not considered the particular circumstances of users’ comments, such as whether the person affected by the posting in question was a public figure or whether a comment had been posted in the course of a political discussion. It had not carried out an appropriate balancing test as required by the Court’s case-law.", "(b) The Government", "58. The Government stated that in the absence of a sufficient connection between the publication of the comments and the applicant company’s journalistic activities, the applicant company could not in the present case invoke its right to editorial confidentiality. The fact that a host provider filtered comments through a software program on the basis of keywords and subsequently manually reviewed those comments did not mean that the host provider’s activities were journalistic in nature, and nor did the fact that a review was conducted after the publication of such comments. The applicant company’s role as a host provider offering a discussion forum on its website differed from its role as a publisher of articles. As a publisher, the applicant company had to take full responsibility for its articles. As a host provider, on the other hand, it enjoyed the exemption from liability enshrined in section 16 of the E-Commerce Act (see paragraph 36 above). To counterbalance that privilege, the applicant company, as a host provider, had a duty to disclose certain data to persons who made credible an overriding legal interest. The aim of that duty was to enable persons whose rights had been violated (as a result of unlawful activity or information originating from a user unknown to them) to prosecute the offender. The applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources.", "59. Moreover, the Supreme Court’s decision had not restricted the applicant company’s right to receive and impart information. The Supreme Court had not required the applicant company to delete the comments nor to pay compensation, and nor had it taken a final decision on the lawfulness of those comments.", "60. Even assuming that there had been an interference with the applicant company’s rights under Article 10, that interference had been provided for by law and had been proportionate. The legal framework applied by the Supreme Court had struck a fair balance between opposing points of view and interests in respect of the question of fundamental rights and had fallen within the wide margin of appreciation afforded by the Court in this field. As a positive obligation under Article 8 of the Convention, the State had to provide instruments enabling an individual to effectively combat defamation and personal violations by other private persons.", "61. Experience had shown that users’ anonymity on the Internet was often abused to defame individuals or to disseminate hatred. Such behaviour did not contribute to a meaningful public debate. It was rather a hindrance to it. Users’ anonymity contributed considerably to an “online disinhibition effect” which could deter other users who valued respectful communication. It had to be ensured that the legitimate interest in anonymity did not eventually reduce the pluralism of opinions and thus restrict freedom of expression.", "The third-party intervener", "62. The Media Legal Defence Initiative (a non-governmental organisation based in the United Kingdom that provides legal support to journalists, bloggers and independent media) submitted that anonymity was of crucial importance to the right to freedom of expression online as people’s willingness to engage in debate on controversial subjects in the public sphere had always been linked to the possibility of doing so anonymously. The disclosure of journalistic sources and surveillance could have negative consequences for the right to freedom of expression, given a breach of the right to confidentiality of an individual in respect of his or her communications. The same applied to cases concerning the disclosure of anonymous user data.", "The Court’s assessment", "(a) Existence of an interference", "63. The Government disputed that the applicant company’s right to enjoy freedom of the press, as guaranteed under Article 10 of the Convention, had been interfered with by the domestic courts’ decisions (see paragraphs 58–59 above). The Court will first examine whether there was in fact such an interference – either in the light of the need to protect journalistic sources or on other grounds.", "(i) General principles", "64. The fundamental principles concerning freedom of expression and the protection of journalistic sources are well-established in the Court’s case-law (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 50 and 51, 14 September 2010; and Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II).", "65. Regarding journalistic sources, the Court’s understanding of the concept of a journalistic “source” is “any person who provides information to a journalist”; it understands the term “information identifying a source” to include, in so far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 86, 22 November 2012, and the cases cited therein).", "66. In the case of Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland ((dec.) no. 68995/13, § 71, 12 November 2019) the Court has provided an overview of its case-law regarding situations that are considered to constitute an interference with the right to freedom of expression under Article 10 of the Convention. Among other factors, a conviction or an order to pay damages in a situation that can have a limiting impact on the enjoyment of freedom of expression is seen to constitute an interference (ibid.). In Nordisk Film & TV A/S v. Denmark ((dec.), no. 40485/02, ECHR 2005 ‑ XIII) the Court held that the decision of the Danish Supreme Court to compel the applicant company to hand over unedited footage which could not be regarded as sources of journalistic information nevertheless constituted an interference within the meaning of Article 10 § 1 of the Convention. It found however that the degree of protection under Article 10 to be applied in that situation could not reach the same level as that afforded to journalists when it came to their right to keep their sources confidential.", "67. The Court has previously ruled on cases concerning the liability of providers of online debate forums on which users had posted comments. In none of those cases was the interference with the rights of the provider under Article 10 called into question (see Delfi AS v. Estonia [GC], no. 64569/09, § 118, ECHR 2015; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 45, 2 February 2016). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 61), the Court explicitly stated that the second applicant in that case, as a large news portal, provided a forum for the exercise of freedom of expression, thus enabling the public to impart information and ideas. Accordingly, the Court concluded that the second applicant’s conduct had to be assessed in the light of the principles applicable to the press.", "(ii) Application of the above principles to the present case", "68. The Court notes at the outset that the instant case does not concern the liability as such of the applicant company but its duty as a host provider to disclose user data in certain circumstances, under section 18 of the E ‑ Commerce Act (see paragraph 37 above), despite its role as an editor of journalistic work. In this role, it runs a news portal which carries discussion forums and allows users to post comments relating to articles published by the applicant company (see paragraph 5 above). It thus uses these forums to participate in the dissemination of ideas with regard to topics of public interest (see paragraphs 73 and 78 below). The comments at issue in the instant case referred to two articles published by the applicant company (see paragraphs 13 and 18 above).", "69. In this regard, during the domestic proceedings the applicant company relied on the argument that the authors of the comments in question constituted journalistic sources and that their identities were therefore protected. The domestic courts, on the other hand, concluded that owing to the fact that no kind of journalistic activity was involved, the applicant company could not invoke editorial confidentiality with respect to the user comments. In the Government’s view, the applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources (see paragraph 58 above). According to the Government, there had in any event been no interference with the right to receive and impart information, as the applicant company had not been held liable, and nor had it been obliged to delete any content (see paragraph 59 above).", "70. The Court’s understanding of a journalistic “source” (see paragraph 65 above) is in line with the Recommendation on the right of journalists not to disclose their sources of information (which was adopted by the Committee of Ministers of the Council of Europe) and the definitions given in the Appendix thereto (cited in Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 44, 14 September 2010). According to the definitions set out in this Appendix, the term “information” means any statement of fact, opinion or idea in the form of text, sound and/or picture (ibid.).", "71. In the instant case, the Court concludes that the comments posted on the forum by readers of the news portal, while constituting opinions and therefore information in the sense of the Recommendation, were clearly addressed to the public rather than to a journalist. This is sufficient for the Court to conclude that the comments’ authors could not be considered a source to a journalist. The Court therefore agrees with the Government that the applicant company could not rely on editorial confidentiality in the instant case. However, an interference with Article 10 may also occur in ways other than by ordering the disclosure of a journalistic source (see paragraph 66 above).", "72. In the cases of Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt it was undisputed that the liability of providers of online debate forums interfered with their rights under Article 10 (see paragraph 67 above). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 25), the Hungarian Constitutional Court had applied the principles of freedom of the press to the applicants. The Court shared this view (see paragraph 67 above). The Court does not overlook the fact that in the case of Delfi AS it accepted the domestic courts’ classification of the applicant as a publisher (ibid., § 128), whereas in the instant case the domestic courts considered, in respect of the comments at issue, the applicant company to be a host provider (see paragraphs 24 and 30 above). However, whether there may be an interference with Article 10 cannot depend on the legal categorisation of a provider by the domestic courts. Rather, the Court finds that it must take into account the circumstances of the case as a whole.", "73. While the Court accepts that the applicant company acted as a host provider with regard to the publication of the comments at issue, this was only one of its roles as a media company. It publishes a daily newspaper (and an online version thereof) and maintains a news portal on which it initiates conversations regarding its articles by inviting users to post comments (see paragraph 5 above). It does not only provide a forum for users but takes an active role in guiding them to write comments, describing those comments as an essential and valuable part of the news portal (see paragraph 7 above). User-generated content on the applicant company’s portal is at least partly moderated (see paragraphs 8-12 above). The Court finds that these activities are closely interlinked. This is supported by the fact that there is no separate editorial office for the portal, which is described as a platform for dialogue as a whole – including both articles and discussions on those articles (see paragraphs 5 and 7 above). It is thus apparent that the applicant company’s overall function is to further open discussion and to disseminate ideas with regard to topics of public interest, as protected by freedom of the press (see paragraph 68 above).", "74. In the light of the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe (see Delfi AS, cited above, § 44), which emphasises the principle of anonymity for Internet users in order to enhance the free expression of opinions, information and ideas (see also the UN Special Rapporteur’s report cited above in paragraph 46), the Court has no doubt that an obligation to disclose the data of authors of online comments could deter them from contributing to debate and therefore lead to a chilling effect among users posting in forums in general. This affects, indirectly, also the applicant company’s right as a media company to freedom of press. It invites users to comment on its articles in order to further discussion on its journalistic work (see paragraphs 5 and 65 above). To achieve this goal, it allows authors of comments to use usernames (see paragraph 7 above); upon registration, users are informed that their data will not be seen publicly and will only be disclosed if required by law (see paragraphs 6 and 7 above). The forums’ rules dictate that certain content is not accepted, and that comments are screened by a keyword system, may be subject to a manual review and will be deleted if they are not in line with the rules (see paragraphs 7-12 above).", "75. The Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of such information once disclosed, which may considerably aggravate the effects of unlawful speech compared to traditional media (see Delfi, cited above, § 147). It therefore agrees with the Government (see paragraph 61 above) that the Convention does not provide for an absolute right to anonymity on the Internet.", "76. At the same time, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of opinions, ideas and information in an important manner, including, notably, on the Internet (see Delfi, cited above, § 147). Thus, it can indirectly also serve the interests of a media company (see paragraph 74 above).", "77. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification. A service provider may also allow an extensive degree of anonymity for its users, in which case users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators (see Delfi, cited above, § 148).", "78. In the instant case, the applicant company, as a media company, awards its users a certain degree of anonymity not only in order to protect its freedom of the press but also to protect users’ private sphere and freedom of expression – rights all protected by Articles 8 and 10 of the Convention (see paragraphs 68 and 73 above). The Court observes that this anonymity would not be effective if the applicant company could not defend it by its own means. It would be difficult for users to defend their anonymity themselves should their identities have been disclosed to the civil courts.", "79. The Government’s argument that no final decision on the lawfulness of the comments has been taken (see paragraph 59 in fine above) does not change the evaluation, as the interference lies in the lifting of anonymity and the effects thereof, irrespective of the outcome of any subsequent proceedings. Such an interference with the media company’s rights will weigh less heavily than the interference in a case in which the media company is held liable for the content of a particular comment by being fined or obliged to delete it. The weight of a given interference is however a matter to be examined in a proportionality test when balancing the interests at stake (see paragraphs 92-95 below).", "80. The Court therefore finds that the domestic courts’ orders in the two sets of proceedings to disclose the requested user data constituted an interference with the applicant company’s right to enjoy freedom of the press under Article 10 § 1 of the Convention. Such interference will be incompatible with Article 10 § 2 of the Convention unless it is “prescribed by law”, pursues one or more legitimate aims and is “necessary in a democratic society” in order to achieve the aim concerned.", "(b) Lawfulness and legitimate aim", "81. It was not disputed between the parties that the interference was prescribed by law (namely, by section 18(4) of the E-Commerce Act – see paragraph 37 above), nor that it served a legitimate aim (namely, the protection of the reputation and rights of others).", "(c) Necessary in a democratic society", "82. It remains to be determined whether the impugned interference was “necessary in a democratic society”.", "(i) General principles", "83. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts) and the cases cited therein).", "84. The relevant principles concerning the balancing of interests when examining an interference with freedom of expression have been summarised as follows (see Delfi AS, cited above, §§ 138 and 139):", "“138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other he right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG [ v. Germany [GC], no. 39954/08,] § 84[, 7 February 2012]).", "139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).”", "85. The Court has identified a number of relevant criteria that must guide its assessment when balancing Article 8 and Article 10, of which particularly pertinent to the present case are: whether a contribution is made to a debate of public interest; the subject of the report in question; the prior conduct of the person concerned and how well he or she is known; the content, form and consequences of the publication in question; and the gravity of the penalty imposed on the journalists or publishers (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109 to 113, ECHR 2012; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90 to 95, 7 February 2012).", "86. In this regard, the Court reiterates, that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 96).", "87. As to the limits of acceptable criticism, the Court has repeatedly held that freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. The limits of acceptable criticism are accordingly wider in respect of a politician than in respect of a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, §§ 58-59, Series A no. 204; Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 121).", "88. Moreover, the Court has clearly stated that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10, by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Delfi AS, cited above, § 136 and the cases cited therein).", "(ii) Application of those principles to the present case", "89. The instant case concerns the applicant company’s duty as a host provider to disclose personal data of its users, not its own civil (or criminal) liability for the users’ comments (see paragraph 68 above; compare and contrast Delfi, cited above, § 128). Moreover, the comments made about the plaintiffs (see paragraphs 14, 15 and 19 above) although offensive and lacking in respect, did not amount to hate speech or incitement to violence (see the case-law quoted in paragraph 88 above), nor were they otherwise clearly unlawful (compare and contrast Delfi, cited above, § 128).", "90. The comments in question concerned two politicians and a political party, respectively, and were expressed in the context of a public debate on issues of legitimate public interest, namely the conduct of those politicians acting in their public capacities and their own comments published on the same news portal (see paragraphs 13 and 18 above).", "91. Although anonymity on the Internet is an important value (see paragraphs 76-78 above), the Court is aware that it must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008).", "92. The importance of a sufficient balancing of interests arises from this awareness, in particular if political speech and debates of public interest are concerned. This issue is not only reflected in the Court’s longstanding case-law (see paragraphs 86-87 above), but also in the above mentioned international-law material concerning Internet intermediaries: the relevant documents of the Council of Europe and the United Nations Human Rights Council state that requests for the disclosure of user data must be necessary and proportionate to the legitimate aim pursued (see paragraphs 45-48 above). As the Government has pointed out (see paragraph 60 above), a potential victim of a defamatory statement must be awarded effective access to a court in order to assert his or her claims before that court. In the Court’s view this means that the domestic courts will have to examine the alleged claim and weigh – in accordance with their positive obligations under Articles 8 and 10 of the Convention – the conflicting interests at stake, before deciding whether the data relating to the author’s identity are to be disclosed. In the instant case, those conflicting interests do not only comprise the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press, but also its role in protecting the personal data of the comment’s authors and the freedom to express their opinions publicly (see paragraph 78 above).", "93. The Court agrees with the appeal courts that the comments in questions could be understood as seriously offensive. However, while the first-instance courts in both sets of proceedings did conduct a balancing test (see paragraphs 24 and 30 above), the appeal courts and the Supreme Court did not give any reasons why the plaintiffs’ interests in the disclosure of the data were “overriding” the applicant company’s interests in protecting their authors’ anonymity. This is of particular concern in a case like the present one where the comments could be characterised as political speech that could not be considered as being clearly illegal. Referring to the Supreme Court’s case-law they only argued that the balancing of interests was not a matter to be examined in proceedings against the relevant service provider, but rather should be carried out during proceedings against the author of the allegedly defamatory comments. According to the appeal courts and the Supreme Court, it was sufficient that “a layperson was capable of perceiving that a finding of liability under Article 1330 of the Civil Code could not be ruled out”. If that was the case, the person concerned would have an overriding interest in the disclosure of the user data (see paragraphs 25-26, 27, 31-32 and 39 above). They thus concluded directly from the refusal of editorial confidentiality, the comments’ offensive nature and the requirement that a finding of liability could not be ruled out to the applicant company’s duty to disclose the data.", "94. The Court finds that the Supreme Court’s case-law does not preclude a balancing of interests. In fact, this case-law would have provided for a certain balancing between the opposing interests in respect of fundamental rights when requiring an assessment whether a finding of liability under Article 1330 of the Civil Code could not be ruled out. This applied all the more to the instant case, as it was obvious that the comments at issue were part of a political debate. However, the appeal courts and the Supreme Courts did not base their assessment on any balancing between the interests of the authors of the particular comments and of the applicant company to protect those authors, respectively, on the one side, and the interests of the plaintiffs concerned on the other side.", "95. As stated above (see paragraphs 68 and 89), the Court does not overlook that the instant case did not concern the applicant company’s liability for the comments (by contrast, see Delfi AS, cited above, § 142; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 71). In this regard, the Court accepts that for a balancing exercise in proceedings concerning the disclosure of user data, a prima facie examination may suffice (see paragraph 66 above). In fact, section 18(4) of the E-Commerce Act (see paragraph 37 above) allows for the establishment of prima facie evidence. This was not disputed by the Government (see paragraph 58 above). Furthermore, the courts enjoy a certain margin of appreciation, even if it is narrow when political speech is concerned (see paragraph 86 above). However, even a prima facie examination requires some reasoning and balancing. In the instant case, the lack of any balancing between the opposing interests (see paragraph 94 above) overlooks the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information, in particular if political speech is concerned which is not hate speech or otherwise clearly unlawful. In view of the fact that no visible weight was given to these aspects, the Court cannot agree with the Government’s submission that the Supreme Court struck a fair balance between opposing interests in respect of the question of fundamental rights (see paragraph 60 above).", "96. The Court finds that in the absence of any balancing of those interests the decisions of the appeal courts and of the Supreme Court were not supported by relevant and sufficient reasons to justify the interference. It follows that the interference was not in fact “necessary in a democratic society”, within the meaning of Article 10 § 2 of the Convention.", "97. There has accordingly been a violation of Article 10 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "98. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "99. The applicant company claimed a total amount of 17,882.38 euros (EUR) in respect of pecuniary damage. This sum is composed of EUR 12,254.80 for the costs of legal representation (including VAT) and court fees, which it had to pay to K.S. and FPK in the first set of proceedings, and EUR 5,627.58 for the costs of legal representation (including VAT) and court fees, which it had to pay to H.K. in the second set of proceedings.", "100. The Government did not contest this claim.", "101. The applicant company also claimed EUR 6,000 in respect of non ‑ pecuniary damage.", "102. The Government contested this claim, arguing that the applicant company had failed to set out the basis of its calculation and that the finding of a violation of a Convention right often constituted in itself sufficient reparation.", "103. The Court reiterates that it cannot speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 of the Convention (see Osinger v. Austria, no. 54645/00, § 57, 24 March 2005 and the references cited therein). The same applies in the instant case in which a procedural violation of Article 10 is found (see paragraph 96 above). Accordingly, the Court dismisses the applicant company’s claim for pecuniary damage. As regards the claim for non ‑ pecuniary damage, the Court finds that given the circumstances of the present case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant company may have sustained (see, for example and mutatis mutandis, Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 44, 25 January 2007).", "Costs and expenses", "104. The applicant company claimed EUR 22,780.96 for the costs and expenses incurred before the domestic courts and EUR 4,894 for those incurred before the Court. These sums include VAT.", "105. The Government considered these claims excessive and disputed the assertion that the procedural steps taken by the applicant company had been effective. The applicant company could not claim more than it would have been awarded had it been successful in the domestic proceedings. As regards the costs of the proceedings before the Court the Government argued that the applicant company had been able to rely in part on the written submissions presented in the domestic proceedings when preparing the submissions to the Court.", "106. According to the Court’s case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, 27 February 2007, and the cases cited therein). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 for costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant company.", "Default interest", "107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant company, a limited liability company registered in Vienna, was represented by Ms M. Windhager, a lawyer practising in Vienna.", "3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The Background TO the case", "5. The applicant is a limited liability company based in Vienna. It owns and publishes a daily newspaper published in print format ( Der Standard ), in digital format (as an “e-paper”) and in an online version ( derStandard.at ). The applicant company describes its work as being of a multi-media nature, and its editorial office ( Redaktion ) does not distinguish between the print and the digital medium. The online news portal run by the applicant company under derStandard.at (hereinafter “the portal”) carries articles assigned to it by the editorial office and discussion forums relating to those articles. At the end of each article, the applicant company invites registered users to post comments with a banner stating “Your opinion counts” and a field entitled “Your comment ...” that allows them to insert text.", "6. In the course of the registration process (during which new users have to accept the applicant company’s general terms and conditions, see paragraph 7 below), each user is required to submit his or her name, surname and email address to the applicant company; moreover, he or she may, optionally, submit a postal address. Users are informed that their data will not be seen publicly.", "7. The applicant company’s general terms and conditions state that its forums’ rules (the latest version of which can be found on the portal) must be complied with. Under the heading “Community guidelines” the applicant company reminds users that their comments are an essential and valuable part of the portal. It emphasises that the forums’ rules are to be respected and are taken into consideration during moderation, as the quality of discussions is of great concern to it. The portal is described as providing a platform for lively, interesting and inviting dialogue. Under a subheading entitled “quality features [ Qualitätsmerkmale ] of postings” the applicant company provides guidelines on how to write a comment. Under a subheading “forums’ rules” it reminds users that they are responsible for their own comments and that they may be held liable for them; moreover, it is indicated that the applicant company will only disclose user data if required to do so by law. Inter alia, personal attacks in the form of insults, threats or abuse, as well as defamatory statements or statements damaging to businesses, are not accepted. The applicant company reserves the right to delete posts that do not comply with the community guidelines. Offensive, discriminatory or hateful usernames are not tolerated.", "8. Under a subheading “procedure for moderation” the applicant company informs its users that it has installed an automated keyword ‑ screening system. All user comments are screened for problematic content by this system before they are published on the portal. In the event that the system flags a problematic comment, the publication of that comment becomes subject to a manual ex ante review.", "9. The automated screening system also takes other factors into account – in particular, the number of previous “hits” in respect of comments posted by the same user, or whether the comment was made by someone who has recently registered with the portal. Furthermore, all comments on material relating to particularly sensitive issues may have to undergo a manual review before publication. Discussion forums may be closed, if deemed necessary.", "10. After publication, user comments are subject to an editorial review by the applicant company on a regular basis.", "11. Moreover, the applicant company has implemented a “notice and take down” system by which other users can trigger a manual editorial review of published user comments by means of a “report” button.", "12. According to the applicant company, its moderators review up to 6,000 user comments per day and requests for deletion are granted liberally. User data are disclosed, upon request and in accordance with the law, to third parties if it is sufficiently clear that the comment in question may have violated a person’s rights.", "comments published on the portalComments concerning K.S. and the FPK", "Comments concerning K.S. and the FPK", "Comments concerning K.S. and the FPK", "13. On 19 March 2012 an article under the heading “[S.] Brothers take action against forum users” ( Gebrüder [S.] gehen gegen Foren-User vor ) was published on the portal. The article related, inter alia, to K.S., who was at that time a leader of Die Freiheitlichen in Kärnten (FPK), a right-wing regional political party that at the time of the events was represented in the Kärnten Regional Parliament and in the Regional Government in coalition with two other parties. The article quoted a remark made by K.S. describing people who attacked him in forums as “down-at-heel guys who sound off” ( Schmuddeltypen, die sich hier ausrotzen ). The article attracted more than 1,600 user comments.", "14. On 22 March 2012 a reader with the username “Tango Korrupti2013” posted the following comment relating to that article:", "“Corrupt politician-assholes forget, [but] we don’t ELECTION DAY IS PAYDAY!!!!!” ( Korrupte Polit-Arschlöcher vergessen, wir nicht WAHLTAG IST ZAHLTAG!!!!! )", "15. On 23 March 2012 a reader with the username “rrrn” posted the following comment:", "“[It was] to be expected that FPOe/K, ... ...-opponents would get carried away. [That would] not have happened if those parties had been banned for their ongoing Nazi revival.”", "(War zu erwarten, dass FPOe/K, ... -Gegner ueber die Straenge schlagen. Waere nicht passiert, wenn diese Parteien verboten worden waeren wegen ihrer dauernden Nazi-wiederbelebung.)", "16. On 16 April 2012, K.S. and the FPK requested the applicant company to disclose the name, address and email address (hereinafter “user data”, see paragraph 6 above) of the comments’ authors in order to be able to institute civil and criminal proceedings against them.", "17. On 18 April 2012, the applicant company replied that they had deleted the comments but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings.", "Comments concerning H.K.", "18. On 5 May 2013 an interview with H.K. under the heading “What you call uproar, I call effective advertising” ( Was Sie Aufruhr nennen, nenne ich Werbewirksamkeit ) was published on the portal. H.K. stated, inter alia, that posters and slogans had to generate emotion, because without emotion there could be no success in politics. He was at that time a member of the Austrian national assembly ( Nationalrat ) and the general secretary of the right-wing Austrian Freedom Party ( Freiheitliche Partei Österreichs, FPÖ).", "19. Following the publication of this interview, on the same day a reader with the username “try_error” posted the following comment:", "“[I]f we did not perpetually misunderstand [the meaning of] freedom of expression and if undermining our constitution and destabilising our form of government were consequently to be made punishable – or at least, if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [H.K.] would be one of the greatest criminals in the Second Republic ...”", "( würden wir nicht ewig meinungsfreiheit falsch verstehen und wäre das sägen an der verfassung und das destabilisieren unserer staatsform konsequent unter strafe gestellt, oder wäre wenigstens der mafiaparagraf einmal angewendet worden auf die rechtsextreme szene in österreich, dann wäre [H.K.] einer der größten verbrecher der 2ten republik ... )", "20. On 20 June 2013, H.K. asked the applicant company to delete the comment and to disclose the user data (see paragraphs 6 and 16 above) of the author in order to be able to institute civil and criminal proceedings against him.", "21. On 26 June 2013, the applicant company replied that it had deleted the comment but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings.", "Proceedings against the applicant companyProceedings initiated by K.S. and the FPK", "Proceedings initiated by K.S. and the FPK", "Proceedings initiated by K.S. and the FPK", "22. On 11 June 2012 K.S. and the FPK brought a civil action against the applicant company pursuant to section 18(4) of the E ‑ Commerce Act (see paragraph 37 below). K.S. claimed user data relating to the reader with the username “Tango Korrupti2013” (see paragraph 14 above). The FPK claimed user data relating to the reader with the username “rrrn” (see paragraph 15 above). K.S. and the FPK asserted that the respective posts constituted defamation ( Ehrenbeleidigungen; üble Nachrede ), within the meaning of Article 1330 of the Civil Code (see paragraph 34 below) and within the meaning of Article 111 of the Criminal Code, as well as insulting behaviour ( Beleidigung ) within the meaning of Article 115 of the Criminal Code, and that they needed the user data sought in order for them to be able to lodge claims against those users.", "23. The applicant company maintained that it was not obliged to disclose the user data because the comments at issue were not defamatory, but rather constituted permissible value judgments. It referred to K.S.’s position as a politician, the style that he adopted when making public statements, and the kind of expressions used by other members of the FPK. Moreover, it argued that it was – under section 31(1) of the Media Act (see paragraph 35 below), which regulated the protection of editorial confidentiality ( Redaktionsgeheimnis ) – entitled to refuse to disclose its sources.", "24. On 10 September 2013 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen Wien ) dismissed the action. It held that it could not be established whether the user comments at issue had undergone a manual review before publication. It considered that the applicant company had acted as a host provider and that section 18(4) of the E ‑ Commerce Act (see paragraph 37 below) was thus applicable. It argued that the question of whether a specific comment was covered by the right to freedom of expression was a matter that had to be examined on a case ‑ by ‑ case basis, given that the limits of acceptable criticism were wider for politicians than for private individuals. It went on to examine the content and the context of the postings and stated that they had been made several days after publication of the respective article as two out of more than 1,600 user comments (see paragraph 13 above). The court found that the comment posted by the reader with the username “Tango Korrupti2013” (see paragraph 14 above) did not directly refer to K.S. but was a general statement concerning a public discussion on corruption. It stated that the second comment posted by the reader with the username “rrrn” (see paragraph 15 above) directly referred to the FPK but was based on a sufficient factual basis given that members of the FPK had previously used terms that originated from the diction of National Socialists, such as “the healthy will of the people” ( gesundes Volksempfinden ) and “block warden” ( Blockwart ). The court concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiffs had not demonstrated that illegal acts had taken place. It was thus not necessary to examine the applicant company’s submissions concerning the protection of editorial confidentiality. The plaintiffs appealed.", "25. On 26 May 2014 the Vienna Court of Appeal ( Oberlandesgericht Wien ) allowed the plaintiffs’ appeal and ordered the applicant company to disclose the requested user data within fourteen days and to pay the costs incurred by the plaintiffs during the proceedings. It established that both comments at issue could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code and had been posted within the context of the article with the title “[S.] Brothers take action against forum users”, published on the applicant company’s portal (see paragraph 13 above). The plaintiffs were thus entitled under section 18(4) of the E ‑ Commerce Act to demand the disclosure of the user data. Referring to the Supreme Court’s established case-law (see paragraph 39 below), the Court of Appeal noted that any distinction between a statement of facts, a value judgment and a potentially “excessive” value judgment ( Tatsachenbehauptung, Werturteil und Wertungsexzess ) had to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider. In respect of the instant case, it held that the applicant company could not rely on the protection of the right to editorial confidentiality because it had not been possible to establish whether the user comments at issue had been subjected to a manual review before publication. Thus, there was no connection between the applicant company’s journalistic activities and the users’ comments. Section 31(1) of the Media Act (see paragraph 35 below) required at least some kind of action/review/taking account ( Tätigkeit/Kontrolle/Kenntnisnahme ) by an employee of a media company. The applicant company appealed.", "26. On 19 February 2015 the Supreme Court ( Oberster Gerichtshof ) upheld the Court of Appeal’s judgment (see paragraph 25 above). It held that information received by persons covered by section 31(1) of the Media Act was protected by editorial confidentiality under that provision only if it had been disclosed to those persons in the course of their carrying out their journalistic activities. It considered that merely screening for keywords with the aid of software was not sufficient to establish a connection with journalistic activity; editorial ex post reviews would not lead to a different result, because they only related to comments that had already been published. As regards the obligation to disclose user data under section 18(4) of the E ‑ Commerce Act, the Supreme Court held that according to its established case-law (see paragraph 39 below) it was sufficient that a layperson ( juristischer Laie ) was capable of perceiving that a finding of liability under Article 1330 of the Civil Code (see paragraph 34 below) could not be ruled out. If that were the case, the person concerned would have an overriding interest in the disclosure of the user data. The Supreme Court reiterated the wording of the comments at issue (see paragraphs 14 and 15 above) and found that they could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code (see paragraph 34 below). It went on to conclude that an overriding legal interest had therefore been substantiated, without specifying the considerations on which it had based that conclusion.", "27. According to the Supreme Court, in the absence of any connection with journalistic activity, there had been no unlawful interference with the applicant company’s right to enjoy freedom of the press under Article 10 of the Convention or section 31 of the Media Act.", "28. The Supreme Court’s decision was served on the applicant company’s lawyer on 4 May 2015.", "Proceedings initiated by H.K.", "29. On 26 July 2013 H.K. brought a civil action against the applicant company, seeking to obtain from it user data relating to the reader with the username “try_error” (see paragraph 19 above), and essentially relying on the same arguments as those advanced by K.S. and the FPK (see paragraph 22 above). The applicant company maintained substantially the same arguments as it had in the other set of proceedings (see paragraph 23 above).", "30. On 25 November 2013 the Vienna Inner City District Court ( Bezirksgericht Innere Stadt Wien ) dismissed the action. It stated that section 31 of the Media Act was not applicable. Pursuant to section 18(4) of the E-Commerce Act, it examined both the wording and the context of the comment within a political discussion and held that the limits of acceptable criticism were wider as regards a politician as such than as regards a private individual. In this respect, the court emphasized H.K.’s own provocative behaviour as a politician that could be perceived as polarizing and occasionally aggressive and inflammatory. It concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiff had not demonstrated that an illegal act had taken place. The plaintiff appealed.", "31. On 29 April 2014 the Vienna Regional Civil Court allowed the appeal and ordered the applicant company to disclose the relevant user data within fourteen days and to pay the costs incurred by the plaintiff during proceedings. It relied on essentially the same reasoning as the Vienna Court of Appeal in its judgment of 26 May 2014 relating to the action brought by K.S. and the FPK (see paragraph 25 above). The applicant company appealed.", "32. On 15 December 2014 the Supreme Court upheld that judgment for essentially the same reasons as those set out in its judgment of 19 February 2015 (see paragraphs 26-27 above).", "33. The Supreme Court’s decision was served on the applicant company’s lawyer on 13 February 2015." ]

[ "RELEVANT legal framework and practice", "Domestic LawCivil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811)", "Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811)", "Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811)", "34. Article 1330 of the Civil Code, as in force since 1 January 1916 (published in Imperial Law Gazette no. 69/1916), provides as follows:", "“1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.", "2. The same shall apply if anyone disseminates allegations that jeopardise a person’s reputation, income or livelihood, the falsity ( Unwahrheit ) of which was known or should have been known to him or her. [Such a person] also has a right to request a retraction and the publication thereof ...”", "Media Act ( Mediengesetz, published in Federal Law Gazette no. 314/1981)", "35. Section 31(1) and (2) of the Media Act, as amended, in force since 1 January 2008 (published in Federal Law Gazette no. 112/2007), state as follows:", "“(1) Media owners, editors, copy editors and employees of a media company or media service have the right to refuse, as witnesses in criminal proceedings or other proceedings before a court or an administrative authority, to answer questions relating to the identity of the author, sender or source of articles and documentation, or to any information that they have obtained in connection with their profession.", "(2) The right stipulated in paragraph (1) must not be bypassed – in particular by ordering the person enjoying this right to disclose: documents; printed matter; image, sound or data carriers; illustrations; or other representations of such contents, or by confiscating them.”", "E-Commerce Act ( E-Commerce Gesetz, published in Federal Law Gazette no. 152/2001)", "36. Section 16(1) of the E-Commerce Act reads as follows:", "“(1) A service provider who stores information provided by a user is not liable for the information stored at the request of that user, on condition that:", "1. the provider does not have actual knowledge of any illegal activity or [illegal] information and, as regards claims for damages, is not aware of facts or circumstances from which any illegal activity or information is apparent; or", "2. the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to [such] information.”", "37. Section 18(4) of the E-Commerce Act provides as follows:", "“(4) Service providers mentioned in section 16 must transmit the name and address of a user of their service, with whom they have concluded agreements concerning the storage of information, to third parties at the request [of those third parties] if they demonstrate ( glaubhaft machen ) an overriding legal interest in determining the identity of [that] user and [establishing the existence of] a particular illegal situation, and furthermore demonstrate that knowledge of such information constitutes a material prerequisite for legal prosecution.”", "Enforcement Act ( Exekutionsordnung, published in Federal Law Gazette no. 79/1896, as amended in Federal Law Gazette no. 86/2021)", "38. Section 354 of the Enforcement Act reads as follows:", "“(1) A claim to an act ( Anspruch auf eine Handlung ) which cannot be performed by a third party and the performance of which depends exclusively on the will of the obligor shall be enforced by the execution court upon application by way of fines or by imprisonment for a maximum total period of up to six months.", "(2) Execution shall begin by notice being served that a penalty will be imposed in the event of default; initially, only notice of a potential fine may be served. [Should] the time-limit ... for the performance of the act [in question] expire, the threatened coercive measure shall be enforced at the request of the enforcing creditor and, at the same time, notice of increasingly severe coercive measures shall be served, with the setting of a new time-limit in respect of the performance [of the act in question]. Enforcement of the latter shall only take place at the request of the enforcing creditor”.", "Domestic Practice", "39. Regarding service providers’ duty under section 18(4) of the E ‑ Commerce Act (see paragraph 37 above) to disclose user data, the Supreme Court has established in its case-law that for a plaintiff to demonstrate an overriding legal interest it is sufficient that it is not possible to rule out the possibility of a finding of liability under Article 1330 of the Civil Code (see paragraph 34 above) on the basis of the contested allegations. Any distinction between a statement of facts and a potentially excessive value judgment has to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider (see Supreme Court judgments of 23 January 2014, 6 Ob 133/13 x; of 30 January 2017, 6 Ob 188/16 i; and, more recently, of 27 November 2019, 6 Ob 156/19 p).", "RELEVANT International INSTRUMENTS", "40. Relevant material concerning freedom of communication on the Internet and its limits referenced in the instruments of the Council of Europe, the United Nations (UN) and the European Union is outlined in paragraphs 44-57 of the judgment in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015). The quoted material contains, inter alia, the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe on 28 May 2003 (ibid., § 44) which identifies the principle of anonymity in the field of communication on the Internet and states as follows:", "“Principle 7: Anonymity", "In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police.\"", "41. The relevant material quoted in Delfi AS v. Estonia further contains the Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on the new notion of media which underlines the importance of the role of intermediaries (ibid., § 46), the report of the UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression dated 22 May 2015 (A/HRC/29/32) which states that no State should use or force intermediaries to undertake censorship on its behalf (ibid., § 48) and relevant parts of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) on the liability of intermediaries (ibid., § 50).", "42. In addition, the Directive on electronic commerce provides as follows:", "“(9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.", "...", "(14) ... the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability of intermediaries; this Directive cannot prevent the anonymous use of open networks such as the Internet.", "...", "(41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based.", "...", "(52) The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means.”", "43. The Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users, adopted on 16 April 2014, stated the following:", "“Freedom of expression and information", "You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:", "1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. ...", "2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight.", "...", "6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.”", "44. The European Parliament resolution of 21 May 2013 on the EU Charter: standard settings for media freedom across the EU (2011/2246/INI)) stresses the following:", "“28. ... that the fundamental right to freedom of expression and freedom of the media is not only reserved for traditional media, but also covers social media and other forms of new media; underlines the importance of ensuring freedom of expression and information on the internet, notably through guaranteeing net neutrality, and consequently calls on the EU and the Member States to ensure that these rights and freedoms are fully respected on the internet in relation to the unrestricted access to and provision and circulation of information;", "...”", "45. The Council of Europe’s Appendix to Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of Internet intermediaries (adopted on 7 March 2018) reads as follows, in so far as relevant:", "“2.4. Use of personal data", "2.4.1. Intermediaries should not disclose personal data to a third party unless required by law or requested to do so by a judicial authority or other independent administrative authority whose decisions are subject to judicial review that has determined that the disclosure is consistent with applicable laws and standards, necessary in a democratic society and proportionate to the legitimate aim pursued.", "...”", "46. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 22 May 2015 to the Human Rights Council (A/HRC/29/32):", "“60. States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. ... States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms). Court-ordered decryption, subject to domestic and international law, may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals ... and subject to judicial warrant and the protection of due process rights of individuals.”", "47. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 11 May 2016 to the Human Rights Council (A/HRC/32/38):", "“85. States bear a primary responsibility to protect and respect the right to exercise freedom of opinion and expression. In the information and communication technology context, this means that States must not require or otherwise pressure the private sector to take steps that unnecessarily or disproportionately interfere with freedom of expression, whether through laws, policies, or extra-legal means. Any demands, requests and other measures to take down digital content or access customer information must be based on validly enacted law, subject to external and independent oversight, and demonstrate a necessary and proportionate means of achieving one or more aims under article 19 (3) of the International Covenant on Civil and Political Rights. ...”", "48. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 30 March 2017 to the Human Rights Council (A/HRC/35/22):", "“78. It is also critical for the Council and States to draw the connections between privacy interference and freedom of expression. ... But certain interferences – such as overbroad requests for user data and third-party retention of such data – can have both near- and long-term deterrent effects on expression, and should be avoided as a matter of law and policy. At a minimum, States should ensure that surveillance is authorized by an independent, impartial and competent judicial authority certifying that the request is necessary and proportionate to protect a legitimate aim.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "49. The applicant company complained that being ordered to disclose the data of users who had posted comments on its Internet news portal had infringed its freedom of expression, as provided by Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "50. The Government argued that the application should be rejected for being manifestly ill-founded, pursuant to Article 35 § 3 (a) and § 4 of the Convention.", "51. The applicant company submitted that the application was admissible.", "52. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that the Government’s objection must be dismissed. It also notes that the application is not inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant company", "53. The applicant company argued that the user data in question constituted journalistic sources. They were thus protected by editorial confidentiality in the same way as were data of authors of readers’ letters published in a newspaper. It furthermore complained about the domestic courts characterising the user comments as possibly defamatory under Article 1330 of the Civil Code (see paragraph 34 above), arguing that, on the contrary, they in fact constituted permissible value judgments.", "54. Authors of postings in online discussion forums, just as authors of readers’ letters, had to be able to rely on their protection by media owners, as ensured by editorial confidentiality. Otherwise, they could be deterred from assisting the press in informing the public about matters of general interest. At the very least, users would adjust their behaviour by limiting their exercise of the right to open discussion in a way that would be at odds with the kind of free culture of discussion protected by Article 10. The applicant company’s media operations had earned an excellent reputation for offering critical and reflective media coverage. That reputation would without a doubt be negatively affected by an absence of statements on its platform caused by a “chilling effect”.", "55. Owing to the difficult legal situation, operators of online discussion forums might limit or even shut down those forums for good. Thus, not only the author of the comment, but also the applicant company and the public had a legitimate interest in protecting the identity of people who posted such comments.", "56. The domestic courts had forced the applicant company into the “corset” of a host provider with regard to user comments, without taking into consideration its obligation as a media company to exercise due diligence when disclosing sensitive data. The Supreme Court’s view notwithstanding, the forum operated by the applicant company had been developed through significant investment and deployment of personnel, and had to be considered as one where some kind of action or review would be undertaken by specially trained employees (see paragraph 25 above), and where the right to editorial confidentiality was therefore legitimate.", "57. Lastly, the Supreme Court had not considered the particular circumstances of users’ comments, such as whether the person affected by the posting in question was a public figure or whether a comment had been posted in the course of a political discussion. It had not carried out an appropriate balancing test as required by the Court’s case-law.", "(b) The Government", "58. The Government stated that in the absence of a sufficient connection between the publication of the comments and the applicant company’s journalistic activities, the applicant company could not in the present case invoke its right to editorial confidentiality. The fact that a host provider filtered comments through a software program on the basis of keywords and subsequently manually reviewed those comments did not mean that the host provider’s activities were journalistic in nature, and nor did the fact that a review was conducted after the publication of such comments. The applicant company’s role as a host provider offering a discussion forum on its website differed from its role as a publisher of articles. As a publisher, the applicant company had to take full responsibility for its articles. As a host provider, on the other hand, it enjoyed the exemption from liability enshrined in section 16 of the E-Commerce Act (see paragraph 36 above). To counterbalance that privilege, the applicant company, as a host provider, had a duty to disclose certain data to persons who made credible an overriding legal interest. The aim of that duty was to enable persons whose rights had been violated (as a result of unlawful activity or information originating from a user unknown to them) to prosecute the offender. The applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources.", "59. Moreover, the Supreme Court’s decision had not restricted the applicant company’s right to receive and impart information. The Supreme Court had not required the applicant company to delete the comments nor to pay compensation, and nor had it taken a final decision on the lawfulness of those comments.", "60. Even assuming that there had been an interference with the applicant company’s rights under Article 10, that interference had been provided for by law and had been proportionate. The legal framework applied by the Supreme Court had struck a fair balance between opposing points of view and interests in respect of the question of fundamental rights and had fallen within the wide margin of appreciation afforded by the Court in this field. As a positive obligation under Article 8 of the Convention, the State had to provide instruments enabling an individual to effectively combat defamation and personal violations by other private persons.", "61. Experience had shown that users’ anonymity on the Internet was often abused to defame individuals or to disseminate hatred. Such behaviour did not contribute to a meaningful public debate. It was rather a hindrance to it. Users’ anonymity contributed considerably to an “online disinhibition effect” which could deter other users who valued respectful communication. It had to be ensured that the legitimate interest in anonymity did not eventually reduce the pluralism of opinions and thus restrict freedom of expression.", "The third-party intervener", "62. The Media Legal Defence Initiative (a non-governmental organisation based in the United Kingdom that provides legal support to journalists, bloggers and independent media) submitted that anonymity was of crucial importance to the right to freedom of expression online as people’s willingness to engage in debate on controversial subjects in the public sphere had always been linked to the possibility of doing so anonymously. The disclosure of journalistic sources and surveillance could have negative consequences for the right to freedom of expression, given a breach of the right to confidentiality of an individual in respect of his or her communications. The same applied to cases concerning the disclosure of anonymous user data.", "The Court’s assessment", "(a) Existence of an interference", "63. The Government disputed that the applicant company’s right to enjoy freedom of the press, as guaranteed under Article 10 of the Convention, had been interfered with by the domestic courts’ decisions (see paragraphs 58–59 above). The Court will first examine whether there was in fact such an interference – either in the light of the need to protect journalistic sources or on other grounds.", "(i) General principles", "64. The fundamental principles concerning freedom of expression and the protection of journalistic sources are well-established in the Court’s case-law (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 50 and 51, 14 September 2010; and Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II).", "65. Regarding journalistic sources, the Court’s understanding of the concept of a journalistic “source” is “any person who provides information to a journalist”; it understands the term “information identifying a source” to include, in so far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 86, 22 November 2012, and the cases cited therein).", "66. In the case of Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland ((dec.) no. 68995/13, § 71, 12 November 2019) the Court has provided an overview of its case-law regarding situations that are considered to constitute an interference with the right to freedom of expression under Article 10 of the Convention. Among other factors, a conviction or an order to pay damages in a situation that can have a limiting impact on the enjoyment of freedom of expression is seen to constitute an interference (ibid.). In Nordisk Film & TV A/S v. Denmark ((dec.), no. 40485/02, ECHR 2005 ‑ XIII) the Court held that the decision of the Danish Supreme Court to compel the applicant company to hand over unedited footage which could not be regarded as sources of journalistic information nevertheless constituted an interference within the meaning of Article 10 § 1 of the Convention. It found however that the degree of protection under Article 10 to be applied in that situation could not reach the same level as that afforded to journalists when it came to their right to keep their sources confidential.", "67. The Court has previously ruled on cases concerning the liability of providers of online debate forums on which users had posted comments. In none of those cases was the interference with the rights of the provider under Article 10 called into question (see Delfi AS v. Estonia [GC], no. 64569/09, § 118, ECHR 2015; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 45, 2 February 2016). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 61), the Court explicitly stated that the second applicant in that case, as a large news portal, provided a forum for the exercise of freedom of expression, thus enabling the public to impart information and ideas. Accordingly, the Court concluded that the second applicant’s conduct had to be assessed in the light of the principles applicable to the press.", "(ii) Application of the above principles to the present case", "68. The Court notes at the outset that the instant case does not concern the liability as such of the applicant company but its duty as a host provider to disclose user data in certain circumstances, under section 18 of the E ‑ Commerce Act (see paragraph 37 above), despite its role as an editor of journalistic work. In this role, it runs a news portal which carries discussion forums and allows users to post comments relating to articles published by the applicant company (see paragraph 5 above). It thus uses these forums to participate in the dissemination of ideas with regard to topics of public interest (see paragraphs 73 and 78 below). The comments at issue in the instant case referred to two articles published by the applicant company (see paragraphs 13 and 18 above).", "69. In this regard, during the domestic proceedings the applicant company relied on the argument that the authors of the comments in question constituted journalistic sources and that their identities were therefore protected. The domestic courts, on the other hand, concluded that owing to the fact that no kind of journalistic activity was involved, the applicant company could not invoke editorial confidentiality with respect to the user comments. In the Government’s view, the applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources (see paragraph 58 above). According to the Government, there had in any event been no interference with the right to receive and impart information, as the applicant company had not been held liable, and nor had it been obliged to delete any content (see paragraph 59 above).", "70. The Court’s understanding of a journalistic “source” (see paragraph 65 above) is in line with the Recommendation on the right of journalists not to disclose their sources of information (which was adopted by the Committee of Ministers of the Council of Europe) and the definitions given in the Appendix thereto (cited in Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 44, 14 September 2010). According to the definitions set out in this Appendix, the term “information” means any statement of fact, opinion or idea in the form of text, sound and/or picture (ibid.).", "71. In the instant case, the Court concludes that the comments posted on the forum by readers of the news portal, while constituting opinions and therefore information in the sense of the Recommendation, were clearly addressed to the public rather than to a journalist. This is sufficient for the Court to conclude that the comments’ authors could not be considered a source to a journalist. The Court therefore agrees with the Government that the applicant company could not rely on editorial confidentiality in the instant case. However, an interference with Article 10 may also occur in ways other than by ordering the disclosure of a journalistic source (see paragraph 66 above).", "72. In the cases of Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt it was undisputed that the liability of providers of online debate forums interfered with their rights under Article 10 (see paragraph 67 above). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 25), the Hungarian Constitutional Court had applied the principles of freedom of the press to the applicants. The Court shared this view (see paragraph 67 above). The Court does not overlook the fact that in the case of Delfi AS it accepted the domestic courts’ classification of the applicant as a publisher (ibid., § 128), whereas in the instant case the domestic courts considered, in respect of the comments at issue, the applicant company to be a host provider (see paragraphs 24 and 30 above). However, whether there may be an interference with Article 10 cannot depend on the legal categorisation of a provider by the domestic courts. Rather, the Court finds that it must take into account the circumstances of the case as a whole.", "73. While the Court accepts that the applicant company acted as a host provider with regard to the publication of the comments at issue, this was only one of its roles as a media company. It publishes a daily newspaper (and an online version thereof) and maintains a news portal on which it initiates conversations regarding its articles by inviting users to post comments (see paragraph 5 above). It does not only provide a forum for users but takes an active role in guiding them to write comments, describing those comments as an essential and valuable part of the news portal (see paragraph 7 above). User-generated content on the applicant company’s portal is at least partly moderated (see paragraphs 8-12 above). The Court finds that these activities are closely interlinked. This is supported by the fact that there is no separate editorial office for the portal, which is described as a platform for dialogue as a whole – including both articles and discussions on those articles (see paragraphs 5 and 7 above). It is thus apparent that the applicant company’s overall function is to further open discussion and to disseminate ideas with regard to topics of public interest, as protected by freedom of the press (see paragraph 68 above).", "74. In the light of the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe (see Delfi AS, cited above, § 44), which emphasises the principle of anonymity for Internet users in order to enhance the free expression of opinions, information and ideas (see also the UN Special Rapporteur’s report cited above in paragraph 46), the Court has no doubt that an obligation to disclose the data of authors of online comments could deter them from contributing to debate and therefore lead to a chilling effect among users posting in forums in general. This affects, indirectly, also the applicant company’s right as a media company to freedom of press. It invites users to comment on its articles in order to further discussion on its journalistic work (see paragraphs 5 and 65 above). To achieve this goal, it allows authors of comments to use usernames (see paragraph 7 above); upon registration, users are informed that their data will not be seen publicly and will only be disclosed if required by law (see paragraphs 6 and 7 above). The forums’ rules dictate that certain content is not accepted, and that comments are screened by a keyword system, may be subject to a manual review and will be deleted if they are not in line with the rules (see paragraphs 7-12 above).", "75. The Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of such information once disclosed, which may considerably aggravate the effects of unlawful speech compared to traditional media (see Delfi, cited above, § 147). It therefore agrees with the Government (see paragraph 61 above) that the Convention does not provide for an absolute right to anonymity on the Internet.", "76. At the same time, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of opinions, ideas and information in an important manner, including, notably, on the Internet (see Delfi, cited above, § 147). Thus, it can indirectly also serve the interests of a media company (see paragraph 74 above).", "77. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification. A service provider may also allow an extensive degree of anonymity for its users, in which case users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators (see Delfi, cited above, § 148).", "78. In the instant case, the applicant company, as a media company, awards its users a certain degree of anonymity not only in order to protect its freedom of the press but also to protect users’ private sphere and freedom of expression – rights all protected by Articles 8 and 10 of the Convention (see paragraphs 68 and 73 above). The Court observes that this anonymity would not be effective if the applicant company could not defend it by its own means. It would be difficult for users to defend their anonymity themselves should their identities have been disclosed to the civil courts.", "79. The Government’s argument that no final decision on the lawfulness of the comments has been taken (see paragraph 59 in fine above) does not change the evaluation, as the interference lies in the lifting of anonymity and the effects thereof, irrespective of the outcome of any subsequent proceedings. Such an interference with the media company’s rights will weigh less heavily than the interference in a case in which the media company is held liable for the content of a particular comment by being fined or obliged to delete it. The weight of a given interference is however a matter to be examined in a proportionality test when balancing the interests at stake (see paragraphs 92-95 below).", "80. The Court therefore finds that the domestic courts’ orders in the two sets of proceedings to disclose the requested user data constituted an interference with the applicant company’s right to enjoy freedom of the press under Article 10 § 1 of the Convention. Such interference will be incompatible with Article 10 § 2 of the Convention unless it is “prescribed by law”, pursues one or more legitimate aims and is “necessary in a democratic society” in order to achieve the aim concerned.", "(b) Lawfulness and legitimate aim", "81. It was not disputed between the parties that the interference was prescribed by law (namely, by section 18(4) of the E-Commerce Act – see paragraph 37 above), nor that it served a legitimate aim (namely, the protection of the reputation and rights of others).", "(c) Necessary in a democratic society", "82. It remains to be determined whether the impugned interference was “necessary in a democratic society”.", "(i) General principles", "83. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts) and the cases cited therein).", "84. The relevant principles concerning the balancing of interests when examining an interference with freedom of expression have been summarised as follows (see Delfi AS, cited above, §§ 138 and 139):", "“138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other he right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG [ v. Germany [GC], no. 39954/08,] § 84[, 7 February 2012]).", "139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).”", "85. The Court has identified a number of relevant criteria that must guide its assessment when balancing Article 8 and Article 10, of which particularly pertinent to the present case are: whether a contribution is made to a debate of public interest; the subject of the report in question; the prior conduct of the person concerned and how well he or she is known; the content, form and consequences of the publication in question; and the gravity of the penalty imposed on the journalists or publishers (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109 to 113, ECHR 2012; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90 to 95, 7 February 2012).", "86. In this regard, the Court reiterates, that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 96).", "87. As to the limits of acceptable criticism, the Court has repeatedly held that freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. The limits of acceptable criticism are accordingly wider in respect of a politician than in respect of a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, §§ 58-59, Series A no. 204; Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 121).", "88. Moreover, the Court has clearly stated that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10, by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Delfi AS, cited above, § 136 and the cases cited therein).", "(ii) Application of those principles to the present case", "89. The instant case concerns the applicant company’s duty as a host provider to disclose personal data of its users, not its own civil (or criminal) liability for the users’ comments (see paragraph 68 above; compare and contrast Delfi, cited above, § 128). Moreover, the comments made about the plaintiffs (see paragraphs 14, 15 and 19 above) although offensive and lacking in respect, did not amount to hate speech or incitement to violence (see the case-law quoted in paragraph 88 above), nor were they otherwise clearly unlawful (compare and contrast Delfi, cited above, § 128).", "90. The comments in question concerned two politicians and a political party, respectively, and were expressed in the context of a public debate on issues of legitimate public interest, namely the conduct of those politicians acting in their public capacities and their own comments published on the same news portal (see paragraphs 13 and 18 above).", "91. Although anonymity on the Internet is an important value (see paragraphs 76-78 above), the Court is aware that it must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008).", "92. The importance of a sufficient balancing of interests arises from this awareness, in particular if political speech and debates of public interest are concerned. This issue is not only reflected in the Court’s longstanding case-law (see paragraphs 86-87 above), but also in the above mentioned international-law material concerning Internet intermediaries: the relevant documents of the Council of Europe and the United Nations Human Rights Council state that requests for the disclosure of user data must be necessary and proportionate to the legitimate aim pursued (see paragraphs 45-48 above). As the Government has pointed out (see paragraph 60 above), a potential victim of a defamatory statement must be awarded effective access to a court in order to assert his or her claims before that court. In the Court’s view this means that the domestic courts will have to examine the alleged claim and weigh – in accordance with their positive obligations under Articles 8 and 10 of the Convention – the conflicting interests at stake, before deciding whether the data relating to the author’s identity are to be disclosed. In the instant case, those conflicting interests do not only comprise the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press, but also its role in protecting the personal data of the comment’s authors and the freedom to express their opinions publicly (see paragraph 78 above).", "93. The Court agrees with the appeal courts that the comments in questions could be understood as seriously offensive. However, while the first-instance courts in both sets of proceedings did conduct a balancing test (see paragraphs 24 and 30 above), the appeal courts and the Supreme Court did not give any reasons why the plaintiffs’ interests in the disclosure of the data were “overriding” the applicant company’s interests in protecting their authors’ anonymity. This is of particular concern in a case like the present one where the comments could be characterised as political speech that could not be considered as being clearly illegal. Referring to the Supreme Court’s case-law they only argued that the balancing of interests was not a matter to be examined in proceedings against the relevant service provider, but rather should be carried out during proceedings against the author of the allegedly defamatory comments. According to the appeal courts and the Supreme Court, it was sufficient that “a layperson was capable of perceiving that a finding of liability under Article 1330 of the Civil Code could not be ruled out”. If that was the case, the person concerned would have an overriding interest in the disclosure of the user data (see paragraphs 25-26, 27, 31-32 and 39 above). They thus concluded directly from the refusal of editorial confidentiality, the comments’ offensive nature and the requirement that a finding of liability could not be ruled out to the applicant company’s duty to disclose the data.", "94. The Court finds that the Supreme Court’s case-law does not preclude a balancing of interests. In fact, this case-law would have provided for a certain balancing between the opposing interests in respect of fundamental rights when requiring an assessment whether a finding of liability under Article 1330 of the Civil Code could not be ruled out. This applied all the more to the instant case, as it was obvious that the comments at issue were part of a political debate. However, the appeal courts and the Supreme Courts did not base their assessment on any balancing between the interests of the authors of the particular comments and of the applicant company to protect those authors, respectively, on the one side, and the interests of the plaintiffs concerned on the other side.", "95. As stated above (see paragraphs 68 and 89), the Court does not overlook that the instant case did not concern the applicant company’s liability for the comments (by contrast, see Delfi AS, cited above, § 142; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 71). In this regard, the Court accepts that for a balancing exercise in proceedings concerning the disclosure of user data, a prima facie examination may suffice (see paragraph 66 above). In fact, section 18(4) of the E-Commerce Act (see paragraph 37 above) allows for the establishment of prima facie evidence. This was not disputed by the Government (see paragraph 58 above). Furthermore, the courts enjoy a certain margin of appreciation, even if it is narrow when political speech is concerned (see paragraph 86 above). However, even a prima facie examination requires some reasoning and balancing. In the instant case, the lack of any balancing between the opposing interests (see paragraph 94 above) overlooks the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information, in particular if political speech is concerned which is not hate speech or otherwise clearly unlawful. In view of the fact that no visible weight was given to these aspects, the Court cannot agree with the Government’s submission that the Supreme Court struck a fair balance between opposing interests in respect of the question of fundamental rights (see paragraph 60 above).", "96. The Court finds that in the absence of any balancing of those interests the decisions of the appeal courts and of the Supreme Court were not supported by relevant and sufficient reasons to justify the interference. It follows that the interference was not in fact “necessary in a democratic society”, within the meaning of Article 10 § 2 of the Convention.", "97. There has accordingly been a violation of Article 10 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "98. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "99. The applicant company claimed a total amount of 17,882.38 euros (EUR) in respect of pecuniary damage. This sum is composed of EUR 12,254.80 for the costs of legal representation (including VAT) and court fees, which it had to pay to K.S. and FPK in the first set of proceedings, and EUR 5,627.58 for the costs of legal representation (including VAT) and court fees, which it had to pay to H.K. in the second set of proceedings.", "100. The Government did not contest this claim.", "101. The applicant company also claimed EUR 6,000 in respect of non ‑ pecuniary damage.", "102. The Government contested this claim, arguing that the applicant company had failed to set out the basis of its calculation and that the finding of a violation of a Convention right often constituted in itself sufficient reparation.", "103. The Court reiterates that it cannot speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 of the Convention (see Osinger v. Austria, no. 54645/00, § 57, 24 March 2005 and the references cited therein). The same applies in the instant case in which a procedural violation of Article 10 is found (see paragraph 96 above). Accordingly, the Court dismisses the applicant company’s claim for pecuniary damage. As regards the claim for non ‑ pecuniary damage, the Court finds that given the circumstances of the present case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant company may have sustained (see, for example and mutatis mutandis, Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 44, 25 January 2007).", "Costs and expenses", "104. The applicant company claimed EUR 22,780.96 for the costs and expenses incurred before the domestic courts and EUR 4,894 for those incurred before the Court. These sums include VAT.", "105. The Government considered these claims excessive and disputed the assertion that the procedural steps taken by the applicant company had been effective. The applicant company could not claim more than it would have been awarded had it been successful in the domestic proceedings. As regards the costs of the proceedings before the Court the Government argued that the applicant company had been able to rely in part on the written submissions presented in the domestic proceedings when preparing the submissions to the Court.", "106. According to the Court’s case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, 27 February 2007, and the cases cited therein). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 for costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant company.", "Default interest", "107. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1961 and lives in Berlin.", "6. He is a journalist on the German weekly magazine Stern. From 1 August 1999 until 31 July 2004 he was assigned to Brussels to report on the policies of the European Union and the activities of the European institutions.", "7. On 27 February and 7 March 2002 Stern published two articles by the applicant based on confidential documents from the European Anti-Fraud Office (OLAF). The first article reported on allegations by a European civil servant concerning irregularities in the European institutions. The second concerned the internal investigations OLAF had carried out into those allegations.", "8. A rumour began to circulate within OLAF that the applicant had paid 8, 000 euros (EUR) or German marks (DEM) to a European civil servant in exchange for this information.", "9. On 12 March 2002 OLAF, suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the European institutions, opened an internal investigation to identify the person who had disclosed the information to the applicant.", "10. The minutes of an OLAF Supervisory Committee meeting held on 9 and 10 April 2002 stated in particular:", "“ The members of the Supervisory Committee noted that the journalist ’ s articles were not at all aggressive in tone but hinted at the real situation, as was often the case with individuals. They were surprised that OLAF ’ s press release referred to a payment for such information. Consequently, they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard. ”", "11. In a letter of 24 March 2003 written in the course of his inquiry into a complaint (no. 1840/2002/GG) filed by the applicant against OLAF, the European Ombudsman indicated that the suspicions that the applicant had bribed an OLAF official had originated from “information from reliable sources, including members of the European Parliament ”.", "12. On 30 September 2003 OLAF issued a press release entitled “ OLAF clarification regarding an apparent leak of information ”. The press release was worded as follows:", "“ On 27 March 2002, the European Anti-Fraud Office (OLAF) issued a press release announcing that it had opened an internal investigation under Regulation 1073/1999 into an apparent leak of confidential information included in a report prepared within OLAF. It stated that according to information received by the Office, a journalist had received a number of documents relating to the so-called ‘... affair ’, and that it was not excluded that payment might have been made to somebody within OLAF (or possibly another EU institution) for these documents. OLAF ’ s enquiries have not yet been completed but to date, OLAF has not obtained proof that such a payment was made. ”", "13. On 30 November 2003 the European Ombudsman issued his decision. He had already submitted a draft recommendation to OLAF on 18 June 2003. The decision, which essentially reproduced the conclusions set out in the draft, stated in particular :", "“ ...", "1.7 ... by publishing this press release, OLAF has not adequately implemented the Ombudsman ’ s draft recommendation. Instead of withdrawing the allegations of bribery, OLAF simply states that ‘ to date ’ it has not found sufficient evidence to support these allegations. The wording of this press release thus implies that OLAF considers it possible that evidence supporting these allegations could still emerge. In these circumstances, the action taken by OLAF is manifestly inadequate to remedy the instance of maladministration that the Ombudsman has identified. A critical remark will therefore be made in this respect.", "...", "4. Conclusion", "4.1 On the basis of the Ombudsman ’ s inquiries into this complaint, it is necessary to make the following critical remark:", "By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration. ”", "14. On 11 February 2004 OLAF lodged a complaint with the Belgian judicial authorities, submitting a report on the internal investigation it had carried out. It also referred the matter to the German judicial authorities.", "15. Consequently, on 23 February 2004, an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant.", "16. On 19 March 2004, at the request of the investigating judge, the applicant’s home and workplace were searched by the Belgian judicial authorities. Almost all of the applicant ’ s working papers and tools were seized and placed under seal (sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet). It appears that the search warrant was not handed to the applicant but was read out to him. No inventory of the items seized was drawn up. On that occasion, the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by OLAF, which suspected him of having bribed a European civil servant in order to obtain confidential information. According to the applicant, the authorities subsequently lost a whole crate of papers, which was not found until more than seven months later, in November 2004.", "17. On 29 March and 15 April 2004 the applicant applied to the Principal Public Prosecutor at the Brussels Court of Appeal for leave to consult the investigation file. His application was refused in a letter dated 17 June 2004.", "18. The applicant applied again on 28 June 2004, to no avail.", "19. In the meantime, on 24 March 2004, he had applied to the investigating judge to have the measures relating to the seizure discontinued.", "20. By an order of 8 April 2004 the investigating judge rejected his application.", "21. The applicant appealed, alleging, inter alia, a breach of Article 10 of the Convention.", "22. The Indictment Division upheld the order on 22 September 2004, holding as follows:", "“The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom, and, if so, whether that right has an absolute value or is subject to restrictions, has not yet been established in law.", "The actual wording of Article 10 of the European Convention on Human Rights does not recognise the protection of journalistic sources, a right which has developed through the case - law of the European Court of Human Rights, albeit without having been enshrined as an absolute value according to legal authorities (see, to this effect, the judgment of the European Court of Human Rights in the case of Ernst and Others v. Belgium, 15 July 2003, no. 33400/96, Human Rights Information Bulletin no. 60, July-October 2003, pp. 4-5).", "Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information, although the exercise of this right does not give rise to immunity from prosecution or from civil liability (see in this connection the Bill granting journalists the right not to disclose their sources of information, passed by the Belgian House of Representatives on 6 May 2004, and the opinion of the National Council of Justice on the legislative proposals to grant journalists the right to protect their sources of information, approved by the General Assembly on 4 February 2004).", "The investigative measure complained of is, admittedly, an interference in the rights guaranteed by Article 10 of the ECHR. It was, however, lawfully ordered by the competent investigating judge in connection with the matter referred to him.", "It pursues legitimate aims since, in the context of the information in the case file brought to the attention of the court, whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information, its purpose is to ‘ verify whether the protection of confidentiality applies to a lawful or unlawful source; the latter must be overridden by a superior value, namely the prevention of crime’ (written application by the Principal Public Prosecutor of 18 June 2004, p. 14).", "As is rightly noted by the investigating judge, it is not acceptable that the right to protect sources can be used to cover up offences, since this would deprive that right of its purpose, notably the provision of accurate and reliable information to the public, and would be likely to jeopardise public safety by creating de facto impunity (see to this effect the judgment of the European Court of Human Rights of 15 July 2003, JLMB, 2003, p. 1524).", "...", "In the instant case, as the investigating judge noted in the order appealed against, in particular on page 3, paragraph 2.3.1, the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained, being justified by the ongoing duty to investigate, the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge.", "The arguments advanced by the applicant in his submissions to this court, which cannot substitute its own findings for those of the court below, do not give rise to any doubt in this respect.", "It follows that the appeal is unfounded .”", "23. The applicant appealed on points of law. Relying in particular on Articles 6, 8 and 10 of the Convention, he submitted that freedom of expression included the freedom to seek out and collect information, essential aspects of journalistic activity. According to the applicant, that meant that journalists’ sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources. The applicant also complained that since he had not had access to the investigation file, he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search.", "24. By a judgment of 1 December 2004 the Court of Cassation dismissed the appeal. It held that Article 10 of the Convention authorised restrictions on freedom of expression, that the search and seizure were provided for by the Code of Criminal Procedure and that the Indictment Division had given sufficient and adequate reasons for its decision. The Court of Cassation further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out. It was sufficient for the investigating judge to have evidence suggesting that that these premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant. Consequently, the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under Article 4 16 § 2 of the Code of Criminal Procedure, and was therefore inadmissible.", "25. In the meantime, on 1 and 4 June 2004, the applicant had lodged two applications with the Court of First Instance of the European Communities. The first sought the annulment of the complaint filed by OLAF and compensation for the harm allegedly caused to the applicant’s career and reputation. The second sought a temporary injunction prohibiting OLAF from inspecting any document seized during the searches at issue. By an order of 15 October 2004 the President of the court dismissed the applications. The President ruled that OLAF’s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment. He stressed in particular that OLAF’s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings, given that the competent authorities remained free to decide on the action to be taken in relation to the report. As regards the applicant’s application for interim measures, he ruled that there was no causal link between the alleged harm and OLAF ’ s action and that it had not been established that OLAF had acted in breach of the principles of good administration and proportionality.", "26. The applicant appealed. By an order of 19 April 2005 the President of the Court of Justice of the European Communities upheld the order.", "27. In the context of those proceedings, the applicant received a copy of OLAF’s complaint but not of the other documents in the criminal file. At that time, he had not been charged in Belgium. On 17 November 2006 the Hamburg public prosecutor informed the applicant ’ s counsel that the investigation in Germany had been closed without any charges being brought.", "28. On 12 May 2005 the European Ombudsman drafted a special report for the European Parliament following the draft recommendation he had addressed to OLAF in connection with a fresh complaint filed by the applicant (2485/2004/GG). In the complaint the applicant alleged that during the inquiry into complaint no. 1840/2002/GG, OLAF had provided incorrect information that was prone to mislead the Ombudsman; he requested the latter to conduct a new inquiry.", "29. In his above-mentioned report, the Ombudsman stated that the alleged remarks by the members of the European Parliament ( see paragraph 11 above) had probably never been made. They were rumours circulated by another journalist, Mr G., which the Director General of OLAF had not bothered to check with the members of the European Parliament concerned.", "30. In his recommendation, the Ombudsman concluded that OLAF should acknowledge that it had made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter’s inquiry into complaint no. 1840/2002/GG." ]

[ "II. RELEVANT DOMESTIC AND EUROPEAN LAW", "31. Article 458 of the Belgian Criminal Code provides :", "“ Medical practitioners, surgeons, health officers, pharmacists, midwives and all other persons who, by reason of their status or profession, are guardians of secrets entrusted to them and who disclose them, except where they are called to give evidence in legal proceedings (or to a parliamentary commission of inquiry) or where the law requires them to do so, shall be liable to imprisonment for between eight days and six months and a fine ranging from one hundred to five hundred francs. ”", "32. The relevant provisions of the Code of Criminal Procedure read as follows:", "Article 87", "“The investigating judge may, if required to do so or of his own motion, visit the home of the accused to search papers, effects and, in general, any items that may be deemed useful in establishing the truth. ”", "Article 88", "“Similarly, the investigating judge may visit any other places at which he suspects that the items referred to in the preceding paragraph may have been hidden. ”", "33. Article 8 of Regulation EC No. 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF provides as follows in respect of confidentiality and data protection:", "“1. Information obtained in the course of external investigations, in whatever form, shall be protected by the relevant provisions.", "2. Information forwarded or obtained in the course of internal investigations, in whatever form, shall be subject to professional secrecy and shall enjoy the protection given by the provisions applicable to the institutions of the European Communities.", "Such information may not be communicated to persons other than those within the institutions of the European Communities or in the Member States whose functions require them to know, nor may it be used for purposes other than to prevent fraud, corruption or any other illegal activity.", "... ”", "34. Article 16 of the same Regulation provides that it is binding in its entirety and directly applicable in all Member States.", "35. Paragraph 4 of Article 280 of the EEC Treaty states as follows;", "“ The Council, acting in accordance with the procedure referred to in Article 251, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the protection of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States. These measures shall not concern the application of national criminal law or the national administration of justice .”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "36. The applicant alleged that the searches and seizures carried out at his home and place of work had violated his right to freedom of expression as provided under Article 10 of the Convention, the relevant part of which reads as follows:", "“ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, ... for the protection of the reputation or rights of others, [or] for preventing the disclosure of information received in confidence ... ”", "A. Admissibility", "37. The Court notes that this complaint is not manifestly ill- founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other ground. Accordingly, it must be declared admissible.", "B. Merits", "1. Arguments of the parties", "( a) The applicant", "38. Firstly, the applicant maintained that the proceedings had not been directed against him in any way. Criminal law must be interpreted strictly and, since it had not been shown that the conditions for application of Article 458 of the Criminal Code had been met, the Government ’ s contention that that Article was applicable in the instant case had to be rejected. Furthermore, professional secrecy as enshrined in Article 8 of Regulation EC No. 1073/1999 did not equate to professional secrecy for the purposes of Article 458 of the Criminal Code, since the latter Article was intended to protect the interests of individuals and concerned personal data which had come to a person’s knowledge in the performance of his or her duties. The professions satisfying the relevant criteria were those which, owing to the nature of their activities, placed those who carried them out in a situation in which they would become aware of hidden aspects of private life ( for example, medical practitioners, ministers of religion, lawyers or notaries). The information allegedly disclosed by the OLAF official, assuming that it was covered by professional secrecy under the Regulation, had in no way concerned personal matters relating to the private life of an individual for the purposes of Article 458 of the Criminal Code.", "39. European civil servants were not explicitly covered by Article 458, as was manifestly obvious from the text itself.", "40. The Regulation, despite being directly applicable in the Belgian legal order, had been adopted on the basis of Article 280 of the EEC Treaty ( see paragraph 35 above), from which it followed that the Regulation in question did not seek to define or redefine any particular provision of the Belgian Criminal Code. This simply confirmed that failure to observe the professional secrecy by which OLAF officials were bound did not constitute an offence under Belgian criminal law.", "41. Article 8 § 2 of the Regulation, which dealt with professional secrecy, provided that the information covered by such secrecy “ shall enjoy the protection given by the provisions applicable to the institutions of the European Communities”. Accordingly, no reference was made to the provisions of domestic law. A breach of the duty of non-disclosure to which the Staff Regulations of Officials of the European Communities referred or of the professional secrecy to which European civil servants were subject by virtue of the Regulation was punishable in disciplinary rather than criminal proceedings.", "42. The applicant challenged both the lawfulness and the legitimacy of the searches complained of. Relying on the case - law as it had stood at the time of the searches, he argued firstly that although the Protection of Journalists’ Sources Act of 7 April 2005 had been passed after the searches had been carried out, it was applicable by analogy in the instant case. In his submission, that Act had set forth in law the principles reaffirmed on many occasions by the Court, which had already been applied in the Belgian legal system. The applicant further argued that the searches had been unlawful as they had not been carried out in pursuit of any of the aims referred to in paragraph 2 of Article 10, but merely in order to discover the applicant ’ s source, that is to say, the name of the OLAF official who had breached professional secrecy, or evidence of possible bribery.", "43. As to whether the interference had been necessary, the applicant pointed out that no charges had ever been brought against him, the searches having been carried out in respect of a person or persons unknown. In his submission, the fact that the published articles contained confidential information proved at most that an OLAF official had probably disclosed confidential information. However, that fact did not provide evidence of any offence by a third party, let alone by the applicant. Moreover, the judicial authorities had failed to check the information referred to in OLAF’s interim report before conducting the searches complained of. Such an attitude constituted unacceptable negligence. The report could in no way be treated as a criminal complaint, but merely as the transmission of information by OLAF to the Belgian authorities. The forwarding of this report had not given rise to any obligation on the part of the judicial authorities, which had to assume full responsibility for checking the accuracy of the information contained therein and determining whatever action they considered appropriate to take on it. The report was not in itself sufficient proof of the lawfulness and legitimacy of the searches.", "44. The applicant added that the report had been worded in hypothetical terms and based exclusively on rumours. A simple reading of the text showed that OLAF had obtained only one witness statement, that of J.G., who had said that for the sum of EUR or DEM 8, 000, the applicant had obtained confidential information from an OLAF official working at the material time for a European Commissioner and for the Commission spokesperson, who had both been criticised in the articles published by the applicant. Faced with the clear lack of impartiality of the only witness statement on which the OLAF report was based, the investigating judge should, at the very least, have questioned J.G. to confirm his allegations before ordering the searches. In the applicant’s view, such checks had been all the more necessary since the searches had not concerned an ordinary individual but a journalist. Moreover, the Belgian courts had taken the view that the conviction of a journalist for handling information disclosed in breach of professional confidence or for aiding and abetting such a breach should be regarded as contrary to Article 10.", "45. The applicant further complained that the seizures carried out had been disproportionate. In support of his argument, he pointed out that the judicial authorities had not been able, either during the searches or subsequently, to provide him with an inventory of the items seized, on the pretext that it would be too burdensome to draw up a full list. Moreover, the authorities had lost a crate of documents, which the police had not found until more than seven months later, in November 2004.", "46. The applicant lastly contended that to cooperate with the investigating judge and provide documents possibly revealing the identity of his source would have been inconsistent with his obligations as a journalist, as laid down in the Declaration of the Rights and Duties of Journalists adopted in Munich on 25 November 1971 by the International Federation of Journalists, the Code of the Principles of Journalism adopted by the Belgian Association of Newspaper Publishers, the National Federation of Weekly Newspapers and the Belgian General Association of Professional Journalists, and the Resolution on journalistic freedoms and human rights adopted in December 1994 at the fourth European Ministerial Conference on Mass Media Policy.", "( b) The Government", "47. Referring to the relevant provisions of the Code of Criminal Procedure and to the Court’s conclusions in its Ernst and Others v. Belgium judgment (no. 33400/96, 15 July 2003), the Government submitted that it was futile for the applicant to contest the legal basis for the interference. As regards the applicant ’ s claim that the breach of professional secrecy by a European civil servant did not constitute an offence under Belgian law, the Government pointed out that Article 458 of the Criminal Code imposed a duty of professional secrecy on “ all ... persons who, by reason of their status or profession, are guardians of secrets entrusted to them ”. European civil servants, including OLAF officials, were guardians, by reason of their profession, of secrets entrusted to them; Article 458 of the Criminal Code therefore applied expressly to them. Furthermore, and above all, Article 8 of Regulation (EC) No. 1073/1999, directly applicable in the Member States, made OLAF officials subject to professional secrecy, and the crucial issue in the present case was that there was an obligation on OLAF officials to observe professional secrecy. As regards the applicant’s initial allegation that the searches complained of were illegal on the ground that bribery could not justify either a search or a seizure, the Government noted the applicant’s subsequent statement that “ corruption constitutes a crime which, from a theoretical point of view, and in certain conditions defined by law, may justify searches under Belgian law ”.", "48. The Government further submitted that the legitimacy of the interference had been established; the measures complained of had been intended to prevent the disclosure of information received in confidence and to prevent disorder and crime. Since the searches and seizures had been carried out in the context of the investigation conducted by the judicial authorities, it could not be disputed that they had pursued a legitimate aim.", "49. As to whether the interference had been necessary, the Government drew the Court ’ s attention to one factor that in their submission fundamentally set this case apart from other cases dealt with by the Court concerning the protection of journalistic sources, namely the applicant ’s conduct. In the instant case, the purpose of the searches and seizures had been not only to reveal the identity of the person who had breached the duty of professional secrecy by which he was bound, but also to find evidence that the applicant had offered and accepted bribes as principal or joint principal. The protection of sources could not be relied upon to cover up offences committed by journalists and to grant them immunity from prosecution. In Fressoz and Roire v. France ([GC], no. 29183/95, §§ 52 and 55, ECHR 1999-I), the Court itself had stressed that the press must not go beyond certain limits and must obey the criminal law and act in accordance with professional ethics.", "50. In the Government ’s submission, observance of criminal laws and the fight against corruption constituted an “ overriding public interest ” that had to prevail over the protection of sources. In the instant case, the articles published by Stern magazine and written by the applicant contained confidential information based on confidential documents emanating from OLAF. The investigating judge had had serious and precise information leading him to presume that the applicant had bribed a civil servant in order to obtain additional information. This presumption had been all the more legitimate since the information in question came from OLAF, a European agency with a sound reputation specifically engaged in the fight against corruption.", "51. OLAF had taken care to carry out an internal investigation before lodging its criminal complaint. The investigating judge had therefore had every reason to believe that the offences complained of by OLAF were not merely allegations made and circulated recklessly. The measures at issue had therefore not been intended as a means of “ fishing ” for offences as yet unknown, but had sought to reveal the truth as to the applicant ’s alleged misconduct. The national courts had furthermore approved the choice made by the investigating judge. The Court of Cassation had remarked that in order to assess the lawfulness of a search, “ it [was] sufficient for the investigating judge to have evidence suggesting that the premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant ”. The obvious conclusion was that at the material time there had been relevant evidence to justify the impugned measures.", "52. Lastly, the Government submitted that the impugned measures had complied with the principle of proportionality. They contended that the national courts were better placed than the Court to assess the proportionality of such measures and that it was extremely tricky to rule on questions of this nature, which were entirely dominated by the factual circumstances of each case. They concluded that the Court’s supervision could only be marginal. They further submitted that no criticism could be attached to the fact that the search had lasted eight hours since it would clearly be unreasonable to expect the authorities to survey the premises in a short period of time. They pointed out that a cabinet had been sealed at the scene following the applicant’s refusal to hand over the key to open it. The authorities had even suggested that the applicant tell them which documents he needed most so that they could examine them first.", "2. The Court ’ s assessment", "( a) General principles", "53. Freedom of expression constitutes one of the essential foundations of a democratic society and the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest ( see Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996-II; Roemen and Schmit v. Luxembourg, no. 51772/99, § 57, ECHR 2003-IV; and Ernst and Others, cited above ).", "54. The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest ( see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I, and Fressoz and Roire, cited above, § 45).", "55. As a matter of general principle, the “necessity” for any restriction on freedom of expression must be convincingly established. Admittedly, it is in the first place for the national authorities to assess whether there is a “pressing social need” for the restriction and, in making their assessment, they enjoy a certain margin of appreciation. In cases concerning the press, such as the present one, the national margin of appreciation is circumscribed by the interest of a democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10, whether the restriction was proportionate to the legitimate aim pursued (see, mutatis mutandis, Goodwin, cited above, § 40, and Worm v. Austria, 29 August 1997, § 47, Reports 1997-V).", "( b) Application of the above-mentioned principles in the instant case", "56. In the present case, the Court considers that the searches at the applicant’s home and place of work undoubtedly amounted to an interference with his rights under paragraph 1 of Article 10. The Government admitted as much.", "57. Such interference will breach Article 10 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “ necessary in a democratic society ” to achieve those aims.", "( i) Prescribed by law", "58. The Court, reiterating that it is primarily for the national authorities to interpret and apply domestic law, considers that the searches were indeed prescribed by law, namely by the various provisions of the Code of Criminal Procedure referred to by the Government ( see paragraph 32 above). The way in which these provisions were applied in the present case may affect the Court ’ s assessment of the necessity of the measure ( see Ernst and Others, cited above, § 97).", "( ii) Legitimate aim", "59. In the Court’s opinion, the interference pursued the “legitimate aim” of preventing disorder and crime and also sought to prevent the disclosure of information received in confidence and to protect the reputation of others.", "( iii) Necessary in a democratic society", "60. The main issue is whether the impugned interference was “ necessary in a democratic society” to achieve that aim. It must therefore be ascertained whether the interference met a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient.", "61. The Court notes that the facts of the case are similar to those in the cases of Roemen and Schmit and Ernst and Others cited above. The Government submitted that this case differed from the others on account of the conduct of the applicant, who had not been a passive party in the leak of confidential information but had brought it about himself by bribing the OLAF official. The Court notes that OLAF opened an internal investigation to reveal the identity of the official who had disclosed this information to the applicant and published a press release in which it informed the public that it could not be ruled out that a payment might have been made to one of its officials ( see paragraphs 9 and 12 above). OLAF even told the European Ombudsman, in the course of the inquiry into complaint no. 1840/200 GG filed by the applicant against OLAF, that the suspicions of bribery had arisen out of information from reliable sources, including members of the European Parliament ( see paragraph 11 above). In his decision of 30 November 2003 the European Ombudsman concluded that by proceeding to make allegations of bribery without a factual basis that was both sufficient and available for public scrutiny, OLAF had gone beyond what was proportional to the purpose pursued by its action, which constituted an instance of maladministration ( see paragraph 13 above).", "62. Since the internal investigation was not able to determine who was responsible for the leak, OLAF filed a complaint against the applicant on 11 February 2004 with the Belgian judicial authorities, which opened an investigation into bribery of a civil servant ( see paragraphs 14-15 above). On 19 March 2004 the applicant ’ s home and place of work were searched ( see paragraph 16 above).", "63. It is clear that, at the time when the searches in question were carried out, their aim was to reveal the source of the information reported by the applicant in his articles. Since OLAF ’ s internal investigation did not produce the desired result, and the suspicions of bribery on the applicant ’s part were based on mere rumours, as revealed by the European Ombudsman ’s inquiries on two occasions in 2003 and 2005, there was no overriding requirement in the public interest to justify such measures.", "64. They therefore undoubtedly impinged on the protection of journalists’ sources. The fact that the searches and seizures apparently proved unproductive did not deprive them of their purpose, namely to establish, for the benefit of OLAF, the identity of the person responsible for disclosing the confidential information (see, mutatis mutandis, Ernst and Others, cited above, § 100).", "65. The Court emphasises that the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution. This applies all the more in the instant case, where the suspicions against the applicant were based on vague, unsubstantiated rumours, as was subsequently confirmed by the fact that he was not charged ( see paragraph 27 above).", "66. The Court further notes the amount of property seized by the authorities: sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet. No inventory of the items seized was drawn up. The police even apparently lost a whole crate of papers, which were not found until more than seven months later ( see paragraph 16 above).", "67. The Court is thus of the opinion that while the reasons relied on by the national courts may be regarded as “ relevant ”, they were not “ sufficient ” to justify the impugned searches.", "68. It concludes that the measures complained of are to be considered disproportionate and, accordingly, that they breached the applicant ’ s right to freedom of expression enshrined in Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "69. The applicant complained of a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows :", "“ In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] ... tribunal. ”", "70. The applicant submitted that there had been a breach of the principle of equality of arms both before the Indictment Division and before the Court of Cassation, since those courts, in refusing to discontinue the seizures complained of, had ruled that the complaint by OLAF was well - founded. He also complained that he had not had access to the investigation file.", "71. The Court reiterates that equality of arms requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. The Court cannot see anything in the complaint, as formulated by the applicant, that might undermine this equality. Furthermore, according to the information in the case file, the applicant was never charged or committed for trial. On the basis of the information produced, the Court finds no appearance of a violation of this provision of the Convention.", "72. It follows that this complaint must be dismissed as being manifestly ill- founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "73. Article 41 of the Convention provides:", "“ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ”", "A. Non-pecuniary damage", "74. The applicant submitted that he had suffered damage not only as a result of having been deprived of his working documents and information media that had been removed by the police but also as a result of his loss of credibility in the eyes both of the public and of anyone who might be able to provide him with information as a journalist. Confidence in his ability to protect the anonymity of his sources, a vital part of a journalist ’ s profession, had been irrevocably shaken. He maintained that as a result, he was no longer in a position to cover the work of the European Commission as he had done in the past, since his potential sources of information no longer had any confidence in his ability to keep their identities secret. Furthermore, the searches carried out at his home and place of work had damaged his honour. Lastly, he submitted that he was unable to carry on his work in decent conditions, since approximately one thousand pages of documents useful for his work had been seized.", "He claimed 25, 000 euros (EUR) ex aequo et bono in respect of the non-pecuniary damage thus sustained.", "75. The Government submitted as their main argument that if the Court were to find that a violation could be attributed to the Belgian State, it would be for the applicant to establish before the national courts the damage he had sustained. It followed from the settled case - law of the Court of Cassation that by virtue of the principles governing redress for damage arising out of a legislative error ranking as a tort, reparation must be made for the fault committed by the State. In the alternative, the Government submitted that the applicant had furnished no evidence to support his claims.", "76. The Court has no doubt that in the circumstances of the case, the searches and seizures carried out at the applicant ’s home and place of work caused him anxiety and distress. Ruling on an equitable basis, as required by Article 41, the Court awards him the sum of EUR 10, 000 in respect of non-pecuniary damage.", "B. Costs and expenses", "77. The applicant asserted that the costs and fees of his lawyers relating to his representation amounted to EUR 116, 422.43, although the services actually provided by his counsel were considerably in excess of that amount. His employer had agreed to advance that sum. He submitted that half of the services provided related to his representation before the Belgian courts and before the Court. He sought a lump sum of EUR 50, 000.", "78. The Government submitted that the applicant had not explained in sufficient detail how he had arrived at that exact figure.", "79. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI). Furthermore, legal costs are only recoverable in so far as they relate to the violation found ( see Van de Hurk v. the Netherlands, 19 April 1994, § 66, Series A no. 288).", "80. The Court notes that the applicant has submitted three invoices to it ( amounting to a total of EUR 98, 864. 66 ) in relation to steps taken by his lawyers in 2004 and his representation before the Belgian authorities. The Court does not doubt that the purpose of such steps was essentially to secure redress for the Convention violations alleged before the Court. It further notes the applicant ’ s statement that a large part at least of his lawyers’ fees has been advanced by Stern magazine.", "81. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41 of the Convention, the Court finds it reasonable to award EUR 30,000, plus VAT, in respect of all costs incurred in Belgium and in Strasbourg.", "C. Default interest", "82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant company has its registered office in Luxembourg.", "7. On 17 December 2008 the Portuguese-language newspaper Contacto Semanário (hereafter “ Contacto ”), published by the applicant company in Luxembourg, printed an article describing the situation of families who had lost custody of their children. The Central Social Welfare Department (SCAS) had allegedly instigated the withdrawal of custody in the cases concerned. The journalist reported on the case of two teenagers and the social worker dealing with their case, providing names. The teenage girl had reportedly suffered attempted rape and the teenage boy had allegedly burnt a friend with a cigarette. The article had been signed “Domingos Martins”.", "8. The list of officially recognised journalists in the Grand Duchy of Luxembourg by the Press Council includes no journalist of that name. The list contains the names of several hundred journalists in alphabetical order of their surnames. Under the letter “D” is a journalist named De Araujo Martins Domingos Alberto.", "9. The social worker complained about the article to the Director of the SCAS, who in turn complained to the Attorney General, contending that it amounted to defamation both of this specific social worker and of the Luxembourg judicial and social system in general. On 5 January 2009 the social worker also lodged a complaint.", "10. On 30 January 2009 the public prosecutor of the Luxembourg District Court opened a judicial investigation in respect of a person or persons unknown, for a breach of section 38 of the Youth Welfare Act (amended) of 10 August 1992, as well as defamation or calumny.", "11. On 30 March 2009 an investigating judge issued a search and seizure warrant in respect of the registered office of the applicant company, in the latter’s capacity as the publisher of Contacto “in order to search and seize any documents and items, in whatever form and on whatever medium, connected with the offences charged, including any element conducive to identifying the perpetrator of the offence or the Contacto newspaper employee who wrote the article in issue which was published in Contacto on 17 December 2008”.", "12. On 7 May 2009 police officers visited the newspaper’s premises (at the applicant company’s registered office) with the warrant. The Government explained that when the investigators had visited the newspaper’s premises, the aim of this investigatory measure had been solely, in their own minds, to identify the author of the article in question. The Government cited in evidence the following passage from the 11 May 2009 police report on the search (original German):", "“In order to ascertain the identity of the author of the article ... the authority [the investigating judge] issued a search warrant. Prior to the execution of this warrant, the procedure was clarified with the authority [the investigating judge]. It was decided that the search was exclusively geared to clearly identifying of the author of the article.”", "13. The journalist who had written the article gave the police officers a copy of the newspaper, a notebook, various documents (including judicial decisions on one of the subjects of the article) on which the article had been based, and a computer file and CD containing the article. The case file shows that the journalist, assisted by the lawyer of the publishing house and the editor-in-chief of Contacto at the time of the search, signed the search report without availing himself of the option of adding comments.", "14. According to the applicant company, their cooperation had been forced on them as the police officers had impressed upon the journalist that in view of the search and seizure warrant he had no option but to cooperate.", "However, it emerged from an internal report drawn up by the applicant company on 8 May 2009 that the journalist told the police officers “ that he had no objection to giving them a copy [of his] notes ” and that the editor-in-chief of the newspaper had suggested handing over an electronic version of the article to the police officers. The same report stated that a police officer had inserted a USB memory stick into the journalist’s computer. The applicant company pointed out that it did not know whether he copied any files, although the case file showed that the police officers had at no stage been left alone on the premises. When the police officer had inserted the USB memory stick into the computer the applicant company’s lawyer had been present and had not objected.", "The 11 May 2009 police report on the search stated that the journalist, with the agreement of the editor-in-chef, had said that he was prepared to cooperate with the police. The police officers had replied that they had not expected any other reaction but nevertheless handed him the investigating judge’s warrant, explaining that in the event of refusal to cooperate, pressure could be brought to bear.", "15. The 11 May 2009 police report also pointed out that the journalist had voluntarily handed over his notebook and a copy of the article to the police officers. He had also volunteered to show them, unbidden, the version of the article prepared on his computer and offered them a copy. Finally, he had also handed over a set of documents. The police officers had noted that the items taken away had been voluntarily presented and had exclusively served to exonerate the journalist, and there had been no mention of the of protection sources. In conclusion, they had stressed that the operation, which had taken between twelve and fifteen minutes, had taken place without any pressure and in a polite, respectful manner.", "16. No objection was raised in the domestic courts as to the accuracy of either the police report or the record of items seized.", "17. On 10 May 2009 the applicant company and the journalist applied to the chambre du conseil of the District Court to have the search and seizure warrant in issue and its execution declared null and void.", "18. On 11 May 2009 the investigating judge of his own motion ordered the discontinuation of the seizure and the return of all the documents and items seized during the search.", "19. On 20 May 2009 the chambre du conseil of the District Court ruled that the application to have the search and seizure declared null and void was unfounded.", "20. In a declaration of 29 May 2009 the applicant company and the journalist lodged a fresh appeal against that decision.", "21. On 27 October 2009 the chambre du conseil of the Court of Appeal upheld the order appealed against.", "22. The applicant company did not inform the Court of any action taken on this search of its premises." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "23. The relevant provisions of the Law of 1 September 1988 on civil liability of the State and the public authorities reads as follows:", "Section 1", "“The State and other public-law entities shall be liable, in the performance of their respective public service duties, for any damage caused by the defective functioning of their administrative and judicial services, subject to res judicata.", "However, where it would be unfair, having regard to the nature and purpose of the act causing the damage, to confer on the citizen responsibility for making good the damage suffered, compensation shall be payable even where a dysfunction in the service has not been proved, provided that the damage is extraordinary and exceptional and cannot be attributed to negligence on the part of the victim.”", "24. The relevant provisions of the Youth Welfare Act of 10 August 1992 read as follows:", "Section 38", "“It is prohibited to publish or disseminate the deliberations of the youth court in any manner whatsoever.", "The same applies to publishing or disseminating any facts which are liable to disclose the identity or personality of minors who are under prosecution or subject to one of the measures laid down in this Act.", "...", "The offences described in this Article shall be punishable by a prison sentence of between eight days and six months and a fine of between EUR 251 and EUR 10,000, or either of these two penalties.”", "25. The provisions of the Criminal Code on calumny and defamation read as follows:", "Article 443", "“Anyone who, in the circumstances set out below, maliciously accuses another person of something which is liable to damage this person’s repuration or to expose him or her to public scorn, shall be guilty of calumny if, in cases where it is possible by law to prove the accusation, no such proof has been supplied. He or she shall be guilty of defamation if the law does not allow such proof to be adduced.", "The person responsible within the meaning of section 21 of the Law of 8 June 2004 on freedom of expression in the media shall not be ... guilty of calumny or defamation.", "1) where, in cases where it is possible by law to prove the accusation, such proof has not been supplied but the person responsible within the meaning of the aforementioned section 21, provided that he or she has taken the requisite legal steps, proves by means of any available remedy that he or she had sufficient reason to conclude that the accusations reported were accurate and that there was an overriding public interest in disseminating the information in question;", "...”", "26. Section 21 of the Law of 8 June 2004 on freedom of expression in the media reads as follows:", "“Civil or criminal liability for any fault committed via the media shall be incurred by the specific employee, where he or she is known, failing which the editor or broadcaster shall be responsible.”", "27. The Code of Criminal Procedure does not explicitly provide for the voluntary presentation of items when judicial investigations are initiated. Seizures ordered by a court constitute the normal mode of attachment of items required for the purposes of the investigation. The relevant provisions on searches and seizures in the Code of Criminal Procedure read as follows:", "Article 51 § 1", "“The investigating judge shall, in accordance with the law, conduct all the investigative measures which he or she deems useful for establishing the truth. He or she shall collect and verify, with equal care, the facts and circumstances incriminating or exonerating the accused.”", "Article 65 § 1", "“Searches shall be conducted in any place in which objects that would assist in establishing the truth may be found.\"", "Article 66 § 1", "“The investigating judge shall carry out the seizure of any objects, documents, effects and other items referred to in Article 31 § 3.”", "Article 31 § 3", "“The investigating judge shall seize the objects, documents and effects which were used to commit the crime or were intended to commit it, and those which constituted the object of the crime, as well as any apparent proceeds from the crime, and also, generally, anything which may assist in establishing the truth and whose use may impede progress in the investigation, or which is liable to confiscation or restitution.”", "THE LAW", "I. ADMISSIBILITY", "28. The Government raised an objection of inadmissibility for non-exhaustion of domestic remedies. They submitted that the applicant company should have brought an action for damages against the State for the defective functioning of State judicial services, under section 1 of the Law of 1 September 1988 on the civil liability of the State and the public authorities (hereafter “the 1988 Law”). In support of this objection the Government relied on a judicial finding by a domestic court against the State for the excessive length of a set of judicial proceedings. The Government explained that the domestic courts could not have adduced the principle of res judicata in the case of the applicant company because decisions given by the chambre du conseil did not constitute res judicata. The Government also enclosed a 16 December 2005 judgment from the Luxembourg District Court and a judgment of 10 December 2009 in which the Court of Appeal had upheld the District Court’s judgment, declaring the Luxembourg State liable for the damage caused by a search, pursuant to section 1(1) of the 1988 Law. Otherwise the applicant company could always have sought compensation for the damage under section 1(1) of the 1988 Law, which provided for compensation for victims of damage, even where the functioning of State services had not been defective, in cases of flagrant injustice.", "29. The applicant company argued that the objection of inadmissibility should be dismissed on the grounds that the effectiveness of the remedy mentioned by the Government was only established in respect of cases of unreasonable length of proceedings. Moreover, it submitted that section 1 of the 1988 Law included an explicit reservation concerning the res judicata principle which meant that courts dealing with actions for damages pursuant to this Law could not find against the State for any injustices suffered by litigants as the result of a judicial decision (such as the judgment given in the instant case by the chambre du conseil of the Court of Appeal on 27 October 2009) constituting res judicata.", "30. The Court reiterates that only remedies whichof Article 35 § 1 of the Convention require to be exhausted are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see Leandro Da Silva v. Luxembourg, no. 30273/07, § 42, 11 February 2010, and Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)).", "31. The Court considers that the examples given by the Government in which the remedy under section 1(1) of the 1988 Law proved successful differ from the instant case. In length of proceedings cases, the diligence of the courts is under scrutiny, not the quality of their judicial activity. On the other hand, the case which was determined with final effect by the 10 December 2009 judgment of the Court of Appeal concerned not the principle of the search but the manner of its execution. The Court of Appeal in fact stated that “ in proceedings seeking to prove State liability vis-à-vis the execution of a search ordered by the investigating judge, it is unacceptable to focus the deliberations on the issue of the lawfulness, expediency and necessity of this investigative measure ”. Accordingly, the Government have not proved that the courts applied to under the 1988 Law would have jurisdiction to assess the necessity of an investigative measure, as the evidence produced shows that only the investigating judge holds such jurisdiction. However, the Government did not establish that it would still have been possible to apply to the investigating judge on this matter. Furthermore, the Government provided no examples of litigants obtaining compensation pursuant to section 1(2) of the 1988 Law. The Government have therefore failed to demonstrate the existence of an effective remedy which was not attempted.", "32. Under these circumstances, the objection of inadmissibility raised by the Government must be dismissed.", "33. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "34. The applicant company alleged that the search conducted on the premises of a newspaper which it published and owned had infringed the inviolability of its registered office (its “home”) and was disproportionate in the light of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his ... home ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "35. The Government contested this argument. They disputed the very fact that there could have been any interference, arguing that the journalist working for the applicant company had voluntarily cooperated in the measure in issue in order to demonstrate that he had taken the necessary steps within the meaning of Article 443 of the Criminal Code. In the alternative, the Government contended that the interference in question had been legally justified, had pursued the legitimate aims of preventing disorder and crime and protecting the rights and freedoms of others, and that it had been necessary in a democratic society. Confronted with facts which had constituted prima facie evidence of offences, it had been incumbent on the judicial authorities to initiate the requisite investigation for ascertaining the circumstances of the case in hand. The Government submitted that publishing companies could not be exempted from the implementation of criminal legislation, and that the impugned article had been published under a name which did not appear in the list of journalists officially recognised in Luxembourg, a fact which had necessitated investigations in order to identify the author of the article. Moreover, the interference had been fairly unintrusive given that the police officers had not actively searched for documents, all the documents seized had been voluntarily handed over by the journalist and the search and seizure had actually been in the journalist’s and the publishing house’s best interests. Furthermore, the investigating judge had only being doing his duty, since he had been obliged to gather both incriminating and exonerating evidence and since seizure was the only way to take possession of objects, even where they were handed over voluntarily.", "36. The applicant company, on the other hand, submitted that it had been forced to cooperate and that by its very nature a search constituted interference with its right to inviolability of its private address (“home”). In the instant case the search had been disproportionate because it had had to be justified by aims other than ascertaining the identity of the author of the article, who had been readily identifiable. Even if such identification really had been the aim of the search, the latter had been disproportionate because the courts had had other means of obtaining this information, such as writing to the editor-in-chief for confirmation of the journalist’s authorship.", "37. The Court reiterates, first of all, that the the notion of “home” in Article 8 § 1 does not only encompass a private individual’s home. The word “ domicile ” in the French version of Article 8 has a broader connotation than “home” and may, for example, also refer to a professional person’s office. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual and a legal entity’s registered office, branches or other business premises (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005-I; see also Société Colas Est and Others v. France, no. 37971/97, § 41, ECHR 2002-III, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 43), as in the case of the applicant company.", "38. The fact that the journalist and other employees of the applicant company cooperated with the police cannot be construed as making the search and the associated seizure less intrusive. The Court has already had occasion to find that cooperation under threat of a search cannot cancel out the interfering nature of such an act (see, mutatis mutandis, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 68 to 70, 14 September 2010). Nor has it been alleged in the present case that failure to cooperate would have prevented the police officers from executing the legal warrant entrusted to them. On the contrary, the police officers had made clear that they could carry out the measure by force in the event of a refusal to cooperate (see paragraph 14 above).", "39. The Court therefore considers that the search and the seizure carried out in the applicant company’s registered office must be construed as “interference” in the exercise of the applicant company’s rights under Article 8 § 1 of the Convention (see, mutatis mutandis, Roemen and Schmit v. Luxembourg, no. 51772/99, § 65, ECHR 2003 ‑ IV).", "40. Such interference will infringe Article 8 unless it satisfies the requirements of Article 8 § 2, that is to say, if it is in accordance with the law, pursues one of the aims set out in that paragraph and is necessary in a democratic society.", "41. In the light of Articles 51, 65, 66 and 31 of the Code of Criminal Procedure, the Court agrees with the parties that the interference was “in accordance with the law”.", "42. The Court further considers that the interference, which was geared to ascertaining the real identity of a person under prosecution in the framework of a judicial investigation and elucidating the circumstances surrounding the possible commission of an offence, pursued a “legitimate aim”, namely the prevention of disorder and crime. Moreover, the impugned article implicated a social worker, giving his name, as well as the names of the minors in question, on whom it provided fairly extensive details. From this angle, the interference also pursued a further legitimate aim, that is to say protecting the rights of others.", "43. As to whether the interference was “necessary”, the Court reiterates that “the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case must be convincingly established” (see Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B).", "44. The Court notes that in the instant case the journalist had signed his article “Domingos Martins”. Even though the list of officially recognised journalists in Luxembourg includes no such name, it does contain the name of “De Araujo Martins Domingos Alberto”, which comprises all the elements of the name under which the article in issue was published. Furthermore, no other name comprising these elements appears in the list. The list also points out that “De Araujo Martins Domingos Alberto” works for the newspaper Contacto. Therefore, the similarity in the names, the exclusiveness of the elements of the names and the connection with the newspaper in question forge an obvious link between the author of the impugned article and the person appearing on the list. Drawing on these elements, the investigating judge could have begun by ordering a less intrusive measure than a search in order to confirm the identity of the author of the article, if he had continued to deem such action necessary. Consequently, the search and seizure were unnecessary at that stage.", "45. The measures complained of were therefore not reasonably proportionate to the pursuit of the legitimate aims in question.", "46. There has therefore been a violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "47. The applicant company complained of a violation of its freedom of expression. The impugned measure was, in its view, objectionable in that it was geared to seeking out the journalist’s sources and had an intimidatory effect. It relied on Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "48. The Government challenged this argument on essentially the same grounds as for the complaint under Article 8. They also submitted that the search had in no way been geared to seeking out the journalist’s sources, as these had already been ascertained.", "49. The Court reiterates that protecting journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected (see, among many other authorities, Martin and Others v. France, no. 30002/08, § 59, 12 April 2012; Roemen and Schmit, cited above, § 46; Tillack v. Belgium, no. 20477/05, § 53, 27 November 2007; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 93, ECHR 2004 ‑ XI; and Sanoma Uitgevers B.V. v. Netherlands, cited above, § 50).", "50. The Court’s understanding of the concept of journalistic “source” is “any person who provides information to a journalist”; it understands “information identifying a source” to include, in so far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. Netherlands, no. 39315/06, § 86, 22 November 2012).", "51. The Court has previously held that searches of journalists’ homes and workplaces for the purpose of identifying civil servants who had provided the journalists with confidential information constituted interference with their rights under Article 10 § 1 (see Martin and Others v. France, no. 30002/08, § 70, 12 April 2012; Roemen et Schmit, cited above, § 47; Ernst and Others v. Belgium, no. 33400/96, § 94, 15 July 2003; Tillack, cited above, § 56; and Sanoma Uitgevers B.V., cited above, § 61).", "52. In Roemen and Schmit (cited above, § 47), the execution of the search and seizure warrant on the premises used by the journalists concerned had failed to secure the desired information. The Court therefore considered (§ 57) that this warrant was a more drastic measure than an order to divulge the source’s identity, because investigators who raid a journalist’s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist.", "53. In the present case, the Government denied that the aim of the search and seizure in issue had been to ascertain the journalist’s sources.", "54. The Court notes that the case file does not indicate that any sources were found other than those already published in the article. Nevertheless, in the light of the Court’s understanding of information likely to identify a source, and in view of the extent of the power bestowed by the search on the authorities searching the registered office of the applicant company, the Court considers that in the present case the police officers were capable, thanks to the warrant in issue, of accessing information which the journalist did not wish to publish and which was liable to disclose the identities of other sources.", "55. This is sufficient for the Court to conclude that in this case there was “interference” with the applicant company’s freedom to receive and impart information within the meaning of Article 10 § 1 of the Convention.", "56. The question therefore arises whether such interference can be justified under Article 10 § 2. The Court must accordingly consider whether the interference was “in accordance with the law”, pursued a “legitimate aim” under this paragraph and was “necessary in a democratic society”.", "57. Having regard to its conclusion under Article 8 (see paragraphs 41 and 42 above), the Court considers that the interference was in accordance with the law and pursued a legitimate aim.", "58. As to the necessity of such interference in a democratic society, the Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court (see Roemen and Schmit, cited above, § 46).", "59. The Court notes that in the present case the impugned warrant was aimed at searching and seizing “any documents and items, in whatever form and on whatever medium, connected with the offences charged ...”.", "60. The Court notes the relatively broad wording of this assignment. The search warrant conferred fairly extensive powers on the investigators (compare in this connection Roemen and Schmit, cited above, § 70). From this angle, the Court notes that the police officers, who were alone in carrying out the search, without any safeguards, were responsible for assessing the need to seize any given items.", "61. Even though the Court cannot deduce from the evidence provided by the parties whether the purpose of the search was to disclose the journalist’s sources, the wording of the warrant is clearly too broad to rule out that possibility. The Court cannot accept the Government’s explanation that the sources were already mentioned in the impugned article. The fact of some sources having been published did not rule out the discovery of other potential sources during the search. The Court considers that the impugned search and seizure were disproportionate inasmuch as they enabled the police officers to search for the journalist’s sources. The Court notes that the insertion of a USB memory stick into a computer is a procedure which can facilitate the retrieval of data from the computer’s memory, thus supplying the authorities with information unrelated to the offence in question. The warrant of 30 March 2009 was not sufficiently narrow in scope to prevent possible abuse. In view of the Government’s contention before the Court that the sole aim of the search was to ascertain the real identity of the journalist who had written the article, a more succinct wording only mentioning this aim would have been sufficient.", "62. In view of the foregoing, the Court finds that, in the particular circumstances of the case, the search and seizure carried out at the registered office of the applicant company were disproportionate to the aim pursued.", "63. There has therefore been a violation of Article 10 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "64. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "65. The applicant company did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award it any sum on that account.", "A. Costs and expenses", "66. On the other hand, the applicant company claimed EUR 8,210 for the costs and expenses incurred before the domestic courts and EUR 5,635 for those incurred before the Court.", "67. The Government left the assessment of these claims to the Court’s discretion.", "68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court notes that the bills produced include costs other than those related to the application to have the warrant in issue declared void. Although the applicant company is only claiming partial reimbursement, it has failed to provide documentary evidence of the amount claimed. The Court therefore decides to make no award to the applicant company in respect of this part of its claim. As to the costs and expenses for the proceedings before the Court, based on a separate bill, the Court considers that they should be charged in their entirety to the respondent State. Accordingly, having regard to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 5,635 for the proceedings before the Court and awards that sum to the applicant company.", "B. Default interest", "69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1971 and lives in Riga.", "6. The applicant, at the time of the material events, was working for the national television broadcaster Latvijas televīzija ( “LTV”). She was a producer, reporter and host of the weekly investigative news programme De facto, aired in prime time every Sunday night.", "A. Events leading up to and including the broadcast of 14 February 2010", "7. On 10 February 2010 the applicant received an e-mail from a person who called himself “Neo”, revealing that there were serious security flaws in a database maintained by the State Revenue Service ( Valsts ieņēmumu dienests – “the VID”). Allegedly, these flaws made it possible to access the data stored in the Electronic Declaration System ( Elektroniskā deklarēšanas sistēma – “the EDS”) without breaching any security protocols. In support of his allegations, “Neo” attached some examples of the data which he had downloaded in this manner (for example, salaries of LTV employees), the veracity of which the applicant could confirm. The applicant concluded that the data were genuine and that, most probably, there was a serious security flaw in the system. She then proceeded to inform the VID of a possible security breach.", "8. “Neo” did not reveal his identity to the applicant during their e-mail correspondence. He told her that there were more data which showed that the austerity measures in the public sector did not affect the highest-paid State officials. It transpired during their correspondence that “Neo” did not wish to reveal his identity.", "9. On 14 February 2010 the applicant, acting in her capacity as a journalist, announced during the broadcast of De facto that there had been a massive data leak from the EDS. She reported that the information concerned the income, tax payments and personal identity details of public officials, as well as private individuals and companies.", "10. One week after the broadcast, “Neo” started to publish data through his Twitter account concerning the salaries paid at various public institutions, at State and municipal levels; in some cases the names of the officials were included, and in others only the salaries were published. The information received wide media coverage. On 18 April 2010 he stopped publishing it.", "B. Criminal proceedings concerning the data leak", "11. On 10 February 2010, upon an application by the VID, criminal proceedings were instituted concerning the data leak.", "12. On 19 February 2010 the police went to LTV to take evidence from the applicant as a witness in the criminal proceedings. They asked for a transcript of the 14 February 2010 broadcast, as well as access to the e-mail correspondence with “Neo ”. The applicant declined to disclose the identity of her source or any information which could lead to its disclosure, referring to the right of non-disclosure as set forth in section 22 of the Law on Press and Other Mass Media.", "13. On the same date another journalist was also asked to disclose the identity of his journalistic source, as he had had a public communication with “Neo”, which had been aired during another television broadcast. He refused to testify since he did not consider that his source had done anything wrong.", "14. According to the Government, on 11 May 2010 the investigating authorities established that two of the IP address which had been used to connect to the EDS, had been used by a certain I.P. It was also established that I.P. had made several phone calls to the applicant ’ s phone number.", "15. On 11 May 2010, at about 6.55 p.m., I.P. was arrested in connection with the criminal proceedings; he was released from custody a few months later.", "16. On 12 May 2010 a police investigator informed the investigating judge that on the previous day four urgent searches had taken place at I.P. ’ s home, work and other premises. She also informed the judge of an urgent search at the applicant ’ s home (see paragraph 21 et seq. below). She then requested, under section 180, paragraph 5 of the Criminal Procedure Law, that the lawfulness of and the grounds for those searches be examined.", "17. On 14 May 2010 the investigator ordered a technical examination of the data storage devices that had been seized at the applicant ’ s home on 11 May 2010. According to the Government, all these devices were handed over to the relevant examination body within the State Police in two sealed bags. These packs remained unopened until 17 May 2010, when an expert opened them; their packaging or seals were not damaged. On 17 and 18 May 2010 the expert copied all the information from the data storage devices onto another computer using a special software programme. On 19 May 2010 he sealed the bags and handed them back to the investigator. On 21 May 2010 the data storage devices were returned to the applicant.", "18. On 15 June 2010 the technical examination was completed and, according to the Government, the information that had been copied was destroyed.", "19. The criminal proceedings against I.P. concerning the data leak appear to be pending at the pre-trial investigation stage.", "C. The search at the applicant ’ s home on 11 May 2010 and subsequent judicial review", "20. On 11 May 2010 the investigator drew up a search warrant, which was authorised by a public prosecutor the same day. The relevant parts of the warrant read as follows:", "“It transpires from the case materials that [I.P.] was using mobile phone number ... at the material time. According to the information provided by the [mobile phone service provider], on 6 July 2009, the registered date of the first attempt to download a nonexistent EDS XML file, and also on 8 July 2009 and 28 October 2009, the established dates on which separate EDS XML files were downloaded via the anonymous ‘ TOR ’ servers, subscriber ... made outgoing calls to the subscriber with number .... Periodic communication took place until 14 February 2010, when it ceased completely. According to the call history printouts, on several occasions both subscribers were served by the same electronic communications base stations, indicating the possibility that the subscribers met.", "It was established that [the applicant], identity code ..., residing in ..., was using the phone number ....", "The facts and circumstances established in connection with the criminal proceedings taken together serve as grounds for the conclusion that at the time the criminal offence was committed [the applicant] had frequent communication with [I.P.] and might possibly have information about the unlawful activities of [I.P.] connected with the illegal downloading of EDS XML files, and also on the processing, storage and distribution of these files, his accomplices and other information in connection with the criminal proceedings.", "Taking into account that the case materials give reasonable grounds to consider that at [the applicant ’ s home] there might be data storage devices that contain the XML files illegally downloaded from the EDS database and any derivatives thereof, software for processing these files, information about the obtaining and distribution of these files and other documents and items containing information about the crime that could serve as evidence in the criminal proceedings, it is necessary to carry out the search under the urgent procedure to prevent the destruction, concealment or damaging of such evidence.", "On the basis of sections 180(3) and 337 (2)(2) of the Criminal Procedure Law:", "DECIDED :", "1. to search [the applicant ’ s home ] with a view to finding and seizing documents and data storage devices containing XML files illegally downloaded from the EDS database and any derivatives thereof, software for processing these files, information about the obtaining and distribution of these files and any other items containing information about the crime under investigation. ”", "21. On 11 May 2010, from 9.34 to 10.30 p.m., the police conducted a search at the applicant ’ s home.", "22. According to the applicant, upon her return home that night a plain ‑ clothes policeman approached her in the stairwell and, without identifying himself, physically prevented her from closing the doors. Only then did he present a search warrant and proceed to conduct the search together with two other officers. During the search the following data storage devices were seized: a personal laptop, an external hard drive, a memory card and four flash drives. According to the applicant, these devices contained a large body of her personal data as well as most of her work-related material.", "23. The Government did not contest the applicant ’ s version of the events.", "24. On 12 May 2010 the investigating judge retrospectively approved the search warrant of 11 May 2010 in the form of an “ approval ” written on that warrant. No reasons were given.", "25. On 14 June 2010 the President of the first-instance court, upon a complaint by the applicant, upheld the investigating judge ’ s decision and concluded that the search was lawful and that the evidence obtained was admissible in the criminal proceedings. No hearing was held. She examined the applicant ’ s written complaints, the criminal case file and the investigator ’ s written explanation. The relevant part of the decision, which was final, reads:", "“Having considered the impugned decision of the investigating judge on its merits, I find it to be in compliance with the legal norms and the actual state of affairs. ...", "The investigator has taken sufficient actions to protect the rights of [the applicant] as a journalist. In particular, she assigned police officers to question [the applicant] as a witness, and [the applicant] used her right not to disclose her source.", "According to the domestic case-law, in most cases the court imposes an obligation on journalists to disclose sources of information only in cases when, purely objectively, there are no other options for solving or preventing a crime or in cases when any further crimes would substantially harm public and national-security interests.", "In the present proceedings, although the unlawful processing and uncontrolled dissemination of the personal data of several thousand, even hundreds of thousands of people is considered a substantial violation of the rights of the general public, the investigating authority did not apply to the investigating judge for an order to disclose the information source ... because ... it was decided not to pursue any investigative activities that would concern journalists, in line with the principle of proportionality and the rights of non-disclosure ...", "Accordingly, as the material in the case file shows, the further investigation focused on other leads, and the probable suspect was established by processing and analysing the records of the EDS, that is, with no disclosure of a journalist ’ s source. ...", "There is no reasonable ground to believe that the search at [the applicant ’ s] home was performed for the purpose of identifying the source of the information, because the aim of the search was to find the XML files downloaded from the EDS database and any derivatives thereof, software for processing these files and information about the obtaining and distribution of the files, and to stop any further unlawful dissemination of personal data. ...", "The present criminal proceedings were opened in connection with facts directly relating to the exchange of information in electronic form and therefore it is important to take into account the specific features of cybercrime, where the preservation, acquisition and recording of evidence in electronic form is delicate owing to the fact that such evidence can be modified or destroyed very quickly; it is also important to take into account the mens rea of the crime. ... I find that in this particular case the search under the urgent procedure was admissible. ...", "Since [the applicant] is an in-house and not a freelance journalist, there are no grounds to assume that material directly related to her professional activity would definitely be stored at her home, especially if she herself did not indicate that this was the case. If any such indications had been given, the investigating judge would have had grounds to evaluate such facts. ...", "In view of the above, I find that the 12 May 2010 decision by the investigating judge is justified and lawful and there are no grounds to revoke it; I am also of the opinion that there are no reasons to consider that the results of the actions under consideration are void.", "At the same time it should be explained to [the applicant] that any complaints of alleged breaches during the search or other investigative activities ought to be submitted in accordance with the procedure laid down in section 337 of the Criminal Procedure Law ...”", "D. Other review by the domestic authorities", "26. On 21 May 2010 a senior prosecutor replied to the applicant ’ s complaints about the investigator ’ s decision to conduct the search, its authorisation by the supervising prosecutor and the police officers ’ actions while carrying it out. He stated that he could not examine the grounds for the search; these had in any case been examined by the investigating judge and the President of the court.", "27. Moreover, he found that on 11 May 2010 the supervising prosecutor had lawfully authorised the search warrant. As to the return of the seized items, the matter was to be discussed with the competent investigating authority. Finally, a note was added that the applicant could lodge a complaint against the senior prosecutor ’ s reply with another branch of the prosecutor ’ s office.", "28. The Internal Security Bureau of the State Police ( Valsts policijas Iekšējās drošības birojs ), of its own motion, examined the police officers ’ conduct during the search. On 20 July 2010 the applicant was informed that no breaches of either the Criminal Procedure Law or the general principles of police officers ’ ethics had been found.", "E. Review by the Ombudsman", "29. On 13 May 2010 the Ombudsman opened an inquiry into the search at the applicant ’ s home with a view to ascertaining whether the search had interfered with her freedom of expression and whether the domestic authorities had had sufficient regard to the assessment of the limitations imposed on the freedom of the press.", "30. On 28 September 2010 he delivered his opinion, which was not binding on the domestic authorities. He examined not only whether the alleged violation of the applicant ’ s freedom of expression had taken place, but also whether there was an effective monitoring system in the country in that regard. As concerns the alleged interference with freedom of expression, and proportionality, he noted the following [emphasis as in the original]:", "“The protection of journalistic sources is provided for under section 22 of the Law [on Press and Other Mass Media] ... This does not mean the absolute immunity of a journalist in criminal proceedings, but the necessity to respect journalists ’ professional interests and legal guarantees.", "The decision of the competent investigating authorities to search the applicant ’ s place of residence was based on the information made public in the De facto broadcast. According to the list of objects searched, it was important to secure the evidence and to clarify how the journalist had received the information about the data “leak” from SRS EDS, and who was guilty. The wording used in the search warrant – “information about the obtaining and distribution” – clearly demonstrates the purpose of the competent investigating authorities to identify the journalistic source.", "That being so, the activities of the competent investigating authorities in the particular case concern[ed] the protection of journalistic sources and thus interfere[d] with the journalist ’ s freedom of expression.", "At the same time, the protection of journalistic sources is not absolute and may be restricted in certain cases in the public interest. This means that the competent investigating authorities, when taking a decision affecting a journalist, should evaluate the aspects of restriction of freedom of expression and the proportionality of such action - is the disclosure of such information truly necessary? Or maybe there are reasonable alternative measures, as specified in Principle 3 of the Recommendation [ No. R(2000) 7 ].", "[Reference to sections 12, 154, 179 and 180 of the Criminal Procedure Law ] Therefore, there is a legal basis for disclosure of journalistic sources, for searches and also for the lawful and proportionate restriction of human rights in criminal proceedings. It follows that such restrictions are prescribed by law.", "To assess the proportionality of those restrictions and the possibility of applying less harmful alternative means of achieving the aim, the Ombudsman asked the responsible authorities whether, for the purpose of obtaining information from the journalist, there had been sufficient grounds to opt for an emergency search out of all options offered by the [ Criminal Procedure Law ], rather than for a disclosure order under section 154 of the [ Criminal Procedure Law ].", "[The prosecutor ’ s office] replied that the purpose of the search had been to substantiate and obtain evidence in criminal proceedings, and not to identify the journalistic source, which was already known to the police; that was why disclosure under section 154 of the [Criminal Procedure Law ] was not ordered. The prosecutor ’ s office held the view that it had no right to give any opinion on the validity of the investigative action, since the activities of the investigating judge who approved the search had been examined by the President of the court.", "The court substantiated the need for a search under the urgent procedure by the fact that in criminal proceedings involving a flow of electronic documents it was necessary to take into account the specifics of cybercrimes, where the preservation, obtaining and recording of electronic evidence was rather delicate because such evidence could be altered and destroyed very quickly and irreversibly.", "Such a statement should be considered critically, since the officers of the State Police turned to the applicant with the request to provide information on her source on 19 February 2010, but the search under the urgent procedure was carried out on 11 May 2010. The materials submitted by the State authorities and the court to the Ombudsman do not contain any evidence of attempts by the journalist to continue unlawfully processing and further distributing the data, or to destroy such information.", "The need to conduct the search under the urgent procedure has also not been explained in the assessment provided by the court, if the materials of the case provided sufficient basis to consider that the applicant most likely knew, supported or participated in the crime under investigation by simultaneously using the information for journalistic purposes. If the competent investigating authority had such information at the time of making the decision on conducting the search, it is not clear why the police did not apply the status of a suspect to the journalist before the search and did not search the journalist ’ s place of work.", "It is considered established that the decision of the court is based upon assumptions, and in reaching the decision the court has not respected the status of the journalist, whose immunity and protection against disclosure of the information source are established in the law.", "Consequently, it can be concluded that by approving the search warrant issued by the competent investigating authority under the urgent procedure, the supervising prosecutor and the court made no critical assessment of the need for and validity of those actions.", "The Ombudsman has reservations as to whether a search at the applicant ’ s home under the urgent procedure was actually the most reasonable means of putting a stop to the disclosure of information at that point in the proceedings. In order to ensure compliance with the key principles of criminal proceedings established under section 12 of the [the Criminal Procedure Law ], the competent investigating authority should have given more careful consideration to whether the information necessary for the investigation could have been obtained by means less harmful to the interests of the person. ”", "His final conclusions were as follows:", "“ Freedom of expression includes the right not to disclose journalistic sources. Only a court, observing the principle of proportionality, may order the disclosure of an information source to protect the essential interests of private individuals or society.", "By conducting the search in [the applicant ’ s] home, purportedly in search, among other things, of information about the obtaining and distribution of the EDS database XML files, the competent investigating authority – in securing the evidence and disregarding the requirement to have a court order – discovered the identity of the applicant ’ s source.", "In authorising the search warrant issued by the investigator under the urgent procedure, the supervising prosecutor and the court failed to effect a critical examination of the urgency and the necessity of such a measure and did not sufficiently evaluate the threat to freedom of expression.", "Accordingly, the freedom of expression and the right not to disclose journalistic sources enshrined in the Constitution and binding international treaties have been violated.", "Since the legally protected immunity of a journalist in criminal proceedings is not incorporated in [the relevant chapter of the Criminal Procedure Law ] and the domestic case-law shows that the competent investigating authorities do not pay sufficient attention to it, it would be advisable to initiate a discussion on [legislative] amendments [to the relevant provision of the Criminal Procedure Law ]. In all likelihood the law should specify that it is prohibited to perform investigative activities involving journalists on premises belonging to them if there are reasonable grounds to consider that this might restrict the scope of the rights guaranteed to journalists.”", "i. the name and personal data as well as voice and image of a source,", "ii. the factual circumstances of acquiring information from a source by a journalist,", "iii. the unpublished content of the information provided by a source to a journalist, and", "iv. personal data of journalists and their employers related to their professional work.", "Principle 1 (Right of non-disclosure of journalists)", "Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.", "Principle 2 (Right of non-disclosure of other persons)", "Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.", "Principle 3 (Limits to the right of non-disclosure)", "a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10 § 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10 § 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre ‑ eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.", "b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:", "i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and", "ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:", "• an overriding requirement of the need for disclosure is proved,", "• the circumstances are of a sufficiently vital and serious nature,", "• the necessity of the disclosure is identified as responding to a pressing social need, and", "• member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.", "c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.", "Principle 4 (Alternative evidence to journalists ’ sources)", "In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.", "Principle 5 (Conditions concerning disclosures)", "a. The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.", "b. Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested.", "c. Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention.", "d. Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority.", "e. Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure.", "Principle 6 (Interception of communication, surveillance and judicial search and seizure)", "a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:", "i. interception orders or actions concerning communication or correspondence of journalists or their employers,", "ii. surveillance orders or actions concerning journalists, their contacts or their employers, or", "iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.", "b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.", "Principle 7 (Protection against self-incrimination)", "The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source.”", "33. For the precise application of the Recommendation, the explanatory notes specified the meaning of certain terms. As regards the terms “source” and “ information identifying a source ” the following was set out:", "“c. Source", "17. Any person who provides information to a journalist shall be considered as his or her ‘ source ’. The protection of the relationship between a journalist and a source is the goal of this Recommendation, because of the ‘ potentially chilling effect ’ an order of source disclosure has on the exercise of freedom of the media (see, Eur. Court H.R., Goodwin v. the United Kingdom, 27 March 1996, para. 39). Journalists may receive their information from all kinds of sources. Therefore, a wide interpretation of this term is necessary. The actual provision of information to journalists can constitute an action on the side of the source, for example when a source calls or writes to a journalist or sends to him or her recorded information or pictures. Information shall also be regarded as being ‘ provided ’ when a source remains passive and consents to the journalist taking the information, such as the filming or recording of information with the consent of the source.", "d. Information identifying a source", "18. In order to protect the identity of a source adequately, it is necessary to protect all kinds of information which are likely to lead to the identification of a source. The potential to identify a source therefore determines the type of protected information and the range of such protection. As far as its disclosure may lead to an identification of a source, the following information shall be protected by this Recommendation:", "i. the name of a source and his or her address, telephone and telefax number, employer ’ s name and other personal data as well as the voice of the source and pictures showing a source;", "ii. ’ the factual circumstances of acquiring this information ’, for example the time and place of a meeting with a source, the means of correspondence used or the particularities agreed between a source and a journalist;", "iii. ’ the unpublished content of the information provided by a source to a journalist ’, for example other facts, data, sounds or pictures which may indicate a source ’ s identity and which have not yet been published by the journalist;", "iv. ’ personal data of journalists and their employers related to their professional work ’, i.e. personal data produced by the work of journalists, which could be found, for example, in address lists, lists of telephone calls, registrations of computer-based communications, travel arrangements or bank statements.", "19. This list is not necessarily exhaustive. Paragraph c has to be read and interpreted in a manner which allows an adequate protection of a source in a given case. The decisive factor is whether any additional information is likely to lead to the identification of a source.”", "B. Domestic law", "34. Section 22 of the Law on Press and Other Mass Media ( likums “ Par presi un citiem masu informācijas līdzekļiem ”) lays down the principle of non-disclosure in Latvian law. The mass media have a right not to disclose sources of information (paragraph 1). An order to disclose a source of information may be made only by a court, after considering proportionality, for the protection of the essential interests of private individuals or society (paragraph 2).", "35. Section 154 of the Criminal Procedure Law ( Kriminālprocesa likums ) sets forth the circumstances when a journalist or an editor is under obligation to disclose a source of information. Such an order may be made only by a court (paragraph 1). The investigating judge, upon an application by an investigator or a public prosecutor, hears the parties and examines the material in the case file (paragraph 2) and assesses the proportionality of the measure (paragraph 3). The decision is amenable to judicial review by a higher-court judge, under a written procedure, whose decision is final (paragraph 4).", "36. Section 180 of the Criminal Procedure Law lays down the procedure for issuing a search warrant. Under the ordinary procedure, the investigating judge or court authorises the search upon an application by the competent investigating authority ( procesa virzītājs ), having examined the case file (paragraph 1). Under the urgent procedure, when a delay could allow the relevant documents or objects to be destroyed, hidden or damaged or the person to abscond, the search warrant may be issued by the competent investigating authority. Authorisation by a public prosecutor is necessary for a search warrant issued by the investigator (paragraph 3). A search warrant issued under the urgent procedure has to be submitted on the following day to the investigating judge, who then examines the lawfulness of and the grounds for the search; if an investigative action is unlawful, the investigating judge declares such evidence inadmissible in the criminal proceedings and decides on further action in relation to the evidence (paragraph 5).", "37. Section 337 of the Criminal Procedure Law lays down the procedure for submission of complaints. A complaint shall be addressed to and lodged with the authority that is competent to decide on it; it can also be submitted to an official whose action or decision is contested (paragraph 1). A complaint about an action or decision by an investigating judge shall be forwarded for examination to the President of the court (paragraph 2, part 4). When examining a complaint, the President of the court has to decide on merits; his/her decision is final (paragraph 4).", "38. Section 12 of the Criminal Procedure Law provides as follows:", "Section 12 - Human rights guarantees", "“ 1. Criminal proceedings shall be performed in compliance with internationally recognised human rights, without imposing unjustified criminal procedural obligations or disproportionate interferences with a person ’ s private life.", "2. Human rights shall be restricted only for public safety reasons and only in accordance with the procedure specified by this Law, regard being had to the nature and danger of the criminal offence.", "3. The application of security measures depriving people of their liberty, and the infringement of the inviolability of private premises, or of the confidentiality of correspondence and means of communication, shall be allowed only with the consent of an investigating judge or court.", "4. Officials involved in the conduct of criminal proceedings shall protect the confidentiality of private life and of commercial activities. The relevant information shall be obtained and used only if such information is necessary to establish the truth.", "5. An individual shall have the right to request the exclusion from the criminal case of information concerning ... his or her private life ... if such information is not necessary for the fair resolution of the criminal proceedings .”", "39. On 13 May 2010 the Latvian Parliament ( Saeima ) adopted legislative amendments to the effect that all public institutions were to make available on the internet information about the salaries paid to their officials. These amendments took effect on 15 June 2010." ]

[ "II. RELEVANT INTERNATIONAL AND DOMESTIC LAW", "A. International and European law", "31. Several international instruments concern the protection of journalistic sources, including the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4 th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the European Parliament ’ s Resolution on the Confidentiality of Journalists ’ Sources (18 January 1994, Official Journal of the European Communities No. C 44/34).", "32. Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000 and states, in so far as relevant:", "“[The Committee of Ministers] Recommends to the governments of member States:", "1. to implement in their domestic law and practice the principles appended to this recommendation,", "2. to disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and", "3. to bring them in particular to the attention of public authorities, police authorities and the judiciary as well as to make them available to journalists, the media and their professional organisations.", "Appendix to Recommendation No. R (2000) 7", "Principles concerning the right of journalists not to disclose their sources of information", "Definitions", "For the purposes of this Recommendation:", "a. the term ‘ journalist ’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;", "b. the term ‘ information ’ means any statement of fact, opinion or idea in the form of text, sound and/or picture;", "c. the term ‘ source ’ means any person who provides information to a journalist;", "d. the term ‘ information identifying a source ’ means, as far as this is likely to lead to the identification of a source:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "40. The applicant complained that she had been compelled to disclose information that had enabled a journalistic source to be identified, in violation of her right to receive and impart information as guaranteed by Article 10 of the Convention. In her submission, the interference with her freedom of expression was not prescribed by law, did not pursue a legitimate aim and was not necessary in a democratic society. The applicant further asked the Court to clarify the duties of the State under this provision in these circumstances. Article 10 of the Convention reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "41. The Government denied that there had been a violation of that Article.", "A. Admissibility", "42. Firstly, the Government raised a preliminary objection that the applicant had not supplied the Court with any copies of her complaints lodged with the domestic authorities, and had thus failed to demonstrate that the issues complained of before the Court had been raised at least in substance at the national level. They considered that she had thereby failed to comply with Article 34 of the Convention and had not lodged her application properly, in conformity with the requirements of Rule 47 of the Rules of Court.", "43. The applicant disagreed and insisted that her application, together with the enclosed documents, had complied with Article 34 of the Convention and Rule 47 of the Rules of Court. She had submitted the relevant available documents which, according to her, were the search warrant and the final decision dismissing her complaints. The latter document as well as the Ombudsman ’ s opinion contained a sufficient summary of her complaints at the national level.", "44. The Court reiterates that it examines the applications lodged before it within the meaning of Article 34 of the Convention and Rule 47 of the Rules of Court according to their content and their meaning. It further notes that together with her application form the applicant provided evidence that she had approached the domestic authorities and that she had received the final domestic decision of 14 June 2010, which, together with other relevant documents, set out the scope of her complaints at the domestic level. The Court would also add that Rule 47 of the Rules of Court specifically instructs the applicants to submit only “relevant documents” (in the French text – “ documents pertinents ”).", "45. In such circumstances the Court considers that the application form and the evidence submitted by the applicant contained sufficient information for those documents to be considered “an application” within the meaning of Article 34 of the Convention and Rule 47 of the Rules of Court. It follows that the Government ’ s objection in this regard should be dismissed.", "46. Secondly, the Government raised a preliminary objection concerning the exhaustion of domestic remedies, relying on the Court ’ s decision in Grišankova and Grišankovs v. Latvia (no. 36117/02, ECHR ‑ 2003 II (extracts)). They considered that the applicant should have lodged a complaint with the Constitutional Court if she considered that the procedure under section 180 of the Criminal Procedure Law as applied to her lacked sufficient procedural guarantees, or that the failure to provide additional statutory safeguards in respect of journalists regarding non-disclosure privilege (sections 121 and 122 of the Criminal Procedure Law ) had interfered with her human rights. She should have raised the issue of compliance of these legal provisions with the Latvian Constitution and the Convention itself.", "47. The applicant disagreed and submitted that the Latvian model of a constitutional complaint was subject to several limitations, relying, inter alia, on the Court ’ s decision in Liepājnieks v. Latvia (no. 37586/06, 2 November 2010).", "48. The Court reiterates that it has already on several occasions dismissed a similar preliminary objection by the Latvian Government as concerns the Constitutional Court in cases that relate to the interpretation or application of a legal provision, or an alleged legislative gap (see Liepājnieks, cited above, §§ 73-76; Savičs v. Latvia, no. 17892/03, §§ 113 ‑ 117, 27 November 2012; and Mihailovs v. Latvia, no. 35939/10, §§ 157-158, 22 January 2013). The Court sees no reason to decide otherwise in the present case. It follows that the Government ’ s objection in this regard should be rejected.", "49. Finally, the Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "50. First of all, the applicant in substance maintained that there had been an interference with her freedom of expression. She pointed out that searches of journalists ’ homes and workplaces undermined the protection of sources to an even greater extent than direct orders to disclose a source.", "51. The applicant did not deny that there had been a statutory basis for the interference under section 180 of the Criminal Procedure Law. She denounced the quality of the law and argued that the law should be both sufficiently accessible and foreseeable, that is, formulated with sufficient precision to enable an individual – if need be with appropriate advice – to regulate his conduct. She noted that Latvian law did not set any limits as to the grounds for conducting a search of a journalist or the methods used. The applicant referred in this regard to the Court ’ s case-law under Article 10 of the Convention and to Recommendation No. R (2000) 7 of the Committee of Ministers of the Council of Europe on the right of journalists not to disclose their sources of information (see paragraphs 32 and 33 above ).", "52. The applicant further specified that she did not claim that absolute immunity from criminal proceedings should be granted to journalists or that the existing regulation in Latvia was unconstitutional. She argued that the law in its substantive sense and the actions taken by officials had to be foreseeable.", "53. According to the applicant, the Latvian legal system did not provide her with adequate legal safeguards to allow an independent assessment of whether the interests of the criminal investigation overrode the public interest in the protection of journalistic sources. In the applicant ’ s case the search warrant did not contain any exceptions or limitations on the search or the documents to be seized that might safeguard her right not to disclose her sources or any information leading to them. The applicant did not contest that a judicial review as such was possible. She was rather of the opinion that it had not been possible for the investigating judge to make a proper assessment as there were no clear criteria or guidance in the domestic law as regards searches of journalists, save for cases when a court order under section 154 of the Criminal Procedure Law was issued, which was not the case here.", "54. She insisted that the quality of Latvian law was deficient in terms of the lack of foreseeability as there were no criteria in the law or any other regulations to prevent officials from erroneously applying or interpreting the law and from interfering with journalists ’ right not to disclose information directly or indirectly related to their sources. The applicant argued that her case had not been an isolated incident, and referred to a search of another journalist on 15 December 2011 as an example.", "55. Secondly, the applicant argued that there had been no legitimate aim for the interference with her freedom of expression. In the applicant ’ s view, the aim of the search had been to identify her source and to obtain information or substantiate what the authorities already knew about I.P. This could not possibly be considered as a legitimate aim.", "56. The applicant also disagreed with the Government that the interference had pursued the legitimate aim of prevention of crime and protection of the rights of others. She emphasised that the information she had reported on served a legitimate public interest and contributed to the public debate on solidarity regarding the implementation of austerity measures. No personal information that did not serve that purpose had been revealed and no claims had been lodged in that regard by the individuals concerned. Therefore, there had been no reason to consider that any further disclosure of data by the applicant would be in breach of any Article 8 rights. After all, if the aim had been to prevent further disclosure of personal data, why had the police, having copied all the files, returned the data storage devices to the applicant without deleting any files or information contained therein?", "57. If, however, the aim of the search had been to prevent the applicant from further disseminating information of legitimate public interest, under no circumstances, she argued, could that be considered a legitimate aim. Similarly, the securing of evidence for the purposes of detecting and prosecuting a crime could not possibly override the rights and interests in the protection of journalistic sources.", "58. Thirdly, the applicant submitted that the interference had not been necessary in a democratic society as it did not correspond to any pressing social need. The applicant argued that a fair balance should have been struck in the present case between the general public interest in the protection of journalistic sources and the interests of the investigation. The criminal investigation had related to alleged arbitrary access to the EDS database. It had never been disputed that poor security had made the access possible. If any crime had been committed at all, it was a minor one. It was not among the crimes listed in the above-cited Recommendation as serious enough to justify the interference with the applicant ’ s rights. Accordingly, the particular interests of the investigation were not sufficiently vital and serious to prevail over the general public interest of source protection.", "59. In response to the Government ’ s argument that the search had not been carried out with a view to establishing the identity of the applicant ’ s source, the applicant noted that she had no way of knowing what information had been at the disposal of the authorities before the search and seizure were authorised and conducted. According to the information provided by her source, “Neo” was the head of a group of people who claimed to have discovered a means of downloading information from the EDS database without cracking any passwords, thereby revealing gaps in the VID ’ s security system. The applicant had publicly announced during the 14 February 2010 broadcast that “Neo” claimed to be leading a group who called themselves “4ATA” and whose aim, among other things, was to strive for a better future for Latvia by making sure that public officials responsible for negligence and corruption were held to account. The search warrant had also authorised the search for information concerning other members of that group.", "60. The applicant further argued that the information contained in her data storage devices, to which the Government referred as evidence, was covered by the journalist ’ s right to protect his sources. She referred to principle 6 of the Recommendation and the terms used therein. In her view the wording “information about the obtaining and distribution of the files” used in the search warrant clearly demonstrated that the purpose was to identify the source of information or at least to verify it. The Government ’ s reference to a reasonable suspicion concerning the applicant ’ s connection with the criminal offence showed a dangerous understanding and approach by the State authorities. She referred to the Court ’ s case-law and emphasised that the right not to disclose journalistic sources was not a mere privilege which could be granted or taken away depending on the lawfulness or unlawfulness of their sources (see Tillack v. Belgium, no. 20477/05, § 65, 27 November 2007).", "61. The applicant submitted that as soon as she received information from her source, she had informed the SRS about the possible security breach and about the need to prevent further data leaks. She had also verified the accuracy of the information. When there was no doubt that the leak had taken place and that the information was true, the applicant – acting in her capacity as a journalist and in good faith – had announced information that was of legitimate public interest. She insisted that the mere fact that a journalist had been in contact with the source or any other suspect could not be enough to allege that he or she might be connected with the criminal offence and deserved to be searched. Furthermore, the Government had not demonstrated that there had been any grounds to assume – in order to justify the search under the urgent procedure – that information or documents possessed by the applicant would be altered or destroyed. The applicant had not demonstrated any negative attitude towards the investigation other than exercising her right of non-disclosure.", "(b) The Government", "62. The Government did not deny that there had been interference. They believed, however, that the interference at issue was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.", "63. Firstly, they submitted that the search had a legal basis in national law. They relied on section 180, paragraph 3 of the Criminal Procedure Law and contended that the domestic procedural requirements for conducting the search had been duly complied with.", "64. As concerns the quality of law, the Government agreed with the applicant that there were no specific procedures to be followed for searches of journalists ’ premises. The Government, however, had serious doubts as to whether any statutory regulation of the sort was in place in the rest, or at least in the majority, of the Council of Europe Member States. In any event, they contended that the procedure envisaged by section 180 of the Criminal Procedure Law provided the applicant with adequate legal safeguards to allow an independent assessment of whether the interests of the criminal investigation overrode the public interest in the protection of journalistic sources.", "65. The Government referred to section 180, paragraph 1 of the Criminal Procedure Law and noted that in Latvia, as a rule, only an investigative judge or court could authorise a search, upon an application by the competent investigating authority. Under this general procedure any search, including those carried out on journalists, was subjected to prior judicial review in keeping with the principles enshrined in section 12 of the Criminal Procedure Law.", "66. At the same time, they also noted that section 180, paragraph 3, provided for an exception from the general rule in the event of particular urgency, which was sufficiently precisely defined in their view. The Government further explained that under both procedures the investigating judge and the supervising prosecutor were presented with the criminal case file in its entirety, and that they were obliged to have due regard to all the circumstances of the case, and had to consider the impact of the search on the individual ’ s human rights, including freedom of speech, in the light of the criteria set out in section 12 of the Criminal Procedure Law. The Government argued that for the purposes of the urgent procedure, the supervising prosecutor exercised his judicial functions and was an independent and impartial decision-making body.", "67. The Government believed that the system in place in Latvia was in no way unusual. In their opinion it was doubtful that in all the Council of Europe Member States prior judicial review was ensured in all cases, without any exceptions in relation to searches carried out on journalists. In any event, where a search was authorised by the supervising prosecutor, there was a statutory requirement for immediate a posteriori judicial review by the investigating judge (see paragraph 36 above). Thus, the legislator had provided for two -tier scrutiny in cases where searches were performed under the urgent procedure.", "68. The Government also pointed out that the investigating judge had sufficiently wide, binding and enforceable authority to revoke the search warrant. As indicated by the the President of the court in her decision of l4 June 2010, the investigating judge had the power and the obligation to assess the scope of the information seized as a result of the search, namely, whether the information seized could possibly be related to the applicant ’ s professional activities. Thus, there existed a procedure for identifying and withholding from disclosure information that could lead to the identification of journalistic sources other than that which had value as evidence for the purposes of the pending criminal proceedings.", "69. In the light of the above considerations, the Government considered the circumstances of the present case to be fundamentally different from those of Sanoma Uitgevers B.V. v. the Netherlands [GC] ( no. 38224/03, 14 September 2010 ), as a statutory obligation of a posteriori judicial review was in place.", "70. Secondly, the Government submitted that the interference at issue had pursued the legitimate aim of preventing crime – that concept encompassing the securing of evidence for the purposes of detecting and prosecuting crime – and protecting the rights of others, by preventing the further disclosure of personal data.", "71. Thirdly, the Government insisted that the interference had been “necessary in a democratic society”. In this regard they referred to the general principles reiterated by the Court ( in Kasabova v. Bulgaria, no. 22385/03, § 54, 19 April 2011, and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 85-86, 7 February 2012). The Government also referred to the margin of appreciation accorded to the States in striking the appropriate balance. The balancing exercise in the present case involved the applicant ’ s right to freedom of expression against the right of hundreds of thousands of individuals in Latvia to the protection of their personal data.", "72. The Government affirmed that the aim of the search had not been to reveal journalistic sources, and argued that the present case should be distinguished from such cases as Goodwin v. the United Kingdom (27 March 1996, Reports of Judgments and Decisions 1996 ‑ II), Roemen and Schmit v. Luxembourg (no. 51772/99, ECHR 2003 ‑ IV), Voskuil v. the Netherlands (no. 64752/01, 22 November 2007) and Tillack (cited above). The Government pointed out that at the time of the search at the applicant ’ s home the police had already discovered Neo ’ s identity and had known by which means the data had been obtained. I.P. had been subjected to searches and had been apprehended by the police prior to the search at the applicant ’ s home. Nor was the search aimed at identifying or disclosing other sources of information. It was the Government ’ s view that the search warrant had demonstrated that its aim was both to find and seize XML files or their derivatives downloaded from the EDS database, software for processing these files, information concerning the acquisition of the files, as well as other objects containing information about the criminal offence under investigation, and to prevent further dissemination of the personal data of hundreds of thousands of people. The Government insisted that regard should be had to the nature of the offence under criminal investigation and the value which the objects of the search might have had for the investigation.", "73. At the material time the state authorities had been faced with the task of classifying the crime allegedly committed by I.P., including establishing any aggravating or mitigating circumstances : they had to establish whether it had been intentional or accidental, whether there had been plans to hand the data over to any third persons, and whether I.P. had acted alone or with accomplices. The Government also argued that they had to establish the applicant ’ s role – whether she had reported on the data in her capacity as a journalist, that is whether it “served legitimate journalistic purposes”, or she was the organiser, or an abettor or accomplice to the offence.", "74. According to the Government, prior to accepting the search warrant issued by the police investigator, the supervising prosecutor had duly acquainted herself with the criminal case file materials. It was her informed opinion that the authority responsible for the criminal proceedings had reasonable suspicion that the applicant ’ s home might contain important information that might serve as evidence for the purposes of the criminal proceedings. The applicant had accordingly been requested to hand over the data storage devices that might serve as evidence in the criminal proceedings.", "75. The Government also pointed out that at the initial stage of the criminal proceedings the competent investigating authority could have resorted to the procedure under section 154 of the Criminal Procedure Law and sought a disclosure order from a court. However, they chose not to do this and other investigative activities followed and the alleged perpetrator was identified by other means. The Government wished to emphasise that the domestic authorities deliberately chose to pursue a more time ‑ consuming course of investigation, thus clearly demonstrating their respect for freedom of expression and the rights of journalists not to disclose their sources. The Government held the view that the competent authorities had properly balanced the conflicting interests of the protection of journalistic privilege against those of the criminal investigation.", "76. Furthermore, when the urgent search was authorised the police had established that I.P. ’ s telephone conversations with the applicant corresponded to the dates when the XML files from the EDS database had been downloaded. Thus the police had reasonable suspicion that the applicant might be connected with the criminal offence and that she possessed the downloaded files or other evidence.", "77. Finally, the Government argued that no alternative means of search and seizure had been available and that the domestic authorities had feared the destruction, concealment or damaging of evidence after I.P. ’ s arrest. The urgent procedure had therefore been necessary. Nor could any other means have been employed than the seizure of the applicant ’ s data storage devices, which the Government considered had been sufficiently precisely defined in the search warrant. Referring to the technical examination that followed the search at the applicant ’ s home, the Government affirmed that only the expert had had access to the seized devices and that the information had been deleted once the examination was completed.", "2. The Court ’ s assessment", "78. The Court will start by addressing the Government ’ s argument that the search had not been carried out with a view to establishing the identity of the applicant ’ s source of information but rather to gather evidence in the criminal proceedings against I.P., whose identity had already been established at that point in the investigation. The Court considers that the issue to be determined in the present case is whether the search at the applicant ’ s home, who was a well-known journalist at the material time, in view of obtaining information in such circumstances falls within the scope of Article 10 of the Convention.", "79. The Court observes that the parties agree that I.P. was arrested on the same day, one and a half hours before the search at the applicant ’ s home, in connection with the criminal proceedings concerning the data leak. The Court does not have any reason to doubt that the domestic authorities had a reasonable suspicion that I.P. had some connection with the data leak at the time of the search at the applicant ’ s home. However, the fact remains that the investigating authorities searched the home of the applicant journalist on the basis of a wide-reaching search warrant. The Court considers that the circumstances invoked by the Government cannot exclude the applicability of Article 10 of the Convention in the present case.", "80. The Court has already found that Article 10 of the Convention does not only protect anonymous sources assisting the press to inform the public about matters of public interest (see Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005 ‑ XIII). In that case the Court considered that Article 10 of the Convention applied even when a journalist had worked undercover and had used a hidden camera to film participants in a television programme, who could thus not be regarded as “sources of journalistic information in the traditional sense”. It was rather the compulsory handover of his research material that was susceptible of having a chilling effect on the exercise of journalistic freedom of expression. In that case, the identity of the journalistic sources in the traditional sense was adequately protected, and the handing over of the research material in relation to an alleged perpetrator, whose actions were under criminal investigation and whose identity was known to the police, was not deemed disproportionate to the legitimate aim pursued and the reasons given by the national authorities were considered to be relevant and sufficient.", "81. The Court ’ s understanding of the concept of journalistic “source” is “any person who provides information to a journalist”; it understands “information identifying a source” to include, as far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Recommendation No. R (2000) 7 and its explanatory notes, quoted in paragraphs 32 and 33 above).", "82. The Court notes that the Government admitted that the search at the applicant ’ s home had been aimed at gathering “information about the criminal offence under investigation” and that it authorised not only the seizure of the files themselves but also the seizure of “information concerning the acquisition of these files”. While recognising the importance of securing evidence in criminal proceedings, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 70, 15 December 2009). In the present case, irrespective of whether the identity of the applicant ’ s source was discovered during the search, as found by the Ombudsman, or at the very least confirmed during that search, as submitted by the applicant, it nevertheless remains that the seized data storage devices contained not only information capable of identifying her source of information, pertaining either to “the factual circumstances of acquiring information” from her source or to “the unpublished content” of that information, but also information capable of identifying her other sources of information. It does not need to be further demonstrated that the search yielded any results or indeed proved otherwise productive (see Roemen and Schmit, cited above, § 57, and Ernst and Others v. Belgium, no. 33400/96, § 103, 15 July 2003 ). The Court therefore does not accept the Government ’ s argument that the search did not relate to journalistic sources.", "83. Accordingly, the Court concludes that the search at the applicant ’ s home and the information capable of being discovered therefrom comes within the sphere of the protection under Article 10 of the Convention.", "(a) Interference", "84. The parties agree that there has been an “interference” with the applicant ’ s freedom to receive and impart information. The Court sees no reason to hold otherwise.", "(b) Prescribed by law", "85. The Court refers to the applicable principles under Article 10 of the Convention (see Sanoma Uitgevers, cited above, §§ 81-83).", "86. The Court notes that the parties agree that the search at the applicant ’ s home had a statutory basis, namely, section 180, paragraph 3 of the Criminal Procedure Law. The applicant, relying to a large extent on the Grand Chamber judgment in the above-cited Sanoma Uitgevers case, argued that the law in Latvia concerning urgent searches in relation to journalists lacked foreseeability. The Government, however, drew a distinction between the two cases on the facts, because in the present case the law had provided for the investigating judge ’ s involvement.", "87. The Court reiterates that the above-cited Sanoma Uitgevers case concerned the quality of Dutch law and the lack of adequate legal safeguards to enable an independent assessment of whether the interests of the criminal investigation overrode the public interest in the protection of journalistic sources. The situation in Latvia in this respect, as noted by the Government, is quite different. Indeed, in accordance with the ordinary procedure under section 180 of the Criminal Procedure Law, the investigating judge weighs the potential risks and respective interests prior to authorising a search. Also, under section 154 of the same Law the investigating judge makes this assessment prior to issuing a disclosure order. Therefore, it appears that in principle there are procedural safeguards in place in Latvia by virtue of prior judicial scrutiny by the investigating judge for searches under the ordinary procedure and for disclosure orders.", "88. The Court notes, however, that the present applicant alleged the lack of adequate legal safeguards for searches under the urgent procedure, which was applied to her on the basis of section 180, paragraph 3 of the Criminal Procedure Law. The Court has already acknowledged that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent orders or requests. In such situations an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether in the particular circumstances of the case the public interest invoked by the investigating or prosecuting authorities outweighs the general public interest of source protection (see Sanoma Uitgevers, cited above, § 91).", "89. The Court observes that under Latvian law the investigating judge examines “the lawfulness of and the grounds for the search” carried out under the urgent procedure on the day following the search. It cannot therefore be said that there are no safeguards that render the relevant legal provision foreseeable as such. Although it appears that the investigating judge ’ s approval of the search warrant was not made in a separate decision in the present case, but rather was limited to an “ approval ” written on the search warrant itself, the reasons for that decision were explained in writing by the President of the court upon examining the applicant ’ s complaint against the decision.", "90. The Court notes that unlike in the Sanoma Uitgevers case, the investigating judge has the authority under Latvian law to revoke the search warrant and to declare such evidence inadmissible (see paragraph 36 above). Moreover, according to the information submitted by the Government, which the applicant did not dispute, the investigating judge also has the power to withhold the disclosure of the identity of journalistic sources ( ibid. ). The Court considers that the last two elements pertaining to the investigating judge ’ s involvement in an immediate post factum review are sufficient to differentiate this case from the above-mentioned Sanoma Uitgevers case (see also Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 120, 2 2 November 2012, where a similar distinction was made). The Court, therefore, does not deem it necessary to examine the Government ’ s submissions concerning the role of the supervising prosecutor in authorising searches under the urgent procedure.", "91. In these circumstances the Court considers that the interference complained of was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "(c) Legitimate aim", "92. The parties disputed this element, but the Court could accept that the interference was intended to prevent disorder or crime and to protect the rights of others, both of which are legitimate aims.", "(d) Necessary in a democratic society", "93. The Court refers to the applicable principles under Article 10 of the Convention (see Financial Times Ltd and Others, cited above, §§ 59 ‑ 63, and, more recently, Telegraaf Media Nederland Landelijke Media B.V. and Others, cited above, §§ 123-126). In exercising its supervisory function, the Court ’ s task is not to take the place of the national authorities, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied upon (see Axel Springer AG v. Germany [GC], no. 39954/08, § 86, 7 February 2012 ).", "94. The Court must accordingly examine the reasons given by the authorities for the applicant ’ s search, together with the scope of the search warrant, in order to ascertain whether those reasons were “relevant” and “sufficient” and thus whether, having regard to the margin of appreciation afforded to the national authorities, the interference was proportionate to the legitimate aims pursued and whether it corresponded to a “pressing social need”.", "95. The Court notes, at the outset, that there is a fundamental difference between this case and other cases, where disclosure orders have been served on journalists requiring them to reveal the identity of their sources (see the above-cited cases of Goodwin, Voskuil, Financial Times Ltd and Others and Telegraaf Media Nederland Landelijke Media B.V. and Others ). The distinguishing feature lies not, as the Government suggested, in the fact that I.P. ’ s identity had been known to the investigating authorities prior to the applicant ’ s search, which fact does not remove the applicant ’ s protection under Article 10 of the Convention (see paragraphs 78 - 83 above). The Court has already held that a search conducted with a view to identifying a journalist ’ s source is a more drastic measure than an order to divulge the source ’ s identity (see the above-cited cases Roemen and Schmit, § 57, and Ernst and Others, § 103). The Court considers that it is even more so in the circumstances of the present case, where the search warrant was drafted in such vague terms as to allow the seizure of “any information” pertaining to the crime under investigation allegedly committed by the journalist ’ s source, irrespective of whether or not his identity had already been known to the investigating authorities. As the Court has already noted in Roemen and Schmit and Ernst and Others, investigators who raid a journalist ’ s workplace or home unannounced and are armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. The Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.", "96. As to the reasons for the search of 11 May 2010, the Court notes that according to the search warrant, issued by the investigator under the urgent procedure, the factual basis for the search was the applicant ’ s communication with I.P., by phone and possibly in person, on several occasions prior to the broadcast of 14 February 2010. The Government have submitted to the Court that the investigating authorities were faced with the task of classifying the crime allegedly committed by I.P. and establishing the applicant ’ s role. The Court, however, does not consider that the reasons given by the domestic authorities are “relevant” and “sufficient” in the circumstances of the present case or correspond to a “pressing social need”.", "97. The Court notes that the subject-matter on which the applicant reported and in connection with which her home was searched made a twofold contribution to a public debate. It was primarily aimed at keeping the public informed about the salaries paid in the public sector at a time of economic crisis, when a variety of austerity measures had been introduced. It is not insignificant that, around the same time, legislative amendments were being drafted to make information concerning salaries in public institutions available to the general public (see paragraph 39 above). In addition, the applicant ’ s broadcast also exposed security flaws in the database of the State Revenue Service, which had been discovered by her source. Admittedly, the actions of her source are subject to a pending criminal investigation. The applicant herself, however, for the purposes of this investigation was questioned as a witness; it appears that her procedural status remained unaltered throughout this investigation. The Court emphasises that the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution (see Tillack, cited above, § 65). Given the multiple interests in issue, the Court emphasises that the conduct of the source will merely operate as one factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2 of the Convention (see Financial Times Ltd and Others, cited above, § 63).", "98. The Court observes that the broadcast during which the applicant informed the public about the data leak from the EDS was aired on 14 February 2010, that is, nearly three months before the search at the applicant ’ s home. According to the investigator, since that date there had been no further communication between the applicant and her source. In this respect, the Court notes that when the investigating authorities, almost three months after the broadcast and after the applicant had agreed to testify, decided that a search at her home was necessary, they proceeded under the urgent procedure without any judicial authority having properly examined the relationship of proportionality between the public interest of investigation, on the one hand, and the protection of the journalist ’ s freedom of expression, on the other hand.", "99. The Court will now turn to the reasons advanced for the search under the urgent procedure. According to national law, such search could be envisaged only if the delay could allow the relevant documents or objects to be destroyed, hidden or damaged or the person to abscond (see paragraph 36 above). In the case at hand, the reasons spelled out in the search warrant for the urgency was “ to prevent the destruction, concealment or damaging of evidence” without further explanation or reference to particular facts or any other indication. It is not clear from the case materials on what grounds the above-mentioned assertion was made and in what context. The Government insisted that the applicant ’ s role had not been clear at the time of the search. However, it has not been suggested that during the preliminary investigation any information was acquired linking the applicant to I.P. in any other way than in her capacity as a journalist; her status as a witness in the criminal proceedings only further evidences that. On the contrary, it was noted in the search warrant itself that the applicant ’ s last communication with I.P. had been on the day of the broadcast. In these circumstances only weighty reasons could have justified the urgency of the applicant ’ s search.", "100. The Court has already noted above that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent searches; in such circumstances the necessary assessment of the conflicting interests could be carried out a later stage, but in any event at the very least prior to the access and use of the obtained materials (see paragraph 88 above). In Latvia, according to the Government, the assessment is carried out by the investigating judge on the next day following an urgent search. In the present case, however, no further reasons were given either by the investigating judge or by the President of the court who subsequently examined the applicant ’ s complaint against the decision of the investigating judge. Both judges limited themselves to finding that the search did not relate to the journalist ’ s sources at all, so they did not proceed to examine the conflicting interests. For the reasons explained above (see paragraphs 78 - 83 ) the Court cannot subscribe to such a finding.", "101. The Court considers that any search involving the seizure of data storage devices such as laptops, external hard drives, memory cards and flash drives belonging to a journalist raises a question of the journalist ’ s freedom of expression including source protection and that the access to the information contained therein must be protected by sufficient and adequate safeguards against abuse. In the present case, although the investigating judge ’ s involvement in an immediate post factum review was provided for in the law, the Court finds that the investigating judge failed to establish that the interests of the investigation in securing evidence were sufficient to override the public interest in the protection of the journalist ’ s freedom of expression, including source protection and protection against the handover of the research material. The scarce reasoning of the President of the court as to the perishable nature of evidence linked to cybercrimes in general, as the Ombudsman rightly concluded, cannot be considered sufficient in the present case, given the investigating authorities ’ delay in carrying out the search and the lack of any indication of impending destruction of evidence. Nor was there any suggestion that the applicant was responsible for disseminating personal data or was implicated in the events other than in her capacity as a journalist; she remained “a witness” for the purposes of these criminal proceedings. If the case materials did include any indication in that regard, it was the investigating judge ’ s responsibility to carry out the necessary assessment of the conflicting interests, which was not done.", "102. The foregoing considerations are sufficient to enable the Court to conclude that “relevant and sufficient” reasons for the interference complained of were not given. There has therefore been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "103. The applicant also complained that the search constituted unjustified interference with her right to respect for her home and private life, as protected by Article 8 of the Convention. She noted that her laptop, which had been seized, contained private information which she did not consider was necessary for the purposes of the investigation. She objected, in that regard, to the wide scope of the search warrant.", "104. The Court notes that the applicant has failed to mention, even in a summary fashion, the type of information stored in her personal laptop or other data storage devices and the extent of the alleged interference with her private life. In so far as the applicant ’ s right to respect for her home is concerned, the Court has already examined the factual circumstances surrounding that search under Article 10 of the Convention. It does not consider it necessary to examine the admissibility and merits of this complaint separately under Article 8 of the Convention in the circumstances of the present case (compare and contrast with the above-cited case of Telegraaf Media Nederland Landelijke Media B.V. and Others, where two journalists were subject to surveillance measures, such as interception and recording of their telecommunications, which necessitated concurrent examination under Articles 8 and 10 of the Convention; in the same case the order to surrender documents was examined solely under Article 10 of the Convention; compare and contrast also with the above-cited case of Ernst and Others, where four journalists ’ homes were searched in what was a much wider operation ).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "105. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "106. The applicant claimed 50,000 euros (EUR) in respect of non ‑ pecuniary damage she allegedly suffered. She submitted that the search had been a traumatic experience and had damaged her reputation in the eyes of existing and potential sources of information.", "107. The Government contested this claim.", "108. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 10,000 in respect of non ‑ pecuniary damage.", "B. Costs and expenses", "109. The applicant also claimed 12,679.53 Latvian lati (approximately EUR 18,114 ) for the costs and expenses incurred before the domestic courts and before the Court excluding VAT. This claim was supported by time sheets.", "110. The Government considered these claims unfounded. They submitted that some of the costs incurred in the domestic proceedings were not related to the violation of Article 10 of the Convention (in connection with the Ombudsman ’ s review and other discussions between the applicant and her lawyer). They also considered that the applicant had not adduced adequate details of the breakdown of the work carried out in relation to the domestic and Strasbourg proceedings. Lastly, the Government argued that the amount claimed for legal services was unreasonably high.", "111. According to the Court ’ s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, among many other authorities, Sanoma Uitgevers B.V. , cited above, § 109). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 10 ,000 covering costs under all heads.", "C. Default interest", "112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1987 and lives in Kyiv. She was represented by Mr S. Zayets and Ms L. Pankratova, lawyers practising in Irpin and Kyiv respectively.", "3. The Government were represented by their Agent, Mr I. Lishchyna.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The circumstances of the caseBackground of the case", "Background of the case", "Background of the case", "5. The applicant is a journalist at the Kyiv office of Radio Free Europe/Radio Liberty. She is also the editor-in-chief of the “Schemes: Corruption in Detail” television programme. The programme has been running since 2014 and many of its issues concern senior prosecutors and politicians.", "6. In 2015 the National Anticorruption Bureau of Ukraine (“the NABU”) instituted criminal proceedings against a prosecutor, K., on suspicion of unjust enrichment. In the framework of those proceedings, in the period between May and July 2016, the NABU tapped the telephone of Ms N., K. ’ s partner.", "7. In 2017 K. started working at the Prosecutor General ’ s Office (“the PGO”).", "8. On 13 November 2017 the Obozrevatel media website published an article stating that in the summer of 2017 the head of the NABU, S., had held a closed meeting with some media representatives during which he had disclosed confidential information about some ongoing criminal investigations, including the one against K. It was apparent from this article that, among other things, the media representatives had listened to a recording of a taped telephone conversation between Ms N. and her acquaintance, in which the two of them were discussing details of Ms N. ’ s private life. The Obozrevatel article was accompanied by an audio file presented as the audio recording of that meeting, including the recording of Ms N. ’ s telephone conversation with her acquaintance.", "9. The same day M., a Member of Parliament, complained to the Prosecutor General that the above article was unlawful and had indicated that S. had also breached the rules of confidentiality pertaining to ongoing criminal proceedings, as well as Ms N. ’ s right to respect for her private life in divulging information about her to the journalists.", "10. On 15 November 2017 Ms N. also complained to the PGO about the same matter, asking that criminal proceedings be instituted against S. and his colleagues for breaching her privacy and making public the material of the ongoing criminal investigations.", "Criminal investigation of alleged misconduct by S.", "11. On 16 November 2017 the PGO instituted criminal proceedings against S. under Articles 163, 182, 328 and 387 of the Criminal Code for violation of privacy and disclosure of confidential information concerning ongoing criminal investigations.", "12. On 22 November 2017 the PGO requested that the Security Service of Ukraine (“the SSU”) conduct a voice recognition analysis of those present at the purported meeting with S. using the audio recording featured in the article on the Obozrevatel media website.", "13. On 4 December 2017 the SSU informed the PGO of the results of the voice recognition analysis. It was mentioned that the voices on the recording were likely to belong to S., his deputy U. and two journalists, B. and the applicant. There were also several other voices which could not be identified.", "14. On 19 December 2017 the applicant was summoned to the PGO for questioning. She informed the investigator, I. (“the investigator”) that, as a journalist, she communicated with many law-enforcement officials, including S. Information received from public events was used in her professional work. As to the information received confidentially, she claimed that, under Article 65 of the Code of Criminal Procedure, she could not be interviewed as a witness if it would lead to the identification of her journalistic sources. For the same reason, she refused to answer questions related to the alleged meeting with S. and to either confirm or deny her own presence at that meeting.", "PGO ’ s request for access to the applicant ’ s communications data and ensuing events", "15. On 27 August 2018 a PGO investigator submitted a request to the Pecherskyy District Court in Kyiv (“the District Court”) for access to the applicant ’ s communications data from 19 July 2016 (the date when the results of Ms N. ’ s phone tapping were formally documented) to 16 November 2017 (the date of institution of the criminal proceedings against S.) held by the mobile service provider JSC “ Kyivstar ”. The requested data included dates, times, call durations, telephone numbers, sent and received text messages (SMS, MMS), and the location of the applicant at the time of each call or message. The information was requested in order to establish the exact time and place of the meeting with S.", "16. The same day P., an investigating judge of the District Court (“the investigating judge”) examined the investigator ’ s request and issued an order authorising the collection of the data requested. It was noted in the order, in particular, that under Article 163 of the Code of Criminal Procedure (CCP) it was possible to examine the matter without the applicant being summoned, as there were “sufficient reasons to believe that there existed a real threat of the information sought being altered or destroyed”. The order stated that it was not subject to appeal and was valid for one month.", "17. On 1 September 2018 an article on the Court Reporter media website stated that the PGO had started checking telephone calls made by [unnamed] journalists who had supposedly been present at the purported meeting with S. The site referred to the order of the investigating judge of 27 August 2018, and contained a link to an anonymised version of that order in the Unified State Register of Court Decisions. The article was accompanied by individual pictures of S. and a number of journalists and human rights activists, including the applicant.", "18. On 4 September 2018 the PGO investigator wrote a letter to the mobile service provider JSC “ Kyivstar ” referring to the District Court ’ s order of 27 August 2018 and informing the addressee that data was only required about the dates, times and location of the mobile telephones of the applicant and one other person - apparently, B., - near the six specified streets and places in Kyiv. It was also indicated that this information should be provided without any other data being disclosed.", "19. On 7 September 2018 the applicant and her lawyer asked the District Court for a copy of the order of 27 August 2018. The request was refused on 10 September 2018.", "20. On 11 September 2018 the applicant, notwithstanding the fact that the order of 27 August 2018 indicated that it was not possible to lodge an appeal against it, challenged it before the Kyiv City Court of Appeal (“the Court of Appeal”) and requested its suspension.", "21. On 15 September 2018 the Prosecutor General was asked during a press conference about the data sought from the mobile telephones of the applicant and B. He stated that while the freedom of journalistic activity was of paramount importance, some interference with it was justified owing to the lack of alternative means of obtaining information about the date on which the meeting of S. with journalists had taken place. He stated that information was only required from one cell of the mobile network, namely that covering the NABU offices. Nevertheless, he argued that the period of sixteen months was justified. He also stated that he was in principle ready to show the reply from the mobile service provider to make it apparent that no data identifying any journalistic sources had been either claimed or received.", "22. On 18 September 2018 the Court of Appeal found it possible to accept the applicant ’ s appeal against the order of 27 August 2018 for consideration. It noted that court orders authorising “access to items and documents” under Article 163 of the CCP were, as a general rule, not amenable to appeal. However, Article 309 of the CCP envisaged an exception for cases, where such an order would entail seizure of items or documents, without which an individual entrepreneur or a legal entity would be unable to carry out their activity. Referring, in particular, to the importance of the journalistic sources for the applicant ’ s professional activity, the Court of Appeal decided that this exception could be applied in her case. The court further noted, referring, in particular, to Article 8 of the Convention and Section 17 of the State Support of Mass Media and Social Protection of Journalists Act, that the investigating judge of the District Court had not given proper reasons for the disputed order and had not complied with the requirements of domestic law, in violation of the applicant ’ s rights. The Court of Appeal considered, however, that the scope of the data requested in the investigator ’ s letter of 4 September 2018 was not excessive. It quashed the District Court ’ s order and made a new one authorising access to data about the dates and time of presence of the applicant ’ s mobile telephone on six specified streets and places in Kyiv during the period from 19 July 2016 to 16 November 2017. The relevant part of the order read as follows:", "“... as correctly noted by the appellant, and as the judicial panel agrees, the investigative judge issued the order for temporary access ... without due reason, failing to comply with legislative requirements, in breach of the [applicant ’ s] rights, as a journalist, protected by law.", "At the same time, as the prosecutor explained at the hearing, such measures were used with a view to achieving efficiency in the aforementioned criminal proceedings, in particular, in order to establish more exactly the time and place of the commission of an offence, ... since, being questioned as a witness, [the applicant] had refused to give a statement to the investigation in this regard.", "In addition, it can be seen from the letter of [the PGO investigator] of 4 September 2018 ... that the latter was only asking for permission to access data concerning dates and times and the location of the [applicant ’ s telephone] between 19 July 2016 and 16 November 2017 within the boundaries of the base stations of the operator located in Kyiv on the [following] streets: Surikova [Street], Bogdanivska [Street], Shovkunenka [Street], ... Lypkivskogo [Street], Khomova Lane, Povitroflotskiy Avenue, Solomyanska Square and the [area covered by these stations].", "The judicial panel considers that allowing the aforementioned request by the investigator in this particular aspect shall correspond to the task of the criminal investigation to ensure a prompt, comprehensive and unbiased inquiry and will sufficiently safeguard the protected rights and lawful interests of the [applicant] as a journalist.”", "23. On 20 September 2018 the applicant and her lawyer asked the mobile service provider JSC “ Kyivstar ” and the PGO whether the investigation had had access to the applicant ’ s mobile telephone data in accordance with the orders of 27 August and 18 September 2018. Fifteen NGOs and the media made a “flash mob” requesting the same information from the PGO. All these requests were refused on the basis of the confidentiality of the ongoing investigation.", "Procedure before the Court", "24. On 10 September 2018 the applicant asked the Court for the indication of an interim measure under Rule 39 of the Rules of the Court.", "25. On 18 September 2018 the Court indicated to the Government under Rule 39 of the Rules of the Court that, in the interests of the parties and the proper conduct of the proceedings, they should ensure that the public authorities abstain from accessing any of the data specified in the order of 27 August 2018 concerning the applicant.", "26. On 27 September 2018, when interviewed during a visit to Parliament, the Prosecutor General stated that no data had been received from the mobile telephone operator, that they had complied with the decision of the Court [regarding the indicated interim measure] but that they would need the data to investigate a serious crime and would try to explain this to the Court.", "27. On 16 October 2018 the Court extended the aforementioned interim measure indicating to the Government of Ukraine to ensure that the public authorities abstain from accessing any data mentioned in the ruling of 18 September 2018 by the Kyiv City Court of Appeal concerning the applicant until further notice.", "28. On 12 February 2019 the PGO informed the Government ’ s Agent within the framework of the present proceedings that they had not carried out any of the actions authorised by the orders of 27 August and 18 September 2018 in the applicant ’ s case, taking into account the requirements imposed under Rule 39." ]

[ "RELEVANT LEGAL FRAMEWORK", "Relevant domestic lawConstitution of Ukraine", "Constitution of Ukraine", "Constitution of Ukraine", "29. Article 34 of the Constitution of Ukraine reads:", "“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.", "Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.", "The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”", "Criminal Code", "30. The relevant provisions of the Code concern the following offences:", "- Article 163: Violation of privacy of mail, telephone conversations, telegraphs and other correspondence conveyed by means of communication or via computers;", "- Article 182: Violation of personal privacy;", "- Article 328: Disclosure of State secrets;", "- Article 387: Disclosure of information on pre-trial investigation or inquiry.", "Code of Criminal Procedure (“the CCP”)", "31. The relevant provisions of the Code provide as follows:", "Article 65 – Witness", "“...", "2. The following persons may not be interviewed as witnesses:", "...", "(6) journalists, about confidential information of a professional nature provided on condition of non-disclosure of its author or source ...”", "Article 163 – Consideration of a request for provisional access to items and documents", "“1. Upon receiving a request for provisional access to items and documents, the investigating judge or court shall summon the person in possession of the items and documents, except in the case specified in [paragraph 2] of this Article.", "2. If the party to criminal proceedings that filed the request proves that there are sufficient grounds to believe that a real threat exists of the items and documents concerned being altered or destroyed, the request may be considered by the investigating judge or court without the person in possession of them being summoned ... ”", "Article 309 – Rulings by an investigative judge, which can be appealed at the pre-trial investigation stage", "“1. The following rulings by an investigative judge may be appealed at the pre-trial investigation stage:", "...", "10) [concerning] provisional access to items and documents, which authorise seizure of items and documents, ... in absence of which an individual entrepreneur or a legal entity will be deprived of an opportunity to carry out their activity; ...", "...", "3. Other rulings by an investigative judge may not be appealed against and objections against them may be submitted during preparatory hearing in court.”", "State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997", "32. The relevant part of section 17 of the Act provides as follows:", "Section 17 – Liability for trespass or other actions against the life and health of a journalist and a journalist ’ s liability for non-pecuniary damage caused by him/her", "“... The professional activities of a journalist shall not serve as grounds for his or her arrest and detention, or for the seizure of material collected, processed and prepared by him or her or technical [equipment] that he or she uses in his or her work...”.", "Relevant International Material", "33. Several international documents concern the protection of journalistic sources, including the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and the European Parliament ’ s Resolution on Confidentiality for Journalists ’ Sources (18 January 1994, Official Journal of the European Communities No. C 44/34).", "34. Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information was adopted by the Committee of Ministers of the Council of Europe on 8 March 2000. The appendix contains principles concerning the right of journalists not to disclose their sources of information, including the following:", "Definitions", "“For the purposes of this Recommendation:", "a. the term ‘ journalist ’ means any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication;", "b. the term ‘ information ’ means any statement of fact, opinion or idea in the form of text, sound and/or picture;", "c. the term ‘ source ’ means any person who provides information to a journalist;", "d. the term ‘ information identifying a source ’ means, as far as this is likely to lead to the identification of a source:", "i. the name and personal data as well as voice and image of a source,", "ii. the factual circumstances of acquiring information from a source by a journalist,", "iii. the unpublished content of the information provided by a source to a journalist, and", "iv. personal data of journalists and their employers related to their professional work.", "Principle 1 (Right of non-disclosure of journalists)", "Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.", "...", "Principle 3 (Limits to the right of non-disclosure)", "a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10 § 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10 § 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre ‑ eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.", "b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:", "i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and", "ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:", "• an overriding requirement of the need for disclosure is proved,", "• the circumstances are of a sufficiently vital and serious nature,", "• the necessity of the disclosure is identified as responding to a pressing social need, and", "• member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.", "c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.", "Principle 4 (Alternative evidence to journalists ’ sources)", "In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.", "...", "Principle 6 (Interception of communication, surveillance and judicial search and seizure)", "a. The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source:", "i. interception orders or actions concerning communication or correspondence of journalists or their employers,", "ii. surveillance orders or actions concerning journalists, their contacts or their employers, or", "iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work.", "b. Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3.”", "35. On 25 January 2011 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1950 (2011), The protection of journalists ’ sources, which, inter alia, indicated as follows:", "“5. Public authorities must not demand the disclosure of information identifying a source unless the requirements of Article 10, paragraph 2, of the Convention are met and unless it can be convincingly established that reasonable alternative measures to disclosure do not exist or have been exhausted, the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, and an overriding requirement of the need for disclosure is proved.", "6. The disclosure of information identifying a source should therefore be limited to exceptional circumstances where vital public or individual interests are at stake and can be convincingly established. The competent authorities, requesting exceptionally the disclosure of a source, must specify the reasons why such vital interest outweighs the interest in the non-disclosure and whether alternative measures have been exhausted, such as other evidence. If sources are protected against any disclosure under national law, their disclosure must not be requested.", "...", "8. The right of journalists not to disclose their sources applies also to sources from within the police or judicial authorities. Where such provision of information to journalists was illegal, police and judicial authorities must pursue internal investigations instead of asking journalists to disclose their sources.", "...", "12. The Assembly reaffirms that the confidentiality of journalists ’ sources must not be compromised by the increasing technological possibilities for public authorities to control the use by journalists of mobile communication and Internet media. The interception of correspondence, surveillance of journalists or search and seizure of information must not circumvent the protection of journalists ’ sources. Internet service providers and communication companies should not be obliged to disclose information which may lead to the identification of journalists ’ sources in violation of Article 10 of the Convention.”", "36. On 8 September 2015 the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression submitted a report to the UN General Assembly (A/70/361), which stated, inter alia (footnotes omitted):", "“C. Nature and scope of protection", "21. Some authorities refer to a journalistic ‘ privilege ’ not to disclose a source ’ s identity, but both reporter and source enjoy rights that may be limited only according to article 19 (3). Revealing or coercing the revelation of the identity of a source creates disincentives for disclosure, dries up further sources to report a story accurately and damages an important tool of accountability. In the light of the importance attached to source confidentiality, any restrictions must be genuinely exceptional and subject to the highest standards, implemented by judicial authorities only. Such situations should be limited to investigations of the most serious crimes or the protection of the life of other individuals.", "22. National laws should ensure that protections apply strictly, with extremely limited exceptions. Under Belgian law, journalists and editorial staff may be compelled by a judge to disclose information sources only if they are of a nature to prevent crimes that pose a serious threat to the physical integrity of one or more persons, and upon a finding of the following two cumulative conditions: (a) the information is of crucial importance for preventing such crimes; and (b) the information cannot be obtained by any other means. The same conditions apply to investigative measures, such as searches, seizures and telephone tapping, with respect to journalistic sources.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "37. The applicant complained that the court orders allowing the PGO to access her mobile telephone communications data had constituted an unjustified interference with her right to the protection of journalistic sources. She relied on Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "38. The Government argued that the complaint was manifestly ill ‑ founded, alleging that the measures of interference complained of had been duly justified under Article 10 § 2 of the Convention.", "39. The Court finds that the complaint raises an issue which lends itself to be examined on the merits. It further notes that it is not inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsSubmissions by the parties", "Submissions by the parties", "Submissions by the parties", "(a) The applicant", "40. The applicant argued that the disputed court orders of 27 August and 18 September 2018, which had allowed the PGO to access her mobile telephone communications data, had constituted an unjustified interference with her rights under Article 10.", "41. She considered that the applicable domestic law did not contain sufficient procedural safeguards aimed at the protection of the journalistic sources. In particular, the applicant expressed her dismay with the fact that the order of 27 August 2018 had been taken at an ex parte hearing and had not been served on her. If she had not learned of its existence by pure chance, she would never have been able to appeal against it and would not have known that the integrity of her communications data and her sources could be compromised.", "42. She further argued that both of the aforementioned court orders had not been necessary in a democratic society.", "43. In particular, there had been no pressing social need for the disclosure of the applicant ’ s communications data. Her purported participation in a confidential meeting with S. of the NABU had been a mere “probability”. Neither the authenticity of the audio recording of that meeting nor the authenticity of her voice on it had been established with certainty. It had likewise not been established that the PGO officials had exhausted other, more targeted and less intrusive means of establishing the relevant facts. Among other things, they could have started by examining the NABU visitors ’ log book.", "44. The applicant further argued that, in any event, the scope of communications data which could be divulged to the PGO pursuant to the disputed court orders had been grossly disproportionate. In her view, the goal of protecting the reputation of Ms N. or prosecuting the NABU officials for leaking confidential information could not be considered an “overriding interest” for the disclosure of her mobile communications over a sixteen-month period. This information could lead to the identification of the applicant ’ s sources in journalistic investigations concerning high-profile corruption. The court orders had contained no restrictions concerning the use of this data, making it potentially accessible, at the very least, to the sixteen members of the PGO investigative team working on the case against S. The risk of such disclosure having a detrimental effect had been all the more imminent as at least seven of the applicant ’ s recent investigations concerned corruption within the ranks of the PGO. In addition K., the subject of the NABU investigation in which the information had been leaked, had himself worked at the PGO and could have had an unhealthy interest in the applicant ’ s data.", "45. The applicant also pointed out that she had never been able to know with certainty whether either of the judicial orders had been enforced. She submitted that the PGO ’ s written assurances to the contrary (see paragraph 28 above) were not sufficiently convincing. She pointed out that on 4 September 2018 the PGO had in fact asked her mobile telephone operator to disclose the impugned data and that the latter had subsequently refused to inform her whether this request had been satisfied – accordingly, it was not possible to exclude that it had been (see paragraphs 18 and 23 above). Furthermore, it could be discerned from the statements made by the Prosecutor General at a press conference on 15 September 2018 that the operator had in fact responded to the PGO ’ s request (see paragraph 21 above). In any event, even if the two disputed court orders had remained unenforced, this had only been due to the indication of an interim measure by the Court, and not because the domestic authorities had intervened to protect the applicant ’ s rights. She also expressed her fear that the PGO would keep seeking other ways of accessing her communications data, as was evident from the statement by the Prosecutor General himself (see paragraph 26 above).", "46. According to the applicant, both the measure of interference authorised by domestic courts and the persistent uncertainty as to whether or not the respective court orders had been enforced and whether the confidentiality of the applicant ’ s sources could be compromised had had a prohibitive chilling effect on her activity as an investigative journalist.", "(b) The Government", "47. The Government argued that there had been no breach of the applicant ’ s rights under Article 10 in the present case.", "48. They submitted the written assurances given by the PGO that neither of the two disputed court orders had been enforced. They also noted that the order of 27 August 2018 had been replaced by the order of 18 September 2018 and the latter had expired on the same date as the District Court ’ s order would have, that is, on 27 September 2018. Therefore, neither of them could still be enforced. Notwithstanding the above, the Government acknowledged that the aforementioned court orders had amounted to an interference with the applicant ’ s right to impart and receive information under Article 10 of the Convention.", "49. The Government argued that the judicial authorisation given to the PGO to access the applicant ’ s communications data in accordance with the provisions of the CCP had been lawful. They further argued that the disputed interference had pursued legitimate aims, in particular, investigation of a serious crime and protection of the rights of Ms N.", "50. Access to the applicant ’ s communications data had been necessary to establish the place and date of the meeting during which the NABU officials, in breach of the law, had leaked information protected by the confidentiality of the ongoing criminal investigation and encroaching upon the private life and correspondence of Ms N. Before seeking the disputed authorisation, the PGO officials had exhausted other, less intrusive measures, which could lead to the establishment of the relevant facts crucial for the investigation into the apparent serious crime. In particular, they had questioned the applicant as a witness, but she had refused to provide any information, referring to journalistic privilege against the disclosure of sources.", "51. The Government further argued that any shortcomings in the District Court ’ s order of 27 August 2018 (which, according to them, remained unenforced) had been remedied by the order issued by the Court of Appeal on 18 September 2018 to replace it. In particular, the Court of Appeal had taken into account the fact that the applicant was a journalist and was not herself party to the criminal proceedings at issue. It had also restricted the scope of the authorisation to the geolocation data concerning the applicant ’ s presence within a particular perimeter, which had corresponded to the “cell” covering the NABU. The period covered by the authorisation had been limited only to the period of time within which the apparent offence could have been committed. In addition, the authorisation itself could only be enforced during a very limited ten-day period (until 27 September 2018).", "52. The Government considered that the applicant ’ s allegations that the disputed measure could result in the identification of her journalistic sources and that her communications data could be used for ulterior motives were unsubstantiated and very general.", "(c) The third parties", "53. The Media Legal Defence Initiative and Human Rights Platform submitted that the problem of interference with the confidentiality of journalistic sources transcended all member States of the Council of Europe, posing new legal challenges in view of technological advances and the emergence of new types of media, communications and information processing. They suggested that that pre-eminence of the protection of “journalistic sources” in the broadest sense was crucial to the preservation of the “public watchdog” function of the modern media and that the principles enunciated in Recommendation No. R (2000) 7 (see paragraph 34 above) and the Court ’ s case law remained the guidelines to be followed. The interveners also expressed concern that the Court ’ s judgment in the case of Becker v. Norway could be perceived as lowering the source protection standard as compared to the earlier Tillack v. Belgium judgment. In particular, it could read as suggesting that the level of source protection might depend on such factors as unscrupulous or illegal conduct of a journalist and, vice versa, that a journalist ’ s right to protection of sources might depend on the conduct of a source. In the interveners ’ view, the appropriate test should not depend on the status of a particular “social communicator”, the conduct of such a communicator or the source. Instead, the crucial question should be whether a particular person acted for the purpose of informing the public of a matter of legitimate public interest.", "The Court ’ s assessment", "(a) General principles concerning the protection of journalistic sources", "54. The Court reiterates at the outset that the protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information may be adversely affected (see, among other authorities, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II and Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 50, 14 September 2010).", "55. The Court ’ s understanding of the concept of journalistic “source” covers “any person who provides information to a journalist” and the “information identifying a source” has been considered to include any information likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see, for example, Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 86, 22 November 2012 and Saint-Paul Luxembourg S.A. v. Luxembourg, no. 26419/10, § 50, 18 April 2013). A chilling effect on the freedom of the press will arise wherever journalists are seen to assist in the identification of anonymous sources (see Sanoma Uitgevers B.V., cited above, § 71).", "(b) Application of the above principles in the present case", "(i) Whether there was an interference with the applicant ’ s freedom of expression", "56. In the present case, the national courts authorised the PGO to access the applicant ’ s communications data stored by her mobile telephone operator. The parties agreed that the impugned authorisation, regardless of whether either of the two relevant court orders had been enforced, had amounted to an “interference” with the applicant ’ s rights under Article 10 of the Convention. The Court sees no reason to hold otherwise.", "57. The Court must therefore examine whether the interference was justified under the second paragraph of Article 10 of the Convention, that is, whether it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society” (see, among other authorities, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 141, 27 June 2017).", "(ii) Whether the interference was justified", "(1) Whether there was “a legitimate aim” for the interference", "58. The Court first notes that the aforementioned authorisation was given for the purpose of furthering the investigation concerning the leak of confidential information regarding ongoing criminal proceedings and the private life of Ms N. The Court is therefore satisfied – and it has not been disputed by the parties – that the interference at issue pursued some of the “legitimate aims” listed in Article 10 § 2, in particular, “the prevention of ... crime” and “protection of the reputation or rights of others” (compare Becker v. Norway, no. 21272/12, § 60, 5 October 2017).", "(2) Whether the interference was “prescribed by law”", "59. In considering whether the interference at issue was “prescribed by law”, the Court observes that access to the applicant ’ s communications data was authorised by the national judicial authorities under Article 163 of the CCP (see paragraph 31 above). The measure in question therefore had some basis in domestic law. In so far as the applicant complained that the relevant law lacked procedural safeguards, notably as the court decision in her case had been taken at an ex parte hearing, it appears that, under the CCP, ex parte hearings are only allowed in exceptional cases. Under Article 163 § 2, in order to obtain an ex parte hearing, the party who files a request for access to “items and documents” must prove “ that there are sufficient grounds to believe that a real threat exists of the items and documents concerned being altered or destroyed”. In all other cases, as it appears from Article 163 § 1, the national courts are required to summon the persons concerned by such access requests to the hearings. In the Court ’ s view, this general requirement constitutes an important procedural safeguard for all persons potentially concerned by data access requests, including journalists.", "60. It appears that in the applicant ’ s case, this safeguard was not implemented owing to the particular interpretation of Article 163 of the CCP by the District Court. Rather than enunciating specific reasons for considering the PGO ’ s request without summoning the applicant, the District Court made a formulaic reference to the “threat of the information sought being altered or destroyed” (see paragraph 16 above). In the Court ’ s view, giving more ample reasons for justifying the above finding was of significant importance, in particular, because the data in question, stored by the applicant ’ s mobile operator, was not in her personal possession. As a consequence of the District Court ’ s decision to apply Article 163 § 2, the applicant was also not notified by it that the PGO had obtained an authorisation to access her communications data and, once she learned about that authorisation from other sources, the District Court refused to provide her with a copy of its respective order (see paragraphs 17 and 19 above). It appears that had it not been for a pure chance that the applicant became aware of that order, she might not have been able to make use of any procedural safeguards existing in the domestic law for protecting her rights. The Court is deeply concerned with this possibility, which would be tantamount to arbitrariness. However, given that in this particular case, the applicant did in fact learn about the existence of the disputed order and the Court of Appeal found it possible to accept her appeal for consideration and to quash the order, the Court finds that the crux of the applicant ’ s remaining argument before it concerns the relevance and sufficiency of the reasons provided by the judicial authorities for authorising the interference with her protected data. The Court therefore finds it necessary to continue its examination of the case by turning to the question whether the interference was necessary in a democratic society ( compare Nagla v. Latvia, no. 73469/10, §§ 87 ‑ 91, 16 July 2013; and Becker, cited above, §§ 63-64).", "(3) Whether the interference was “necessary in a democratic society”", "‒ General principles", "61. The Court reiterates that its task in assessing the “necessity” of the interference is not to take the place of the national authorities, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation were compatible with the provisions of the Convention relied upon (see, among other authorities, Telegraaf Media Nederland Landelijke Media B.V. and Others, cited above, § 124). The Court must accordingly examine the reasons given by the judicial authorities for authorising access to information together with the scope of that access, in order to ascertain whether those reasons were “relevant” and “sufficient” and thus whether, having regard to the margin of appreciation afforded to the national authorities, the interference was proportionate to the legitimate aims pursued and whether it corresponded to a “pressing social need” (see, among other authorities, Nagla, cited above, § 94).", "62. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society, the Court has repeatedly stated that limitations on the confidentiality of journalistic sources call for the most careful scrutiny (see, among other authorities, Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003 ‑ IV, and Saint-Paul Luxembourg S.A., cited above, § 58). An interference potentially leading to disclosure of a source cannot be considered “necessary” under Article 10 § 2 unless it is justified by an overriding requirement in the public interest (see, among other authorities, Roemen and Schmit, cited above, § 46; Voskuil v. the Netherlands, no. 64752/01, § 65, 22 November 2007; and Becker, cited above, §§ 65-66, with further references). The Court has previously held that to establish the existence of an “overriding requirement” it may not be sufficient for a party seeking disclosure of a source to show merely that he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases the claim: the considerations to be taken into account by the Court for its review under Article 10 § 2 tip the balance of competing interests in favour of the interest of democratic society in securing a free press (see Goodwin, cited above, § 45; compare also Roemen and Schmit, cited above, § 58; Voskuil, cited above, § 72; Martin and Others v. France, no. 30002/08, § 87, 12 April 2012; and Ressiot and Others v. France, nos. 15054/07 and 15066/07, § 126, 28 June 2012). In this connection, the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution (see, among other authorities, Tillack v. Belgium, no. 20477/05, § 65, 27 November 2007).", "63. In a series of cases concerning searches of journalists ’ homes and workplaces and the seizure of journalistic material, the Court recognised that such measures, even if unproductive, constituted a more drastic type of interference than a targeted order to divulge the source ’ s identity, since such measures had allowed the relevant authority to obtain access to a broad range of the material used by the journalists in discharging their professional functions (see, among other authorities, Roemen and Schmit, cited above, § 57; Ernst and Others v. Belgium, no. 33400/96, § 103, 15 July 2003; Nagla, cited above, § 95; and Görmüş and Others v. Turkey, no. 49085/07, § 73, 19 January 2016). Similar conclusions were reached by the Court in a case where the seizure also concerned, among other things, the journalists ’ communications data (see Ressiot and Others, cited above, § 125).", "‒ Application of those principles in the present case", "64. Examining the present case in the light of the aforementioned principles, the Court considers that the reasons given by the domestic judicial authorities for the interference with the applicant ’ s rights under Article 10 were not sufficient to demonstrate that the interference was proportionate and that it corresponded to a pressing social need.", "65. In this connection, the Court notes firstly that the District Court ’ s order of 27 August 2018 authorised the PGO to collect a wide range of the applicant ’ s protected communications data concerning her personal and professional contacts over a sixteen-month period. The disputed authorisation included, in particular, access to information concerning the time and duration of the applicant ’ s communications and the telephone numbers of her contacts (see paragraphs 15-16 above). This data could possibly include identifiable information concerning the applicant ’ s confidential sources which had no relevance to the criminal proceedings regarding the alleged misconduct of S. ( compare and contrast Weber and Saravia v. Germany ( dec. ), no. 54934/00, § 151, ECHR 2006 ‑ XI). The risk of detriment to the interests protected by Article 10 was all the greater as the focus of the applicant ’ s work as a journalist had been on investigating high-profile corruption, including corruption within the PGO itself. The District Court ’ s order contained no safeguards excluding the possibility that information potentially leading to the identification of any such sources would become available to a wide circle of PGO officials and could be used for purposes unrelated to the criminal investigation concerning S. These elements are sufficient for the Court to conclude that the scope of the data access authorisation in the court order of 27 August 2018 was grossly disproportionate to the legitimate aims of investigating a purported leak of classified information by S. and protecting Ms N. ’ s private life.", "66. The Government argued that the flaws in the District Court ’ s order had been rectified since the Court of Appeal had accepted the applicant ’ s appeal for consideration and had quashed that order, which remained unenforced. However, the Court considers that the first order nevertheless provides relevant and important context in the present case.", "67. It notes in this respect that the wording of the aforementioned order indicated that it was not amenable to appeal. Notwithstanding that on 18 September 2018 the Court of Appeal quashed it, having exceptionally accepted the applicant ’ s appeal for consideration, between 27 August and 18 September 2018 the order was considered final and enforceable. It is evident from the case file that the PGO made at least one attempt, namely, on 4 September 2018, to collect some of the applicant ’ s data with reference to the order in question (see paragraph 18 above). Subsequently, the PGO officials gave inconclusive information as to whether or not the applicant ’ s mobile operator had responded to that letter and whether it had divulged any of the applicant ’ s data.", "68. For instance, on 15 September 2018, the Prosecutor General indicated at a press-conference that he was, in principle, ready to show the reply from the mobile operator to reassure the applicant and the public that no data identifying any journalistic sources had been received by the PGO (see paragraph 21 above). His statement created an appearance that the PGO had obtained some sort of communication from the mobile operator and that that communication could be accessed by those interested. However, on 20 September 2018 the PGO refused to provide either the aforementioned reply purportedly received from the operator, or any information as to whether or not any such reply had been received (see paragraph 23 above). Next, on 27 September 2018, in his interview at the Parliament, the Prosecutor General denied having received any reply from the mobile operator (see paragraph 26 above). Finally, on 12 February 2019 the PGO indicated to the Government ’ s Agent, within the framework of the present proceedings, that, overall, they had not carried out any actions authorised by either of the two disputed court orders (see paragraph 28 above). Based on the aforementioned submissions viewed in the light of other available material, the Court is unable to draw a definite conclusion as to whether or not the integrity of the applicant ’ s communications data was preserved during the period of validity of the District Court ’ s order.", "69. The Court agrees that the new data access authorisation given on 18 September 2018 by the Court of Appeal, which replaced the District Court ’ s authorisation and was limited essentially to the collection of her geolocation data over a sixteen-month period, could remove the aforementioned threat of identification of the applicant ’ s sources unrelated to the proceedings against S., assuming that the PGO had not previously received any such data from the applicant ’ s mobile operator, as alleged by the Government. However, it is notable that S. was himself treated by the PGO authorities as the applicant ’ s journalistic source. They sought access to the applicant ’ s data precisely to test an assumption that S. had met with the applicant in order to provide her with confidential information relevant to her activity as an investigative journalist and, if so, to use her data as evidence in criminal proceedings against him. The fact that the name of the applicant ’ s purported source was known to the authorities and that he was implicated in a criminal offence did not as such remove the applicant ’ s own protection under Article 10 of the Convention (compare Nagla, § 95, and Becker, §§ 72 and 82, both cited above).", "70. Accordingly, for the purposes of Article 10 of the Convention, the Court of Appeal was still bound to demonstrate that the seizure of her geolocation data was justified by an overriding requirement in the public interest. In other words, the Court of Appeal had to indicate why the interest in obtaining the applicant ’ s geolocation data sought by the PGO was of a vital nature for combatting serious crime; to ascertain that there were no reasonable alternative measures for obtaining the information sought by the PGO; and to demonstrate that the legitimate interest in the disclosure clearly outweighed the public interest in the non-disclosure (compare Goodwin, § 45, and Ressiot and Others, §§ 122 and 126, both cited above).", "71. The Court finds that the text of the Court of Appeal ’ s ruling did not sufficiently respond to these requirements. Firstly, this ruling authorised access to the applicant ’ s protected geolocation data over a sixteen-month period. In view of the length of that period and the size of the geographical area of the city centre of Kyiv in respect of which the geolocation data was sought [1], the applicant ’ s telephone could have been registered there on a number of occasions which had no relevance to the case under investigation by the PGO. Secondly, by way of justifying the pressing social need for the interference with the applicant ’ s rights, the Court of Appeal referred only to the purpose of “achieving efficiency” in a criminal investigation and establishing “more exactly the time and place” of the purported confidential meeting (see paragraph 22 above) without providing any indication why these considerations outweighed the public interest in non-disclosure of the applicant ’ s protected geolocation data. Thirdly, based on the case file, at the relevant time there remained considerable uncertainty that any information pertinent to the proceedings against S. would be retrieved from the applicant ’ s communications data. It appears from the material in the Court ’ s possession that at the relevant time it had not been unequivocally established that S. ’ s alleged meeting with the journalists had been held on the NABU ’ s premises or some other premises located within the geographical area targeted by the PGO for the collection of the applicant ’ s geolocation data, or that the applicant had indeed been a participant in the meeting. Even so, the applicant might not have necessarily had her telephone with her at the time. Fourthly, it does not appear that the Court of Appeal delved into the question whether there were other more targeted means of obtaining the information which the investigative authority had hoped to retrieve from the applicant ’ s communications data.", "72. In view of the above considerations, the Court is not convinced that the data access authorisation given by the domestic courts was justified by an “overriding requirement in the public interest” and, therefore, necessary in a democratic society (see Goodwin, cited above, § 45; Voskuil, cited above, § 72; and Becker, cited above, § 83).", "73. There has accordingly been a breach of Article 10 of the Convention in the present case.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "74. The applicant also argued that the same considerations as those which she had mentioned in respect of Article 10 also gave basis for finding a violation of Article 13 of the Convention concerning the absence of effective remedies for her complaints under Article 10.", "75. The Government argued that there had been no breach of Article 13 in the present case. They submitted that while the data access authorisation issued by the District Court had been too broad, the applicant had been able to have it quashed on appeal.", "76. The Court considers that in view of its relevant findings under Article 10 of the Convention, it is not necessary to address this complaint in the present case.", "RULE 39 OF THE RULES OF COURT", "77. Regard being had that the authorisation to access the applicant ’ s communications data given by the domestic courts to the PGO has expired, the Court considers that it is appropriate to discontinue the interim measure indicated to the Government under Rule 39 of the Rules of Court (see Konovalchuk v. Ukraine, no. 31928/15, § 100, 13 October 2016).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "79. The applicant claimed EUR 10,000 euros (EUR) in respect of non ‑ pecuniary damage.", "80. The Government submitted that the applicant ’ s claim for damage was unsubstantiated.", "81. The Court, ruling on an equitable basis, awards the applicant EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "82. The applicant also claimed EUR 2,350 for the costs and expenses incurred before the Court, comprising legal fees of EUR 1,400 and EUR 950 for her representation by Mr S. Zayets and Ms L. Pankratova respectively. The applicant provided time sheets stating that her representatives spent 14 and 9.5 hours on working on the present case and each charged EUR 100 per hour.", "83. The Government submitted that the applicant ’ s claim was not supported by the appropriate documents. In particular, she had not provided copies of legal services contracts with Mr Zayets and Ms Pankratova.", "84. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the documents in the Court ’ s possession, the Court considers it reasonable to award the applicant EUR 2,350 for legal fees, plus any tax that may be chargeable on that amount.", "Default interest", "85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.", "ARTICLE 46 OF THE CONVENTION", "86. The applicant also asked the Court to indicate to the Government, under Article 46 of the Convention, to implement general measures addressing the protection of journalistic sources, for example, by amending legislation. The applicant did not make any further concrete proposals in this regard.", "87. The Government argued that the Ukrainian legislation had sufficient safeguards for the protection of journalistic sources and there was no need for amending it.", "88. The Court points out that by Article 46 of the Convention the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach of the Convention imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, appropriate individual measures to fulfil its obligations to secure the rights of an applicant (see Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 294, 27 August 2019, with further references).", "89. The Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (ibid., § 295).", "90. Only exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, will the Court seek to indicate the type of measure that might be taken in order to put an end to a violation it has found (ibid., § 296).", "91. Regard being had to the circumstances of the present case and the submissions by the parties, the Court does not consider it necessary to indicate any individual or general measures that the State has to adopt for the execution of the present judgment." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background to the case", "5. The applicant was a Member of Parliament and chairperson of the National Democratic Party of Germany (NPD) in the Land Parliament of Mecklenburg-Western Pomerania. On 27 January 2010, Holocaust Remembrance Day, a memorial event was held in the Land Parliament. The members of the NPD Parliamentary group, including the applicant, did not attend. The following day, the applicant gave a speech in Parliament on the subject listed in the day’s agenda as: “In memory of the victims of the worst disaster in German maritime history – Commemoration of those who died on the [military transport ship] Wilhelm Gustloff ”. During that speech, the applicant uttered, inter alia, the following:", "“With the exception of the groups whose cooperation you have bought, hardly anyone is truly, emotionally taking part in your theatrical display of concern. And why is that? Because people can sense that the so-called Holocaust is being used for political and commercial purposes ... Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”", "(“ ... Bis auf die von Ihnen gekauften Grüppchen und Gruppierungen nimmt kaum noch jemand wirklich innerlich bewegt Anteil an dem Betroffenheitstheater. Und warum ist das so? Weil die Menschen spüren, dass der sogenannte Holocaust politischen und kommerziellen Zwecken dienbar gemacht wird ... Die Deutschen sind seit Ende des Zweiten Weltkrieges einem ununterbrochenen Trommelfeuer von Vorwürfen und Propagandalügen ausgesetzt, deren Bewirtschaftung in verlogener Art und Weise in erster Linie von Vertretern der sogenannten demokratischen Parteien bewirtschaftet wird, meine Herrschaften. Auch was Sie gestern hier im Schloss wieder veranstaltet haben, war nichts anderes, als dem deutschen Volk ebenso raffiniert wie brutal ihre Auschwitzprojektionen überzustülpen. Sie, meine Damen und Herren, hoffen auf den Sieg der Lüge über die Wahrheit. ... ”)", "6. The Parliament of the Land of Mecklenburg-Western Pomerania revoked the applicant’s inviolability from prosecution (see paragraph 29 below) on 1 February 2012.", "B. The proceedings at issue", "7. On 16 August 2012 the Schwerin District Court, sitting as a bench of the presiding professional judge Y and two lay judges, convicted the applicant of violating the memory of the dead and of defamation (see paragraph 28 below) through the utterances cited above; the court sentenced him to eight months’ imprisonment, suspended on probation.", "8. The applicant appealed on points of fact and law. In respect of that appeal the Schwerin Regional Court held a main hearing on 25 March 2013, which included the taking of evidence. The applicant did not comment on the charges against him. In its judgment of the same day, the court dismissed the applicant’s appeal as ill-founded.", "9. In its judgment, the Regional Court cited the applicant’s speech in its entirety, highlighting the excerpts quoted above, which it considered relevant to an assessment of the applicant’s criminal liability. It considered that the applicant’s above-cited utterance, viewed objectively, had had the following content:", "“The applicant asserted that the extermination of the Jews linked to Auschwitz had not taken place, or at least not in the way that it had been reported by historians. The atrocities associated with Auschwitz were a lie and a projection. The lies surrounding Auschwitz had been used since the end of the Second World War to serve various political and economic purposes.”", "The Regional Court concluded that the applicant had thereby denied in a qualified manner the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich ( qualifizierte Auschwitzleugnung ).", "10. In arriving at this conclusion, the Regional Court considered that the applicant had first spoken of a “barrage of propagandistic lies”, to which the Germans had been endlessly exposed since the end of the Second World War, and mentioned the “Auschwitz projection” ( Auschwitzprojektion ) as an example thereof. Linguistically, he had used the terms “lie” and “projection” in close succession as having the same intended meaning, as could be seen in the structure of the sentence. He had used the term “Auschwitz projection” in a sequence that had also contained the terms “propagandistic lies”, “dishonest” and “lie”, connected by the word “also”. With regard to perpetrators and motives in respect of “the Auschwitz lie”, he stated that the propagandistic lies had been “cultivated in a dishonest manner primarily by representatives of the so-called democratic parties” and that “the so-called Holocaust [was] being used for political and commercial purposes”.", "11. The Regional Court noted that terms such as “Auschwitz lie”, “Auschwitz myth” and “Auschwitz cudgel” – which were used time and again in connection with the claim that the murder of millions of Jews during the Third Reich was a (Zionist) swindle – epitomised the assertion that the Holocaust and the events that had taken place in Auschwitz had not occurred as documented in official history books. The term “Auschwitz projection” served that same purpose. The applicant’s reasoning for the alleged “Auschwitz projection” – namely the “[use of the] Holocaust for political and commercial purposes” – invoked an idea that had occupied German courts in numerous cases: namely, the association of “Auschwitz denial” with a particular motive – that is to say the alleged suppression and exploitation of Germany (for the benefit of the Jews), which German courts had determined to constitute a “qualified Auschwitz denial”. The Regional Court ruled out the possibility that the applicant’s statements – which, objectively, were to be understood as constituting a “qualified Auschwitz denial” – could have been misunderstood.", "12. The Regional Court observed that the applicant had not commented on the speech during the appeal hearing and that his lawyer had put forward unconvincing interpretations. It was not in dispute that large parts of the applicant’s speech did not raise an issue under criminal law, either because they did not constitute criminal offences or because of the applicant’s non ‑ liability ( Indemnität, see paragraph 29 below). However, these parts of the applicant’s speech could not mitigate or whitewash ( schön reden ) the utterance cited above. It considered that the applicant had chosen the Wilhelm Gustloff as a subject by way of creating a contrast to the memorial event of 27 January 2010. In large parts of his speech he had referred to German victims of the Second World War – in particular those who had been on the Wilhelm Gustloff – and to other mass murders that had occurred in history. This did not raise an issue under criminal law. In so far as he had criticised the remembrance of the victims of National Socialism and had used dramatic, striking terminology (such as “guilt cult”, “guilt-cult events” and “theatrical display of concern”) to that end, he could rely on his right to freedom of expression as a Member of Parliament, which included the right to make absurd statements in a speech to Parliament.", "13. However, those statements could not mitigate or conceal the qualified Auschwitz denial. The latter had constituted only a small part of the applicant’s speech and the applicant had inserted that denial into the speech as if “inserting poison into a glass of water, hoping that it would not be detected immediately”. For that reason, the Speaker of Parliament had not issued a sanction during the applicant’s speech, and the MPs present had only expressed their indignation. The Regional Court was convinced that the applicant had intended to convey his message exactly in the way that it had been perceived. He wanted to question the accepted truth about Auschwitz and to “sneak” this into Parliament ( dem Parlament “unterjubeln”) in such a way that no parliamentary measures would be taken.", "14. The Regional Court found that the applicant’s qualified Auschwitz denial constituted defamation under Article 187 of the Criminal Code (see paragraph 28 below). The victims of the offence were those Jewish people who – as part of the German population – had been persecuted during the Nazi tyranny because of their religion or their ethnic origin and who had either lost their lives as a result or survived such persecution. The systematic mass murder of the Jews, committed in the concentration camps during the Second World War, was an established historical fact. The qualified Auschwitz denial given by the applicant was tantamount to an untruth. The applicant’s assertions were capable of defaming the persecution of the Jews in Germany ( das Verfolgungsschicksal der betroffenen Juden in Deutschland verächtlich zu machen ) – an event which formed an inherent part of their personal dignity. The speech had been given in Parliament and had been broadcast over the Internet at the same time. The applicant had acted with intent. He could not rely on his right to freedom of expression in respect of his denial of the Holocaust. In making his defamatory statements, the applicant had also denigrated the memory of those murdered in Auschwitz during the Nazi dictatorship because of their Jewish origins. He was thus also guilty of violating those peoples’ memory under Article 189 of the Criminal Code (see paragraph 28 below).", "15. The applicant could not invoke his inviolability from prosecution as a Member of Parliament, because the Parliament of Mecklenburg-Western Pomerania had revoked it (see paragraph 6 above and paragraph 29 below). Nor was the applicant’s criminal liability barred by his non-liability under Article 24 § 1 of the Constitution of the Land of Mecklenburg-Western Pomerania and Article 36 of the Criminal Code (see paragraph 29 below), because defamation ( verleumderische Beleidigungen ) – under both Article 187 and Article 189 of the Criminal Code – did not fall within the scope of that non-liability. In so far as the applicant may have erred in his understanding of the scope of his non-liability, this did not affect his criminal liability.", "16. On 25 March 2013 the applicant lodged an appeal on points of law against the above-mentioned judgment with the Rostock Court of Appeal.", "17. After learning that one of the three judges of the Rostock Court of Appeal responsible for adjudicating that appeal, X, was the husband of the professional District Court judge Y, who had convicted the applicant at first instance (see paragraph 7 above), the applicant, by means of a written submission dated 5 August 2013, lodged a complaint of bias in respect of judge X.", "18. On 6 August 2013 judge X commented in writing on his alleged bias, stating that his wife had – in view of the extensive media coverage of the case – informed him about the course of the proceedings before the District Court. Apart from that, the proceedings had – in line with their general practice – not formed part of their conversations. He was not biased in the proceedings at issue. He also emphasised that the Court of Appeal was called upon to examine the Regional Court’s judgment, not that of the District Court.", "19. On 16 August 2013 the Court of Appeal, with the participation of the challenged judge X, dismissed the bias complaint as inadmissible under Article 26a of the Code of Criminal Procedure (see paragraph 31 below). It explained that it had only examined the appellate judgment delivered by the Regional Court, not the first-instance judgment delivered by the District Court. Following the applicant’s appeal on points of fact and law, the Regional Court had not been called on to review the District Court’s judgment, but rather had had to conduct a main hearing and to comprehensively establish the circumstances of the case anew – both in fact and in law. The fact that X and Y were married could not in itself lead to a fear of bias. The complaint was thus completely ill-suited ( völlig ungeeignet ).", "20. By the same decision, the Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded, finding no legal error to his detriment in the Regional Court’s judgment.", "21. On 22 August 2013 the applicant lodged a motion to be heard, alleging that the Court of Appeal had not addressed some of his arguments relating to his criminal conviction and some relating to his bias complaint against judge X, notably that X, if the appeal on points of law were granted, would have to criticise his wife indirectly, which he would be reluctant to do; that the spouses had talked about the subject matter of the proceedings and that, in the absence of a statement by X specifying the content of the discussions, it had to be assumed that they talked about the key legal issues of the case and that X was hence not impartial. The bias complaint against X had, at least, to be deemed admissible and be adjudicated without X’s participation, even more so as X was the rapporteur. He requested that the decision of 16 August 2013 be quashed and the proceedings concerning the appeal on points of law be continued.", "22. By the same submission, he lodged a bias complaint against the three judges who took the decision of 16 August 2013. There were serious doubts as to their impartiality, as they had not even remotely addressed the applicant’s submission in his appeal on points of law and did not seem to have the slightest problem with the fact that X had indirectly reviewed his wife’s judgment. They even assigned X as the rapporteur in the case and dismissed the applicant’s bias complaint against X as inadmissible. This showed that their approach to the subject matter of the proceedings was ill-considered and dominated by inappropriate ( sachfremd ) considerations concerning the applicant. The procedural approach employed was arbitrary, notably because the conditions of Article 26a of the Code of Criminal Procedure were not met. It was evident that the bias complaint did not call for a purely formal decision, but would have required an in-depth assessment. The arbitrary processing of the bias complaint gave raise to doubts as to the impartiality of the judges who took that decision.", "23. On 11 November 2013 the Court of Appeal dismissed the bias complaint against all three judges who took the decision of 16 August 2013. Sitting as a bench of three judges, none of whom had been involved in the decision of 16 August 2013, it noted that bias complaints that were lodged after a decision to dismiss an appeal on points of law as ill-founded were, in principle, belated and thus inadmissible under Article 26a of the Code of Criminal Procedure. For a bias complaint to be admissible, it had to be lodged prior to the decision dismissing the appeal on points of law as ill ‑ founded. This would equally be true where the bias complaint was made in conjunction with an ill-founded motion to be heard. The purpose of Article 356a of the Code of Criminal Procedure, which concerned breaches of the right to be heard in a decision on an appeal on points of law, was to provide the Court of Appeal with the opportunity to remedy a breach of a right to be heard by way of another assessment of the merits of the appeal on points of law. Its purpose was not, however, to enforce ( Geltung verschaffen ) a belated, and thus inadmissible, bias complaint through an impertinent claim that the right to be heard had been breached. However, in the present case, the decision of 16 August 2013 not only concerned the dismissal of the appeal on points of law as ill-founded, but also a bias complaint. In view of these particularities, it was not appropriate to adjudicate the applicant’s subsequent bias complaint in accordance with Article 26a of the Code of Criminal Procedure, as that provision was to be interpreted narrowly and was foreseen for exceptions, with its scope in principle limited to purely formal decisions. The applicant’s subsequent bias complaint was thus admissible.", "24. Turning to the merits, the court found that the applicant’s second bias complaint against the three judges was, however, ill-founded. Doubts as to the impartiality of a judge were justified where the person alleging bias, based on a sensible assessment of the facts known to him, has reason to believe that the judge concerned would take a position which could interfere with his impartiality. The decisive standpoint was that of a reasonable defendant and the ideas that a party to the proceedings, who was mentally sound and in full possession of his reason ( ein geistig gesunder, bei voller Vernunft befindlicher Prozessbeteiligter ), may have when assessing the circumstances in a serene manner, which could reasonably be expected of him. As a rule, the participation of a judge in earlier decisions was not a ground for objecting to a judge ( Ablehnungsgrund ), because a reasonable defendant must assume that the judge did not, thereby, determine his position for future decisions. The situation was different where particularities of the prior involvement, such as grossly flawed or even arbitrary (wrong) decisions to the detriment of the person concerned, gave rise to a (well-founded) suspicion of partiality in an individual case.", "25. In the present case, such grounds justifying the objection had neither been submitted by the applicant nor were they evident. The applicant had not substantiated objectively reasonable circumstances giving rise to a fear of bias. The prior involvement of a judge with the substance matter of the proceedings was, in itself, never a ground for objecting to a judge, as a reasonable defendant can assume that the judge will approach the matter without bias, even if he had previously formed an opinion on the case. This also applied to a judge dealing with appeals on points of law. It was true that the applicant had additionally submitted that the very manner of the prior involvement proved the partiality of the challenged judges. However, specific circumstances which would justify such fear also from the perspective of a reasonable applicant were not apparent. The applicant’s submission was, in substance, limited to complaining that the judges had not followed his line of reasoning and to alleging that the judges had thus “repeatedly and intentionally” breached his right to be heard and that they proceeded in an “objectively arbitrary” manner. This was not sufficient. A sensible assessment of the decisions to the applicant’s detriment, which he considered flawed, did not justify a fear of bias in respect of the challenged judges.", "26. On 14 November 2013 the Court of Appeal rejected the applicant’s objection to its decision of 16 August 2013, in which he alleged a violation of his right to be heard, concerning his appeal on points of law.", "27. On 5 June 2014 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 2636/13)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Relevant criminal offences", "28. The relevant provisions of the Criminal Code read as follows:", "Article 187 [Intentional defamation]", "“Whosoever intentionally and knowingly asserts or disseminates an untruth related to another person that may defame him or negatively affect public opinion about him or endanger his creditworthiness shall be liable to [a term of] imprisonment not exceeding two years or a fine and, if the offence was committed publicly, in a meeting or through the dissemination of written materials ..., to [a term of] imprisonment not exceeding five years or a fine.”", "Article 189 [Violating the memory of the dead]", "“Whosoever defames the memory of a deceased person shall be liable to [a term of] imprisonment not exceeding two years or a fine.”", "B. Immunity (non-liability and inviolability) for statements made in Parliament", "29. Non-liability ( Indemnität ) excludes criminal liability for a vote cast or a statement made in Parliament, including after the end of the term of office, and cannot be revoked ( Strafausschließungsgrund ). It does not apply to cases of intentional defamation (Article 36 of the Criminal Code), which can thus be subject to criminal prosecution, if Parliament gives its permission – revoking the inviolability ( Immunität ) enjoyed by the MP concerned – or if the MP is apprehended while committing the offence or in course of the following day. Article 24 §§ 1 and 2 of the Constitution of the Land of Mecklenburg-Western Pomerania are applicable to Members of the Parliament of the Land and read as follows:", "Article 24 of the Constitution of the Land of Mecklenburg-Western Pomerania [Non-liability, Inviolability, Right to Refuse Testimony]", "“(1) At no time may a Member of the Land Parliament be subjected to court proceedings or disciplinary action or be otherwise called to account outside the Land Parliament for a vote cast or for any utterance made in the Land Parliament or in any of its committees. This provision shall not apply to defamatory insults.", "(2) A Member of the Land Parliament may not be called to account or arrested for a punishable offence without the permission of the Land Parliament, unless he is apprehended while committing the offence or in the course of the following day. The permission of the Land Parliament shall also be required for [the imposition of] any deprivation or other restriction on the liberty of a Member of the Land Parliament or for the initiation of proceedings against that Member.", "...”", "C. Disqualification of judges and proceedings in respect of complaints of bias", "30. Article 22 of the Code of Criminal Procedure lists a number of scenarios in which personal relationships disqualify, by law, a judge from sitting on a case. Marriage to another judge involved at a different level of jurisdiction in the same proceedings is not listed. However, a judge may still be disqualified under Article 24 of the Code if there are grounds justifying doubts as to the judge’s impartiality. The case-law of the domestic courts diverges as to whether a justifiable fear of bias follows from the fact of marriage alone in a scenario in which the challenged judge is married to the judge who rendered judgment at the level of jurisdiction immediately below and in which that judgment is under scrutiny at the appeal stage (no fear of bias found by the Federal Court of Justice, no. II ZB 31/02, decision of 20 October 2003; fear of bias found by the Federal Social Court, no. B 14 AS 70/AS, decision of 18 March 2013, in view of the complexity of, and close scrutiny of the challenged judgment in, proceedings concerning an appeal on points of law).", "31. As a rule, the court must rule on a complaint of bias without the challenged judge being involved in reaching that decision (Article 27 of the Code of Criminal Procedure). Article 26a of the Code provides an exception whereby under certain circumstances the adjudicating court may reach its decision with the participation of the challenged judge. The objective of that exception is to avoid courts having to interrupt or even stay proceedings in order for certain challenges to be examined. The provision permits the participation of the challenged judge in the decision if, inter alia, the challenge does not disclose the grounds for the alleged bias (Article 26a § 1 number 2). According to the case-law of the domestic courts, this latter provision also covers cases where the grounds for the challenge is disclosed but is completely ill-suited (see Federal Constitutional Court, no. 2 BvR 1674/06, decision of 27 April 2007; Federal Court of Justice, no. 3 StR 239/12, decision of 15 November 2012). The provision is to be interpreted narrowly, and a challenge may only be considered “completely ill-suited” when it can be rejected without any examination of the subject matter of the proceedings; it does not suffice that the challenge is manifestly ill-founded (Federal Constitutional Court, no. 2 BvR 1674/06, cited above).", "32. Where a complaint of bias is deemed to be well-founded, the respective judge is disqualified from sitting in further decisions on that case. Where a bias complaint, which has been lodged after a decision to dismiss an appeal on points of law, is lodged against the judges who took that decision, these judges are, if the complaint of bias is deemed to be well ‑ founded, excluded from sitting in further decisions of that case which, in practice, notably concerns a motion to be heard ( Anhörungsrüge ) that has not yet been adjudicated. In respect of a motion to be heard, the scope of assessment is limited to the question of whether the applicant’s right to be heard had been breached by the impugned decision; it does not entail a full assessment in fact and in law of the impugned decision itself. A fear of bias against one of the judges sitting on the impugned decision does not in itself render the motion to be heard well-founded. If a motion to be heard is deemed to be well-founded, the proceedings have to be reinstated to the situation as it was prior to the breach of the right to be heard, that is, prior to the impugned decision (Article 356a of the Code of Criminal Procedure). If the judges who took that decision are deemed to have been biased, they are disqualified from sitting in the new substantive decision.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "33. The applicant complained that his criminal conviction for violating the memory of the dead and for defamation had breached his right to freedom of expression, as guaranteed by Article 10 of the Convention, which, insofar as relevant, reads as follows:", "“1. Everyone has the right to freedom of expression. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”", "A. The parties’ submissions", "34. The Government submitted that the views expressed by the applicant – that is to say denial of the Holocaust – ran counter to the text and spirit of the Convention and that he therefore could not, under Article 17 of the Convention, rely on Article 10 as regards his impugned statements. This part of the application was thus incompatible ratione materiae with the provisions of the Convention. In the alternative, they maintained that the complaint was ill-founded. The applicant’s criminal conviction for the impugned statements constituted a justified interference under Article 10 § 2 of the Convention. The domestic courts had comprehensively assessed the case in fact and in law and had thoroughly reasoned their decisions, notably as to why the statements had amounted to Holocaust denial. The fact that the applicant had been a Member of Parliament at the material time and that the statement had been made in Parliament did not lead to a different result.", "35. The applicant submitted that the domestic courts had wrongfully interpreted his statements as Holocaust denial. They had wrongfully selected a small part of his speech and had based the applicant’s conviction on these aspects viewed in isolation, rather than assessing the speech as a whole. His speech was not to be understood as such a denial, but as a criticism of the culture of remembrance, as upheld by the German establishment. Its purpose had not been to deny the suffering of Jewish victims but to call for an honouring of the suffering of “German” victims as well. His statements did not fall within the ambit of Article 17 of the Convention. As a Member of the Parliament of the Land of Mecklenburg-Western Pomerania, he benefitted from non-liability for statements made in Parliament, and interferences with his right to freedom of expression called for the closest scrutiny.", "B. The Court’s assessment", "36. The former Commission and the Court have dealt with a number of cases under Articles 10 and/or 17 of the Convention concerning denial of the Holocaust and other statements relating to Nazi crimes and declared them inadmissible, either as being manifestly ill-founded (see recently Williamson v. Germany (dec.), no. 64496/17, 8 January 2019) – relying on Article 17 as an aid in the interpretation of Article 10 § 2 of the Convention and using it to reinforce its conclusion on the necessity of the interference – or as being incompatible ratione materiae with the provisions of the Convention in view of Article 17 of the Convention (see Perinçek v. Switzerland [GC], no. 27510/08, §§ 209-212, ECHR 2015 (extracts), with further references; see also Roj TV A/S v. Denmark (dec.), no. 24683/14, §§ 26-38, 17 April 2018, for an analysis of the case-law concerning Article 17 of the Convention).", "37. The Court reiterates that Article 17 is only applicable on an exceptional basis and in extreme cases and should, in cases concerning Article 10 of the Convention, only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention (see Perinçek, cited above, § 114). The decisive point when assessing whether statements, verbal or non-verbal, are removed from the protection of Article 10 by Article 17, is whether those statements are directed against the Convention’s underlying values, for example by stirring up hatred or violence, or whether by making the statement, the author attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it (see ibid., § 115; and Roj TV A/S, cited above, § 31). In a case concerning Holocaust denial, whether the Court applies Article 17 directly, declaring a complaint incompatible ratione materiae, or instead finds Article 10 applicable, invoking Article 17 at a later stage when it examines the necessity of the alleged interference, is a decision taken on a case-by-case basis and will depend on all the circumstances of each individual case.", "38. In its case-law, the Court has consistently underlined the particular importance of freedom of expression for Members of Parliament, this being political speech par excellence. States have very limited latitude in regulating the content of Parliamentary speech. However, some regulation may be considered necessary in order to prevent forms of expression such as direct or indirect calls for violence. Through the generally recognised rule of Parliamentary immunity (as a generic concept covering both aspects non-liability and inviolability) the States provide an increased level of protection to speech in Parliament, with the consequence that the need for the Court’s intervention could nonetheless be expected to be rare. Interferences with the freedom of expression of an opposition Member of Parliament call for the closest scrutiny on the part of the Court (see the summary of relevant principles in Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, §§ 137-141, 17 May 2016, with further references).", "39. In the present case the Court considers, on the one hand, that the applicant’s statements showed his disdain towards the victims of the Holocaust, which speaks in favour of the incompatibility ratione materiae of the complaint with the provisions of the Convention (compare Witzsch v. Germany (no. 2) (dec.), no. 7485/03, 13 December 2005). On the other hand, it has regard to the fact that the statement was made by a Member of Parliament during a Parliamentary session, such that it could warrant an elevated level of protection and any interference with it would warrant the closest scrutiny on the part of the Court. Having regard to the role of Parliamentary immunity in providing increased protection to speech in Parliament, the Court considers it to be of particular relevance that the Parliament of the Land of Mecklenburg-Western Pomerania revoked the applicant’s inviolability from prosecution (see paragraphs 6, 15 and 29 above).", "40. To the extent that the applicant can rely on Article 10 of the Convention, the Court finds that his criminal conviction for the statement at issue amounted to an interference with his right to freedom of expression. Such interference will infringe the Convention if it does not meet the requirements of Article 10 § 2 of the Convention.", "41. The Court reiterates that it is not called upon to examine the constituent elements of the offences of intentional defamation and of violating the memory of the dead; nor is it called upon to examine the extent of the indemnity enjoyed by a Member of Parliament. Rather, it is in the first place for the national authorities, especially the courts, to interpret and apply domestic law (see M’Bala M’Bala v. France (dec.), no. 25239/13, § 30, ECHR 2015 (extracts), with further references). Accordingly, the Court is satisfied that the interference was prescribed by law (namely Articles 187 and 189 of the Criminal Code) and that it pursued the legitimate aim of protecting the reputation and rights of others.", "42. The Court thus has to determine whether the interference with the applicant’s right to freedom of expression was “necessary in a democratic society”. The relevant principles are well established in the Court’s case-law and have recently been summarised in Karácsony and Others (cited above, §§ 132, 137-141).", "43. Reiterating that the Court must satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see M’Bala M’Bala, cited above, § 30), it observes that the Regional Court cited the applicant’s speech in its entirety and considered that large parts of it did not raise an issue under criminal law. That court found, however, that these parts of the applicant’s speech could not mitigate, conceal or whitewash the qualified Holocaust denial that the applicant had uttered in a small part of the speech. It considered that the applicant had inserted that denial into the speech like “poison into a glass of water, hoping that it would not be detected immediately”. He had questioned the true nature of Auschwitz and had “sneaked” this into Parliament in such a way that no parliamentary measures would be taken. The Regional Court was convinced that he had intended to convey his message exactly in the way it was perceived. It assessed the applicant’s utterance linguistically and put it into context. It concluded that it could, objectively, only be understood as a denial of the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich (or at least the extent thereof), as reported by historians, and that the applicant’s motive was to allege the suppression and exploitation of Germany for the benefit of the Jews.", "44. That finding by the domestic courts was based on an assessment of the facts with which the Court can agree. It cannot accept, in particular, the applicant’s argument that the domestic courts wrongfully selected a small part of his speech, viewed it in isolation and based his conviction on that small part. The contrary is true. The Regional Court cited and assessed the applicant’s speech in full. It clarified that large parts of his speech, in which he had referred to “German” victims in the Second World War, did not raise an issue under criminal law, and that he could rely on his right to freedom of expression in so far as he had criticised the remembrance of the victims of National Socialism and used very strong language to that end (see paragraph 12 above). The Court notes that the applicant’s statements concerning the remembrance of the victims of National Socialism were linked to an ongoing debate within Parliament, whereas the statements containing a qualified Holocaust denial, which led to the applicant’s criminal conviction, were not. The latter aspect constitutes an important difference to the case of Kurłowicz v. Poland (no. 41029/06, 22 June 2010), where the impugned offensive statements had been an integral part of a political debate.", "45. The Regional Court found that the applicant had chosen the subject of Wilhelm Gustloff by way of a contrast to the previous day’s memorial event for victims of the Holocaust (which the applicant and members of his Parliamentary group did not attend). The Court considers that the gist of the Regional Court’s reasoning (see paragraph 43 above) was threefold: the applicant inserted the qualified Holocaust denial into his speech, large parts of which did not raise an issue under criminal law, as if inserting “poison into a glass of water, hoping that it would not be detected immediately”; the parts of his speech that did not raise an issue under criminal law could not mitigate, conceal or whitewash the qualified Holocaust denial; and he wanted to convey his message exactly in the way that it was understood by the Regional Court, in the view of an objective observer.", "46. The Court attaches fundamental importance to the fact that the applicant planned his speech in advance, deliberately choosing his words (compare and contrast Otegi Mondragon v. Spain (no. 2034/07, § 54, ECHR 2011) and resorting to obfuscation to get his message across: a qualified Holocaust denial showing disdain towards the victims of the Holocaust and running counter to established historical facts, alleging that the representatives of the “so-called” democratic parties were using the Holocaust to suppress and exploit Germany. It is with reference to this aspect of the applicant’s case that Article 17 of the Convention has an important role to play, regardless of Article 10 being deemed applicable (see paragraphs 36-37 above). The Court considers that the applicant sought to use his right to freedom of expression with the aim of promoting ideas contrary to the text and spirit of the Convention. This weighs heavily in the assessment of the necessity of the interference (see Perinçek, cited above, §§ 209-212).", "47. While interferences with the right to freedom of expression call for the closest scrutiny when they concern statements made by elected representatives in Parliament, utterances in such scenarios deserve little, if any, protection if their content is at odds with the democratic values of the Convention system. The exercise of freedom of expression, even in Parliament, carries with it “duties and responsibilities” referred to in Article 10 § 2 of the Convention (see Karácsony and Others, cited above, § 139). Parliamentary immunity offers, in this context, enhanced, but not unlimited, protection to speech in Parliament (ibid.).", "48. In the present case, the applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis (see Perinçek, cited above, §§ 242-243, with further references; see also Nix v. Germany (dec.), no. 35285/16, 13 March 2018), the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”.", "49. In these circumstances the Court finds that there is no appearance of a violation of Article 10 of the Convention. Accordingly the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "50. The applicant complained of a violation of his right to an impartial tribunal, as guaranteed by Article 6 § 1 of the Convention, alleging that the Court of Appeal had lacked impartiality in the light of the involvement of judge X. Article 6 § 1 of the Convention, insofar as relevant, reads as follows:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”", "51. The Government contested that argument.", "A. Admissibility", "52. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "53. The applicant alleged a breach of Article 6 § 1 of the Convention because X had been part of the Court of Appeal formation that had dismissed the applicant’s appeal on points of law, despite the applicant’s challenge against him on the basis of X’s marriage to District Court judge Y. If the Court of Appeal had allowed the applicant’s appeal on points of law, this would have entailed, at least indirectly, criticism of the judgment delivered by the District Court. Given their marriage, X may have been hesitant to so criticise his wife, who had convicted the applicant at first instance. This bias was reinforced by the fact that the married couple had discussed the proceedings against the applicant. Moreover, it had been unlawful for X to participate in the decision on the complaint of bias against him. This defect in the decision of 16 August 2013 was not remedied by the subsequent review decision of 11 November 2013.", "54. The Government maintained that there were no indications that Court of Appeal judge X had been biased, nor had there been any appearance to that effect. The judgment of the District Court, rendered by X’s wife and two lay judges, had not been reviewed by the Court of Appeal, which had only examined the Regional Court’s appellate judgment in connection with the applicant’s appeal on points of law. There were no indications that X, when exercising his judicial function, had adopted his wife’s legal views without making an assessment himself. It was in accordance with domestic law that X had participated in reaching a decision on the complaint of bias against him. The Government added that the Court’s recent case-law did not require the impugned judgment to be quashed in order for an impartiality defect to be remedied.", "2. The Court’s assessment", "(a) General principles", "55. The Court reiterates at the outset that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused ( Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII K). To that end Article 6 requires a tribunal to be impartial (ibid.). Impartiality normally denotes the absence of prejudice or bias, and its existence or otherwise can be tested in various ways. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test whereby regard must be had to the personal conviction and behaviour of a particular judge, that is whether the judge in question held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality. In the vast majority of cases raising impartiality issues the Court has focused on the objective test, which requires a determination of whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. The objective test mostly concerns hierarchical or other links between the judge and other protagonists in the proceedings. It must therefore be decided in each individual case whether the relationship in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal. In this connection, even appearances may have a certain importance, or, in other words, “justice must not only be done, it must also be seen to be done” (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 145-149, 6 November 2018, with further references).", "56. As regards “other links” between a judge and other protagonists in a set of proceedings, the Court has previously found objectively justified doubts as to the impartiality of a trial court’s presiding judge whose husband was the head of the team of investigators dealing with the applicants’ case (see Dorozhko and Pozharskiy v. Estonia, nos. 14659/04 and 16855/04, §§ 56-58, 24 April 2008).", "57. The national procedures for ensuring impartiality are a relevant factor which the Court takes into account when making its assessment as to whether a tribunal was impartial and, in particular, whether the applicant’s fears can be held to be objectively justified (see Micallef v. Malta [GC], no. 17056/06, § 99, ECHR 2009). The Court previously found that an applicant’s doubts in respect of the impartiality of judges dealing with his case were objectively justified in view of the procedure they chose to reject his complaint of bias against them, despite considering that the grounds advanced by the applicant for the alleged bias were not sufficient to raise legitimate and objectively justified doubts as to the judges’ impartiality (see A.K. v. Liechtenstein, no. 38191/12, §§ 74 et seq., 9 July 2015). However, in that case, which concerned motions for bias against five constitutional court judges, the constitutional court had decided on each motion in a formation composed of the four remaining judges, each of whom had equally been challenged (ibid., § 77) and in circumstances where, therefore, they all had decided upon motions brought against all of them on identical grounds (ibid., § 79).", "(b) Application of these principles to the present case", "58. The present case differs from Dorozhko and Pozharskiy (cited above) in so far as the marriage in question did not exist between a judge and a (member of a) party to the proceedings, but between two judges dealing with the same case at different levels of jurisdiction.", "59. In this respect, the Court notes that the case-law of the domestic courts suggests that a marriage between judges at different levels of jurisdiction that immediately follow one another – that is to say where one spouse, as the judge at a higher level of jurisdiction, is called upon to assess the judgment or decision of the other spouse, who had acted as a judge at a lower level of jurisdiction – may raise objectively justified doubts as to the impartiality of the deciding judge (see paragraph 30 above).", "60. In the present case, however, the Court of Appeal acted at third instance in the criminal proceedings against the applicant, whereas the District Court acted at first instance. In accordance with domestic law, the Regional Court, which dealt with the applicant’s appeal on fact and law, conducted a main appellate hearing, during which it took evidence and comprehensively established the facts of the case anew (see paragraphs 8 and 19 above). In respect of the applicant’s appeal on points of law, the Court of Appeal was only called upon to examine the Regional Court’s judgment.", "61. Judge X was thus not called to assess the first-instance judgment, in which his wife had been involved. As the Regional Court established the circumstances of the case anew, both in fact and in law, the Court of Appeal’s review was limited to the Regional Court’s judgment, although in substance it took position on the same issues as the District Court. The Court sees no reason to doubt X’s statement that his wife had informed him about the course of the proceedings before the District Court, but that the proceedings had – in line with their general practice – not formed part of their conversations apart from that (see paragraph 18 above). Nonetheless, the fact that X and Y were married and dealt with the applicant’s case at different levels of jurisdiction may give rise to doubts as to X’s impartiality.", "62. As regards the procedure for ensuring impartiality, the Court of Appeal decided, by the same order, on the applicant’s complaint of bias and on his appeal on points of law, and X took part in deciding both. Under domestic law, it would not only have been possible (see A.K. v. Liechtenstein, cited above, § 83) to decide on the complaint of bias against X without his participation, but it would even have constituted the default approach stipulated by the legislature (see paragraph 31 above). The objective pursued by the (exceptional) procedure under Article 26a of the Code of Criminal Procedure is to avoid courts having to interrupt or even stay proceedings in order for abusive or irrelevant challenges to be examined (see paragraph 31 above) – which is legitimate in the interest of proper administration of justice (see A.K. v. Liechtenstein, cited above, § 68) and in respect of which parallels can be drawn to the participation of judges in proceedings in respect of contempt of court committed before them, which may be compatible with the Convention in exceptional circumstances (compare Kyprianou, cited above, §§ 124-25; see also Słomka v. Poland, no. 68924/12, 6 December 2018).", "63. While it is not for the Court to interpret domestic law, it is difficult to understand how the applicant’s bias complaint against X could be deemed “completely ill-suited”. As indicated above, X’s wife had informed him about the course of the proceedings before the District Court. The Court finds that the applicant’s complaint of bias against X could not be considered as abusive or irrelevant as there might have been an appearance of lack of impartiality (see A.K. v. Liechtenstein, cited above, § 80; contrast Debled v. Belgium, 22 September 1994, § 37, Series A no. 292 ‑ B). X’s participation in the decision of 16 August 2013 on the bias complaint against him did not help dissipate what doubts there may have been.", "64. However, the Court of Appeal subsequently sat as a bench of three judges – of whom none had been involved in the decision of 16 August 2013 or any other previous decision in this case – and dismissed a bias complaint against judge X and the other two judges involved. That complaint had again been founded on the same ground, namely the marriage between X and Y, although this time it was not only directed against X, but also against the other two judges because of their involvement in rejecting his first bias complaint. This – second – decision was taken after an examination of the applicant’s complaint on the merits (see paragraphs 23 ‑ 25 above).", "65. The Court has previously found that a lack of impartiality in criminal proceedings had not been remedied in cases where a higher court had not quashed the lower court’s judgment adopted by a judge or tribunal lacking impartiality (see Kyprianou, cited above, § 134, with further references). Unlike in the present case, where the objective justification of the applicant’s doubt in respect of the judges dealing with his appeal on points of law primarily results from the procedure they chose to reject the bias complaint against them, the impartiality defects in earlier cases were either more severe (objective and subjective bias found in Kyprianou, cited above, §§ 128 and 133; fundamental flaws in the court-martial system in Findlay v. the United Kingdom, 25 February 1997, §§ 78-79, Reports of Judgments and Decisions 1997 ‑ I; the composition of the first-instance court and matters of internal organisation in De Cubber v. Belgium, 26 October 1984, § 33, Series A no. 86) or the subsequent decisions did not give substantive arguments in response to the applicant’s complaint of bias, thus not remedying the defect ( Boyan Gospodinov v. Bulgaria, no. 28417/07, §§ 58 ‑ 59, 5 April 2018).", "66. The Court also has regard to its judgment in Vera Fernández ‑ Huidobro v. Spain (no. 74181/01, §§ 131-136, 6 January 2010), where it found that the defects of the initial investigation against the applicant due to the lack of impartiality of the first investigating judge had been remedied by the fresh investigation conducted by an investigating judge from a higher court (the Supreme Court), despite the applicant’s conviction by the Supreme Court, the single level of jurisdiction at the which the applicant had been tried. In Crompton v. the United Kingdom (no. 42509/05, §§ 76-79, 27 October 2009), which concerned the civil limb of Article 6 of the Convention, the Court found that the higher instance had “sufficiency of review” to ensure that the requirements of Article 6 of the Convention regarding the independence and impartiality of the tribunal were met, and notably to remedy any lack of independence of the lower instance, even though it could not make a substantive ruling as to an appropriate award in the circumstances of the case. The Court deemed it sufficient that the higher instance could and did examine both the method of calculation and the base figures used for the calculation and, in the applicant’s case, had found the base figure to be inaccurate and required the lower instance to review the calculation.", "67. In the present case, the subsequent review decision of 11 November 2013 was not rendered by a higher court, but rather by a bench of three judges of the same court who had not been involved in any previous decisions in the applicant’s case. The review decision did not entail a full assessment of either the applicant’s appeal on points of law or the decision of 16 August 2013 dismissing it as ill-founded, but was limited to the question of whether the judges involved in the decision of 16 August 2013 had been biased. However, if the review decision had been rendered in the applicant’s favour, the applicant’s motion to be heard would subsequently have had to be adjudicated by other judges (see paragraph 32 above). It was thus submitted to a subsequent control of a judicial body with sufficient jurisdiction and offering the guarantees of Article 6 of the Convention ( Vera Fernández-Huidobro, cited above, § 131). The present case differs from A.K. v. Liechtenstein (cited above), where the defect at issue similarly related to the choice of procedure for adjudicating the bias complaint, since there had not been any subsequent review of the bias complaint in that case and the judges had been deciding on bias complaints brought against all of them on identical grounds (see paragraph 57 above).", "68. Lastly, the applicant had not given any concrete arguments why a professional judge – being married to another professional judge – should be biased when deciding on the same case at a different level of jurisdiction which did not, moreover, entail review of the spouse’s decision, and the Court of Appeal gave sufficient arguments in its decision of 11 November 2013 in response to the applicant’s submissions ( a contrario Boyan Gospodinov, cited above, §§ 58-59).", "69. In these circumstances the Court finds that the participation of the judge X in the decision on the bias complaint against him was remedied by the subsequent assessment, on the merits, of the bias complaint, for which the applicant had advanced the same ground, by a separate panel of judges of the same court on 11 November 2013.", "70. The Court thus concludes that there have not been objectively justified doubts as to the Court of Appeal’s impartiality. Accordingly, there has been no violation of Article 6 § 1 of the Convention." ]

[ "I. THE PARTICULAR CIRCUMSTANCES OF THE CASE", "9. Mr Jens Olaf Jersild, a Danish national, is a journalist and lives in Copenhagen. He was at the time of the events giving rise to the present case, and still is, employed by Danmarks Radio (Danish Broadcasting Corporation, which broadcasts not only radio but also television programmes), assigned to its Sunday News Magazine ( Søndagsavisen ). The latter is known as a serious television programme intended for a well-informed audience, dealing with a wide range of social and political issues, including xenophobia, immigration and refugees.", "A. The Greenjackets item", "10. On 31 May 1985 the newspaper Information published an article describing the racist attitudes of members of a group of young people, calling themselves \"the Greenjackets\" (\" grønjakkerne \"), at Østerbro in Copenhagen. In the light of this article, the editors of the Sunday News Magazine decided to produce a documentary on the Greenjackets. Subsequently the applicant contacted representatives of the group, inviting three of them together with Mr Per Axholt, a social worker employed at the local youth centre, to take part in a television interview. During the interview, which was conducted by the applicant, the three Greenjackets made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. It lasted between five and six hours, of which between two and two and a half hours were video-recorded. Danmarks Radio paid the interviewees fees in accordance with its usual practice.", "11. The applicant subsequently edited and cut the film of the interview down to a few minutes. On 21 July 1985 this was broadcast by Danmarks Radio as a part of the Sunday News Magazine. The programme consisted of a variety of items, for instance on the martial law in South Africa, on the debate on profit-sharing in Denmark and on the late German writer Heinrich Böll. The transcript of the Greenjackets item reads as follows [(I): TV presenter; (A): the applicant; (G): one or other of the Greenjackets ]:", "(I) \"In recent years, a great deal has been said about racism in Denmark. The papers are currently publishing stories about distrust and resentment directed against minorities. Who are the people who hate the minorities? Where do they come from? What is their mentality like? Mr Jens Olaf Jersild has visited a group of extremist youths at Østerbro in Copenhagen.", "(A) The flag on the wall is the flag of the Southern States from the American Civil War, but today it is also the symbol of racism, the symbol of the American movement, the Ku Klux Klan, and it shows what Lille Steen, Henrik and Nisse are.", "Are you a racist?", "(G) Yes, that ’ s what I regard myself as. It ’ s good being a racist. We believe Denmark is for the Danes.", "(A) Henrik, Lille Steen and all the others are members of a group of young people who live in Studsgårdsgade, called STUDSEN, in Østerbro in Copenhagen. It is public housing, a lot of the inhabitants are unemployed and on social security; the crime rate is high. Some of the young people in this neighbourhood have already been involved in criminal activities and have already been convicted.", "(G) It was an ordinary armed robbery at a petrol station.", "(A) What did you do?", "(G) Nothing. I just ran into a petrol station with a ... gun and made them give me some money. Then I ran out again. That ’ s all.", "(A) What about you, what happened?", "(G) I don ’ t wish to discuss that further.", "(A) But, was it violence?", "(G) Yes.", "(A) You have just come out of ... you have been arrested, what were you arrested for?", "(G) Street violence.", "(A) What happened?", "(G) I had a little fight with the police together with some friends.", "(A) Does that happen often?", "(G) Yes, out here it does.", "(A) All in all, there are 20-25 young people from STUDSEN in the same group.", "They meet not far away from the public housing area near some old houses which are to be torn down. They meet here to reaffirm among other things their racism, their hatred of immigrants and their support for the Ku Klux Klan.", "(G) The Ku Klux Klan, that ’ s something that comes from the States in the old days during - you know - the civil war and things like that, because the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals, right, it ’ s completely wrong, man, the things that happened. People should be allowed to keep slaves, I think so anyway.", "(A) Because blacks are not human beings?", "(G) No, you can also see that from their body structure, man, big flat noses, with cauliflower ears etc., man. Broad heads and very broad bodies, man, hairy, you are looking at a gorilla and compare it with an ape, man, then it is the same [behaviour], man, it ’ s the same movements, long arms, man, long fingers etc., long feet.", "(A) A lot of people are saying something different. There are a lot of people who say, but ...", "(G) Just take a picture of a gorilla, man, and then look at a nigger, it ’ s the same body structure and everything, man, flat forehead and all kinds of things.", "(A) There are many blacks, for example in the USA, who have important jobs.", "(G) Of course, there is always someone who wants to show off, as if they are better than the white man, but in the long run, it ’ s the white man who is better.", "(A) What does Ku Klux Klan mean to you?", "(G) It means a great deal, because I think what they do is right. A nigger is not a human being, it ’ s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called.", "(A) Henrik is 19 years old and on welfare. He lives in a rented room in Studsgårdsgade. Henrik is one of the strongest supporters of the Klan, and he hates the foreign workers, ‘ Perkere ’ [a very derogatory word in Danish for immigrant workers].", "(G) They come up here, man, and sponge on our society. But we, we have enough problems in getting our social benefits, man, they just get it. Fuck, we can argue with those idiots up there at the social benefit office to get our money, man, they just get it, man, they are the first on the housing list, they get better flats than us, man, and some of our friends who have children, man, they are living in the worst slum, man, they can ’ t even get a shower in their flat, man, then those ‘ Perkere ’ -families, man, go up there with seven kids, man, and they just get an expensive flat, right there and then. They get everything paid, and things like that, that can ’ t be right, man, Denmark is for the Danes, right?", "It is the fact that they are ‘ Perkere ’, that ’ s what we don ’ t like, right, and we don ’ t like their mentality - I mean they can damn well, I mean ... what ’ s it called ... I mean if they feel like speaking Russian in their homes, right, then it ’ s okay, but what we don ’ t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street, and if you ask them something or if you get into one of their taxis then they say: I don ’ t know where it is, you give directions right.", "(A) Is it not so that perhaps you are a bit envious that some of the ‘ Perkere ’ as you call them have their own shops, and cars, they can make ends ...", "(G) It ’ s drugs they are selling, man, half of the prison population in ‘ Vestre ’ are in there because of drugs, man, half of those in Vestre prison anyway, they are the people who are serving time for dealing drugs or something similar.", "They are in there, all the ‘ Perkere ’, because of drugs, right. [That] must be enough, what ’ s it called, there should not be drugs here in this country, but if it really has to be smuggled in, I think we should do it ourselves, I mean, I think it ’ s unfair that those foreigners come up here to ... what ’ s it called ... make Denmark more drug dependent and things like that.", "We have painted their doors and hoped that they would get fed up with it, so that they would soon leave, and jumped on their cars and thrown paint in their faces when they were lying in bed sleeping.", "(A) What was it you did with that paint - why paint?", "(G) Because it was white paint, I think that suited them well, that was the intended effect.", "(A) You threw paint through the windows of an immigrant family?", "(G) Yes.", "(A) What happened?", "(G) He just got it in his face, that ’ s all. Well, I think he woke up, and then he came out and shouted something in his hula-hula language.", "(A) Did he report it to the police?", "(G) I don ’ t know if he did, I mean, he won ’ t get anywhere by doing that.", "(A) Why not?", "(G) I don ’ t know, it ’ s just kid ’ s stuff, like other people throwing water in people ’ s faces, he got paint in his. They can ’ t make anything out of that.", "---", "(A) Per Axholt, known as ‘ Pax ’ [(P)], is employed in the youth centre in Studsgårdsgade. He has worked there for several years, but many give up a lot sooner because of the tough environment. Per Axholt feels that the reasons why the young people are persecuting the immigrants is that they are themselves powerless and disappointed.", "What do you think they would say that they want, if you asked them?", "(P) Just what you and I want. Some control over their lives, work which may be considered decent and which they like, a reasonable economic situation, a reasonably functioning family, a wife or a husband and some children, a reasonable middle-class life such as you and I have.", "(A) They do many things which are sure to prevent them from getting it.", "(P) That is correct.", "(A) Why do you think they do this?", "(P) Because they have nothing better to do. They have been told over a long period that the means by which to achieve success is money. They won ’ t be able to get money legitimately, so often they try to obtain it through criminal activity. Sometimes they succeed, sometimes not, and that ’ s why we see a lot of young people in that situation go to prison, because it doesn ’ t work.", "---", "(A) How old were you when you started your criminal activities?", "(G) I don ’ t know, about 14 I guess.", "(A) What did you do?", "(G) The first time, I can ’ t remember, I don ’ t know, burglary.", "(A) Do you have what one might call a criminal career?", "(G) I don ’ t know if you can call it that.", "(A) You committed your first crime when you were 14.", "(G) Well, you can put it that way, I mean, if that is a criminal career. If you have been involved in crime since the age of 15 onwards, then I guess you can say I ’ ve had a criminal career.", "(A) Will you tell me about some of the things you have done?", "(G) No, not really. It ’ s been the same over and over again. There has been pinching of videos, where the ‘ Perkere ’ have been our customers, so they have money. If people want to be out here and have a nice time and be racists and drink beer, and have fun, then it ’ s quite obvious you don ’ t want to sit in the slammer.", "(A) But is the threat of imprisonment something that really deters people from doing something illegal?", "(G) No, it ’ s not prison, that doesn ’ t frighten people.", "(A) Is that why you hear stories about people from out here fighting with knives etc., night after night. Is the reason for this the fact that they are not afraid of the police getting hold of them?", "(G) Yes, nothing really comes of it, I mean, there are no bad consequences, so probably that ’ s why. For instance fights and stabbings and smashing up things ... If you really get into the joint it would be such a ridiculously small sentence, so it would be, I mean ... usually we are released the next day. Last time we caused some trouble over at the pub, they let us out the next morning. Nothing really comes of it. It doesn ’ t discourage us, but there were five of us, who just came out and then we had a celebration for the last guy, who came out yesterday, they probably don ’ t want to go in again for some time so they probably won ’ t commit big crimes again.", "(A) You would like to move back to Studsgårdsgade where you grew up, but we know for sure that it ’ s an environment with a high crime rate. Would you like your child to grow up like you?", "(G) No, and I don ’ t think she will. Firstly, because she is a girl, statistics show that the risk is not that high, I mean they probably don ’ t do it, but you don ’ t have to be a criminal because you live in an environment with a high crime rate. I just wouldn ’ t accept it, if she was mugging old women and stealing their handbags.", "(A) What if she was among those beating up the immigrants etc. What then?", "(G) That would be okay. I wouldn ’ t have anything against that.", "---", "(I) We will have to see if the mentality of this family changes in the next generation. Finally, we would like to say that groups of young people like this one in STUDSEN at Østerbro, have been formed elsewhere in Copenhagen .\"", "B. Proceedings in the City Court of Copenhagen", "12. Following the programme no complaints were made to the Radio Council, which had competence in such matters, or to Danmarks Radio but the Bishop of Ålborg complained to the Minister of Justice. After undertaking investigations the Public Prosecutor instituted criminal proceedings in the City Court of Copenhagen ( Københavns Byret ) against the three youths interviewed by the applicant, charging them with a violation of Article 266 (b) of the Penal Code ( straffeloven ) (see paragraph 19 below) for having made the statements cited below:", "\"... the Northern States wanted that the niggers should be free human beings, man, they are not human beings, they are animals.\"", "\"Just take a picture of a gorilla, man, and then look at a nigger, it ’ s the same body structure and everything, man, flat forehead and all kinds of things.\"", "\"A nigger is not a human being, it ’ s an animal, that goes for all the other foreign workers as well, Turks, Yugoslavs and whatever they are called.\"", "\"It is the fact that they are ‘ Perkere ’, that ’ s what we don ’ t like, right, and we don ’ t like their mentality ... what we don ’ t like is when they walk around in those Zimbabwe-clothes and then speak this hula-hula language in the street ...\"", "\"It ’ s drugs they are selling, man, half of the prison population in ‘ Vestre ’ are in there because of drugs ... they are the people who are serving time for dealing drugs ...\"", "\"They are in there, all the ‘ Perkere ’, because of drugs ...\"", "The applicant was charged, under Article 266 (b) in conjunction with Article 23 (see paragraph 19 below), with aiding and abetting the three youths; the same charge was brought against the head of the news section of Danmarks Radio, Mr Lasse Jensen.", "13. In the City Court counsel for the applicant and Mr Jensen called for their acquittal. He argued that the conduct of the applicant and Mr Jensen could in no way be compared to that of the other three defendants, with whose views they did not sympathise. They sought merely to provide a realistic picture of a social problem; in fact the programme only provoked resentment and aroused pity in respect of the three other defendants, who had exposed themselves to ridicule on their own terms. Accordingly, it was by no means the intention of Danmarks Radio to persuade others to subscribe to the same views as the Greenjackets, rather the contrary. Under the relevant law a distinction had to be drawn between the persons who made the statements and the programme editors, the latter enjoying a special freedom of expression. Having at that time a broadcasting monopoly, Danmarks Radio was under a duty to impart all opinions of public interest in a manner that reflected the speaker ’ s way of expressing himself. The public also had an interest in being informed of notoriously bad social attitudes, even those which were unpleasant. The programme was broadcast in the context of a public debate which had resulted in press comments, for instance in Information, and was simply an honest report on the realities of the youths in question. Counsel, referring inter alia to the above-mentioned article in Information, also pointed to the fact that no consistent prosecution policy had been followed in cases of this nature.", "14. On 24 April 1987 the City Court convicted the three youths, one of them for having stated that \"niggers\" and \"foreign workers\" were \"animals\", and two of them for their assertions in relation to drugs and\" Perkere \". The applicant was convicted of aiding and abetting them, as was Mr Jensen, in his capacity as programme controller; they were sentenced to pay day-fines ( dagsbøder ) totalling 1,000 and 2,000 Danish kroner, respectively, or alternatively to five days ’ imprisonment ( hæfte ).", "As regards the applicant, the City Court found that, following the article in Information of 31 May 1985, he had visited the Greenjackets and after a conversation with Mr Axholt, amongst others, agreed that the three youths should participate in a television programme. The object of the programme had been to demonstrate the attitude of the Greenjackets to the racism at Østerbro, previously mentioned in the article in Information, and to show their social background. Accordingly, so the City Court held, the applicant had himself taken the initiative of making the television programme and, further, he had been well aware in advance that discriminatory statements of a racist nature were likely to be made during the interview. The interview had lasted several hours, during which beer, partly paid for by Danmarks Radio, was consumed. In this connection the applicant had encouraged the Greenjackets to express their racist views, which, in so far as they were broadcast on television, in itself constituted a breach of Article 266 (b) of the Penal Code. The statements were broadcast without any counterbalancing comments, after the recordings had been edited by the applicant. He was accordingly guilty of aiding and abetting the violation of Article 266 (b).", "C. Proceedings in the High Court of Eastern Denmark", "15. The applicant and Mr Jensen, but not the three Greenjackets, appealed against the City Court ’ s judgment to the High Court of Eastern Denmark ( Østre Landsret ). They essentially reiterated the submissions made before the City Court and, in addition, the applicant explained that, although he had suspected that the Greenjackets ’ statements were punishable, he had refrained from omitting these from the programme, considering it crucial to show their actual attitude. He assumed that they were aware that they might incur criminal liability by making the statements and had therefore not warned them of this fact.", "16. By judgment of 16 June 1988 the High Court, by five votes to one, dismissed the appeal.", "The dissenting member was of the view that, although the statements by the Greenjackets constituted offences under Article 266 (b) of the Penal Code, the applicant and Mr Jensen had not transgressed the bounds of the freedom of speech to be enjoyed by television and other media, since the object of the programme was to inform about and animate public discussion on the particular racist attitudes and social background of the youth group in question.", "D. Proceedings in the Supreme Court", "17. With leave the applicant and Mr Jensen appealed from the High Court judgment to the Supreme Court ( Højesteret ), which by four votes to one dismissed the appeal in a judgment of 13 February 1989. The majority held:", "\"The defendants have caused the publication of the racist statements made by a narrow circle of persons and thereby made those persons liable to punishment and have thus, as held by the City Court and the High Court, violated Article 266 (b) in conjunction with Article 23 of the Penal Code. [We] do not find that an acquittal of the defendants could be justified on the ground of freedom of expression in matters of public interest as opposed to the interest in the protection against racial discrimination. [We] therefore vote in favour of confirming the judgment [appealed from].\"", "Justice Pontoppidan stated in his dissent:", "\"The object of the programme was to contribute to information on an issue - the attitude towards foreigners - which was the subject of extensive and sometimes emotional public debate. The programme must be presumed to have given a clear picture of the Greenjackets ’ views, of which the public was thus given an opportunity to be informed and form its own opinion. In view of the nature of these views, any counterbalancing during or immediately before or after would not have served a useful purpose. Although it concerned a relatively small group of people holding extreme views, the programme had a fair degree of news and information value. The fact that the defendants took the initiative to disseminate such views is not of paramount importance for the assessment of their conduct. In these circumstances and irrespective of the fact that the statements rightly have been found to be in violation of Article 266 (b), I question the advisability of finding the defendants guilty of aiding and abetting the violation of this provision. I therefore vote in favour of the defendants ’ acquittal.\"", "18. When the Supreme Court has rendered judgment in a case raising important issues of principle it is customary that a member of the majority publishes a detailed and authoritative statement of the reasons for the judgment. In keeping with this custom, Justice Hermann on 20 January 1990 published such a statement in the Weekly Law Journal ( Ugeskrift for Retsvæsen, 1989, p. 399).", "As regards the conviction of the applicant and Mr Jensen, the majority had attached importance to the fact that they had caused the racist statements to be made public. The applicant ’ s item had not been a direct report on a meeting. He had himself contacted the three youths and caused them to make assertions such as those previously made in Information, which he knew of and probably expected them to repeat. He had himself cut the recording of the interview, lasting several hours, down to a few minutes containing the crude comments. The statements, which would hardly have been punishable under Article 266 (b) of the Penal Code had they not been made to a wide circle (\" videre kreds \") of people, became clearly punishable as they were broadcast on television on the applicant ’ s initiative and with Mr Jensen ’ s approval. It was therefore beyond doubt that they had aided and abetted the dissemination of the statements.", "Acquitting the applicant and Mr Jensen could only be justified by reasons clearly outweighing the wrongfulness of their actions. In this connection, the interest in protecting those grossly insulted by the statements had to be weighed up against that of informing the public of the statements. Whilst it is desirable to allow the press the best possible conditions for reporting on society, press freedom cannot be unlimited since freedom of expression is coupled with responsibilities.", "In striking a balance between the various interests involved, the majority had regard to the fact that the statements, which were brought to a wide circle of people, consisted of series of inarticulate, defamatory remarks and insults spoken by members of an insignificant group whose opinions could hardly be of interest to many people. Their news or information value was not such as to justify their dissemination and therefore did not warrant acquitting the defendants. This did not mean that extremist views could not be reported in the press, but such reports must be carried out in a more balanced and comprehensive manner than was the case in the television programme in question. Direct reports from meetings which were a matter of public interest should also be permitted.", "The minority, on the other hand, considered that the right to information overrode the interests protected by Article 266 (b) of the Penal Code.", "Finally, Justice Hermann noted that the compatibility of the impugned measures with Article 10 (art. 10) of the Convention was not raised during the trial.", "III. INSTRUMENTS OF THE UNITED NATIONS", "21. Provisions relating to the prohibition of racial discrimination and the prevention of propaganda of racist views and ideas are to be found in a number of international instruments, for example the 1945 United Nations Charter (paragraph 2 of the Preamble, Articles 1 para. 3, 13 para. 1 (b), 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7) and the 1966 International Covenant on Civil and Political Rights (Articles 2 para. 1, 20 para. 2 and 26). The most directly relevant treaty is the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (\"the UN Convention\"), which has been ratified by a large majority of the Contracting States to the European Convention, including Denmark (9 December 1971). Articles 4 and 5 of that Convention provide:", "Article 4", "\"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia:", "(a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;", "...\"", "Article 5", "\"In compliance with the fundamental obligation laid down in ... this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:", "...", "(d) ...", "viii. the right to freedom of opinion and expression;", "...\"", "The effects of the \"due regard\" clause in Article 4 has given rise to differing interpretations and the UN Committee on the Elimination of Racial Discrimination (\"the UN Committee\" - set up to supervise the implementation of the UN Convention) was divided in its comments on the applicant ’ s conviction. The present case had been presented by the Danish Government in a report to the UN Committee. Whilst some members welcomed it as \"the clearest statement yet, in any country, that the right to protection against racial discrimination took precedence over the right to freedom of expression\", other members considered that \"in such cases the facts needed to be considered in relation to both rights\" (Report of the Committee to the General Assembly, Official Records, Forty-Fifth Session, Supplement No. 18 (A/45/18), p. 21, para. 56)." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Penal Code", "19. At the relevant time Article 266 (b) of the Penal Code provided:", "\"Any person who, publicly or with the intention of disseminating it to a wide circle (\" videre kreds \") of people, makes a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years.\"", "Article 23, paragraph 1, reads:", "\"A provision establishing a criminal offence shall apply to any person who has assisted the commission of the offence by instigation, advice or action. The punishment may be reduced if the person in question only intended to give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been completed or an intended assistance failed.\"", "B. The 1991 Media Liability Act", "20. The 1991 Media Liability Act ( Medieansvarsloven, 1991:348), which entered into force on 1 January 1992, that is after the events giving rise to the present case, lays down rules inter alia on criminal liability in respect of television broadcasts. Section 18 provides:", "\"A person making a statement during a non-direct broadcast ( forskudt udsendelse ) shall be responsible for the statement under general statutory provisions, unless:", "(1) the identity of the person concerned does not appear from the broadcast; or", "(2) [that person] has not consented to the statement being broadcast; or", "(3) [he or she] has been promised that [he or she] may take part [in the broadcast] without [his or her] identity being disclosed and reasonable precautions have been taken to this effect.", "In the situations described in paragraph 1, sub-paragraphs (1) to (3) above, the editor is responsible for the contents of the statements even where a violation of the law has occurred without intent or negligence on his part ...\"", "Pursuant to section 22:", "\"A person who reads out or in any other manner conveys a text or statement, is not responsible for the contents of that text or statement.\"", "PROCEEDINGS BEFORE THE COMMISSION", "22. In his application (no. 15890/89) of 25 July 1989 to the Commission the applicant complained that his conviction violated his right to freedom of expression under Article 10 (art. 10) of the Convention.", "23. On 8 September 1992 the Commission declared the application admissible. In its report of 8 July 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 10 (art. 10) (by twelve votes to four).", "The full text of the Commission ’ s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT", "24. At the hearing on 20 April 1994 the Government invited the Court to hold that, as submitted in their memorial, there had been no violation of Article 10 (art. 10) of the Convention.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "25. The applicant maintained that his conviction and sentence for having aided and abetted the dissemination of racist remarks violated his right to freedom of expression within the meaning of Article 10 (art. 10) of the Convention, which reads:", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "26. The Government contested this contention whereas the Commission upheld it.", "27. It is common ground that the measures giving rise to the applicant ’ s case constituted an interference with his right to freedom of expression.", "It is moreover undisputed that this interference was \"prescribed by law\", the applicant ’ s conviction being based on Articles 266 (b) and 23 (1) of the Penal Code. In this context, the Government pointed out that the former provision had been enacted in order to comply with the UN Convention. The Government ’ s argument, as the Court understands it, is that, whilst Article 10 (art. 10) of the Convention is applicable, the Court, in applying paragraph 2 (art. 10-2), should consider that the relevant provisions of the Penal Code are to be interpreted and applied in an extensive manner, in accordance with the rationale of the UN Convention (see paragraph 21 above). In other words, Article 10 (art. 10) should not be interpreted in such a way as to limit, derogate from or destroy the right to protection against racial discrimination under the UN Convention.", "Finally it is uncontested that the interference pursued a legitimate aim, namely the \"protection of the reputation or rights of others\".", "The only point in dispute is whether the measures were \"necessary in a democratic society\".", "28. The applicant and the Commission were of the view that, notwithstanding Denmark ’ s obligations as a Party to the UN Convention (see paragraph 21 above), a fair balance had to be struck between the \"protection of the reputation or rights of others\" and the applicant ’ s right to impart information. According to the applicant, such a balance was envisaged in a clause contained in Article 4 of the UN Convention to the effect that \"due regard\" should be had to \"the principles in the Universal Declaration of Human Rights and the rights ... in Article 5 of [the UN] Convention\". The clause had been introduced at the drafting stage because of concern among a number of States that the requirement in Article 4 (a) that \"[States Parties] shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred\" was too sweeping and could give rise to difficulties with regard to other human rights, in particular the right to freedom of opinion and expression. In the applicant ’ s further submission, this explained why the Committee of Ministers of the Council of Europe, when urging member States to ratify the UN Convention, had proposed that they add an interpretative statement to their instrument of ratification, which would, inter alia, stress that respect was also due for the rights laid down in the European Convention (Resolution (68) 30 adopted by the Ministers ’ Deputies on 31 October 1968).", "The applicant and the Commission emphasised that, taken in the context of the broadcast as a whole, the offending remarks had the effect of ridiculing their authors rather than promoting their racist views. The overall impression of the programme was that it sought to draw public attention to a matter of great public concern, namely racism and xenophobia. The applicant had deliberately included the offensive statements in the programme, not with the intention of disseminating racist opinions, but in order to counter them through exposure. The applicant pointed out that he tried to show, analyse and explain to his viewers a new phenomenon in Denmark at the time, that of violent racism practised by inarticulate and socially disadvantaged youths. Joined by the Commission, he considered that the broadcast could not have had any significant detrimental effects on the \"reputation or rights of others\". The interests in protecting the latter were therefore outweighed by those of protecting the applicant ’ s freedom of expression.", "In addition the applicant alleged that had the 1991 Media Liability Act been in force at the relevant time he would not have faced prosecution since under the Act it is in principle only the author of a punishable statement who may be liable. This undermined the Government ’ s argument that his conviction was required by the UN Convention and \"necessary\" within the meaning of Article 10 (art. 10).", "29. The Government contended that the applicant had edited the Greenjackets item in a sensationalist rather than informative manner and that its news or information value was minimal. Television was a powerful medium and a majority of Danes normally viewed the news programme in which the item was broadcast. Yet the applicant, knowing that they would incur criminal liability, had encouraged the Greenjackets to make racist statements and had failed to counter these statements in the programme. It was too subtle to assume that viewers would not take the remarks at their face value. No weight could be attached to the fact that the programme had given rise to only a few complaints, since, due to lack of information and insufficient knowledge of the Danish language and even fear of reprisals by violent racists, victims of the insulting comments were likely to be dissuaded from complaining. The applicant had thus failed to fulfil the \"duties and responsibilities\" incumbent on him as a television journalist. The fine imposed upon him was at the lower end of the scale of sanctions applicable to Article 266 (b) offences and was therefore not likely to deter any journalist from contributing to public discussion on racism and xenophobia; it only had the effect of a public reminder that racist expressions are to be taken seriously and cannot be tolerated.", "The Government moreover disputed that the matter would have been dealt with differently had the 1991 Media Liability Act been in force at the material time. The rule that only the author of a punishable statement may incur liability was subject to exceptions (see paragraph 20 above); how the applicant ’ s case would have been considered under the 1991 Act was purely a matter of speculation.", "The Government stressed that at all three levels the Danish courts, which were in principle better placed than the European Court to evaluate the effects of the programme, had carried out a careful balancing exercise of all the interests involved. The review effected by those courts had been similar to that carried out under Article 10 (art. 10); their decisions fell within the margin of appreciation to be left to the national authorities and corresponded to a pressing social need.", "30. The Court would emphasise at the outset that it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations. It may be true, as has been suggested by the applicant, that as a result of recent events the awareness of the dangers of racial discrimination is sharper today than it was a decade ago, at the material time. Nevertheless, the issue was already then of general importance, as is illustrated for instance by the fact that the UN Convention dates from 1965. Consequently, the object and purpose pursued by the UN Convention are of great weight in determining whether the applicant ’ s conviction, which - as the Government have stressed - was based on a provision enacted in order to ensure Denmark ’ s compliance with the UN Convention, was \"necessary\" within the meaning of Article 10 para. 2 (art. 10-2).", "In the second place, Denmark ’ s obligations under Article 10 (art. 10) must be interpreted, to the extent possible, so as to be reconcilable with its obligations under the UN Convention. In this respect it is not for the Court to interpret the \"due regard\" clause in Article 4 of the UN Convention, which is open to various constructions. The Court is however of the opinion that its interpretation of Article 10 (art. 10) of the European Convention in the present case is compatible with Denmark ’ s obligations under the UN Convention.", "31. A significant feature of the present case is that the applicant did not make the objectionable statements himself but assisted in their dissemination in his capacity of television journalist responsible for a news programme of Danmarks Radio (see paragraphs 9 to 11 above). In assessing whether his conviction and sentence were \"necessary\", the Court will therefore have regard to the principles established in its case-law relating to the role of the press (as summarised in for instance the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59).", "The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (ibid.). Whilst the press must not overstep the bounds set, inter alia, in the interest of \"the protection of the reputation or rights of others\", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of \"public watchdog\" (ibid.). Although formulated primarily with regard to the print media, these principles doubtless apply also to the audiovisual media.", "In considering the \"duties and responsibilities\" of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, Commission ’ s admissibility decision of 16 April 1991, application no. 15404/89, Decisions and Reports (DR) 70, p. 262). The audiovisual media have means of conveying through images meanings which the print media are not able to impart.", "At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the Court recalls that Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see the Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 25, para. 57).", "The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued (see the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). In doing so the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (art. 10) and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, for instance, the Schwabe v. Austria judgment of 28 August 1992, Series A no. 242-B, pp. 32-33, para. 29).", "The Court ’ s assessment will have regard to the manner in which the Greenjackets feature was prepared, its contents, the context in which it was broadcast and the purpose of the programme. Bearing in mind the obligations on States under the UN Convention and other international instruments to take effective measures to eliminate all forms of racial discrimination and to prevent and combat racist doctrines and practices (see paragraph 21 above), an important factor in the Court ’ s evaluation will be whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.", "32. The national courts laid considerable emphasis on the fact that the applicant had himself taken the initiative of preparing the Greenjackets feature and that he not only knew in advance that racist statements were likely to be made during the interview but also had encouraged such statements. He had edited the programme in such a way as to include the offensive assertions. Without his involvement, the remarks would not have been disseminated to a wide circle of people and would thus not have been punishable (see paragraphs 14 and 18 above).", "The Court is satisfied that these were relevant reasons for the purposes of paragraph 2 of Article 10 (art. 10-2).", "33. On the other hand, as to the contents of the Greenjackets item, it should be noted that the TV presenter ’ s introduction started by a reference to recent public discussion and press comments on racism in Denmark, thus inviting the viewer to see the programme in that context. He went on to announce that the object of the programme was to address aspects of the problem, by identifying certain racist individuals and by portraying their mentality and social background. There is no reason to doubt that the ensuing interviews fulfilled that aim. Taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought - by means of an interview - to expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes, thus dealing with specific aspects of a matter that already then was of great public concern.", "The Supreme Court held that the news or information value of the feature was not such as to justify the dissemination of the offensive remarks (see paragraph 18 above). However, in view of the principles stated in paragraph 31 above, the Court sees no cause to question the Sunday News Magazine staff members ’ own appreciation of the news or information value of the impugned item, which formed the basis for their decisions to produce and broadcast it.", "34. Furthermore, it must be borne in mind that the item was broadcast as part of a serious Danish news programme and was intended for a well-informed audience (see paragraph 9 above).", "The Court is not convinced by the argument, also stressed by the national courts (see paragraphs 14 and 18 above), that the Greenjackets item was presented without any attempt to counterbalance the extremist views expressed. Both the TV presenter ’ s introduction and the applicant ’ s conduct during the interviews clearly dissociated him from the persons interviewed, for example by describing them as members of \"a group of extremist youths\" who supported the Ku Klux Klan and by referring to the criminal records of some of them. The applicant also rebutted some of the racist statements for instance by recalling that there were black people who had important jobs. It should finally not be forgotten that, taken as a whole, the filmed portrait surely conveyed the meaning that the racist statements were part of a generally anti-social attitude of the Greenjackets.", "Admittedly, the item did not explicitly recall the immorality, dangers and unlawfulness of the promotion of racial hatred and of ideas of superiority of one race. However, in view of the above-mentioned counterbalancing elements and the natural limitations on spelling out such elements in a short item within a longer programme as well as the journalist ’ s discretion as to the form of expression used, the Court does not consider the absence of such precautionary reminders to be relevant.", "35. News reporting based on interviews, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of \"public watchdog\" (see, for instance, the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. In this regard the Court does not accept the Government ’ s argument that the limited nature of the fine is relevant; what matters is that the journalist was convicted.", "There can be no doubt that the remarks in respect of which the Greenjackets were convicted (see paragraph 14 above) were more than insulting to members of the targeted groups and did not enjoy the protection of Article 10 (art. 10) (see, for instance, the Commission ’ s admissibility decisions in Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, DR 18, p. 187; and Künen v. Germany, application no. 12194/86, DR 56, p. 205). However, even having regard to the manner in which the applicant prepared the Greenjackets item (see paragraph 32 above), it has not been shown that, considered as a whole, the feature was such as to justify also his conviction of, and punishment for, a criminal offence under the Penal Code.", "36. It is moreover undisputed that the purpose of the applicant in compiling the broadcast in question was not racist. Although he relied on this in the domestic proceedings, it does not appear from the reasoning in the relevant judgments that they took such a factor into account (see paragraphs 14, 17 and 18 above).", "37. Having regard to the foregoing, the reasons adduced in support of the applicant ’ s conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was \"necessary in a democratic society\"; in particular the means employed were disproportionate to the aim of protecting \"the reputation or rights of others\". Accordingly the measures gave rise to a breach of Article 10 (art. 10) of the Convention.", "II. APPLICATION OF ARTICLE 50 (art. 50)", "38. Mr Jersild sought just satisfaction under Article 50 (art. 50) of the Convention, according to which:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "39. The Government accepted parts of his claim. The Commission offered no comments.", "A. Pecuniary damage", "40. The applicant claimed 1,000 kroner in respect of the fine imposed upon him, to be reimbursed by him to Danmarks Radio which had provisionally paid the fine for him.", "41. The Government did not object and the Court finds that the amount should be awarded.", "B. Non-pecuniary damage", "42. The applicant requested 20,000 kroner in compensation for non-pecuniary damage. He maintained that his professional reputation had been prejudiced and that he had felt distress as a result of his conviction.", "43. The Court observes that the applicant still works with the Sunday News Magazine at Danmarks Radio and that his employer has supported him throughout the proceedings, inter alia by paying the fine (see paragraphs 9 and 40 above) and legal fees (see paragraph 44 below). It agrees with the Government that the finding of a violation of Article 10 (art. 10) constitutes in itself adequate just satisfaction in this respect.", "C. Costs and expenses", "44. The applicant claimed in respect of costs and expenses:", "(a) 45,000 kroner for work done in the domestic proceedings by his lawyer, Mr J. Stockholm;", "(b) by way of legal fees incurred in the Strasbourg proceedings, 13,126.80 kroner for Mrs Johannessen, 6,900 pounds sterling for Mr Boyle and 50,000 kroner (exclusive 25% value-added tax) for Mr Trier;", "(c) 20,169.20 kroner to cover costs of translation, interpretation and an expert opinion;", "(d) 25,080 kroner, 965.40 pounds and 4,075 French francs in travel and subsistence expenses incurred in connection with the hearings before the Commission and Court, as well as miscellaneous expenses.", "Parts of the above costs and expenses had been provisionally disbursed by Danmarks Radio.", "45. The Government did not object to the above claims. The Court considers that the applicant is entitled to recover the sums in their entirety. They should be increased by any value-added taxes that may be chargeable." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "A. The applicant", "8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul.", "9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul.", "B. The impugned news report", "10. The issue dated 26 April 1992 contained a news report providing information given at a press conference by a delegation - which included two former Turkish parliamentarians Leyla Zana and Orhan Doğan, Lord Avebury and a member of the Anglican Church - on its visit to Şırnak village, in the wake of tensions in the area.", "The news report included an article reporting the Governor of Şırnak as having told the delegation that the Şırnak Chief of Police had given an order to open fire on the people.", "It further rendered a dialogue between Leyla Zana, Orhan Doğan and İsmet Yediyıldız, a Gendarme Commander.", "The relevant part of the report read:", "“Gendarmerie Regiment Commander İsmet Yediyıldız :", "‘Your blood would not quench my thirst…’", "While the British delegation and Diyarbakır MP Leyla Zana, Şırnak MP Orhan Doğan and Bismil District Governor Mehmet Kurdoğlu managed to persuade the people of Tepe village, which was blockaded by the security forces, after talking to them for a while and telling them that permission had been obtained for them to get the bodies of their dead, an interesting conversation took place between Diyarbakır Security Director Ramazan Er and Gendarmerie Regiment Commander İsmet Yediyıldız.", "The conversation between the MPs Leyla Zana and Orhan Doğan on the one hand and Colonel İsmet Yediyıldız on the other hand was recounted by Leyla Zana as follows:", "Colonel Yediyıldız : What business do you have here? There had been nobody here until you arrived. You have come and stirred things up again.", "Leyla Zana : No, Sir. The situation had been extremely tense before we arrived. We have come with the District Governor and are trying to calm down the tension here. Here is the District Governor.", "Colonel Yediyıldız : No, that’s not true. We saw when we were flying by helicopter that there was nobody here before. People gathered when you arrived.", "Orhan Doğan : No, you can ask the District Governor if you like. (Meanwhile, District Governor Mehmet Kurdoğlu was also being told off.)", "Colonel Yediyıldız : Do you know who these dead people are?", "Orhan Doğan : Yes, they are our children, the children of all of us.", "Colonel Yediyıldız : No, these are not our children, they are your children.", "Orhan Doğan : But my Colonel ...", "Colonel Yediyıldız : Do not call me your colonel. I am not your colonel. Your blood would not quench my thirst. You should also be honest and freely admit that my blood would not quench your thirst. Right now I could kill you like a rat. Your death would give us pleasure. Your blood would not quench my thirst.", "Leyla Zana : If the problem can be solved by killing us, then here are our people; let’s go among them and you kill us and this problem is solved.", "Colonel Yediyıldız : No, I would not kill you now. I would kill you after disgracing you in the eyes of the people.”", "C. The charges against the applicant", "11. On 29 May 1992 the Public Prosecutor at the Istanbul National Security Court ( İstanbul Devlet Güvenlik Mahkemesi ) charged the applicant, being the owner of the review, with revealing the identity of officials mandated to fight terrorism and thus rendering them terrorist targets. The charges were brought under section 6 of the Prevention of Terrorism Act 1991 (\"the 1991 Act\"; see paragraph 16 below).", "12. In the proceedings before the Istanbul National Security Court the applicant denied the charges and advanced the following arguments in his defence. The news report had been published with the aim of informing the public of the events which had occurred during the 1992 Newroz celebrations. It had been based on a joint press declaration by former deputies Leyla Zana and Orhan Doğan and an English delegation, during their visit to south-east Turkey. By virtue of the fact that section 6 of the 1991 Act contained an absolute prohibition on the disclosure and dissemination of the identity of officials appointed to fight terrorism, it enabled officials to abuse their authority, violate the law and subject citizens to ill-treatment. The right to receive and impart information, including information concerning acts of officials, was fundamental in a democratic society. Section 6 of the 1991 Act contravened not only the Turkish Constitution but also Article 10 of the Convention.", "D. The applicant’s conviction", "13. In a judgment of 2 September 1993 the National Security Court convicted the applicant under section 6 of the 1991 Act and sentenced him to pay a fine of 54,000,000 Turkish lira. It noted that the news report had contained an allegation to the effect that the Governor of Şırnak had stated to the visiting delegation that the Şırnak Chief of Police had given an order to open fire on the people. It had further affirmed that a gendarme commander had stated to Orhan Doğan in Leyla Zana’s presence \"[y]our death would give us pleasure. Your blood would not quench my thirst\". By having disclosed the identity of these officials, the publication had rendered them targets for terrorist attack.", "E. The applicant’s appeal against conviction and subsequent proceedings", "14. The applicant appealed, reiterating his defence before the National Security Court. He also argued that the press declaration at issue had already been reported in other newspapers and magazines and that the incriminated news report had added nothing to these.", "15. On 10 December 1993 the Court of Cassation dismissed the appeal. It upheld the cogency of the National Security Court's assessment of the evidence and its reasoning for rejecting the applicant's defence." ]

[ "II. relevant domestic law", "A. The criminal law", "The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) [1]", "16. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:", "Section 6", "“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.", "It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.", "…", "Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched. [2] However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.”", "B. The National Security Courts", "17. The relevant provisions of domestic law governing the organisation and procedure of the National Security Court are quoted in paragraphs 32 ‑ 33 of the Sürek no. 1 v. Turkey judgment, which is being delivered on the same date as the present judgment.", "PROCEEDINGS BEFORE THE COMMISSION", "18. Mr Kamil Tekin Sürek applied to the Commission on 9 March 1994. He complained that his conviction and sentence constituted an unjustified interference with his right to freedom of expression as guaranteed by Article 10 of the Convention and that his case had not been heard by an independent and impartial tribunal, in breach of Article 6 § 1 of the Convention. He also maintained that the criminal proceedings against him had not been concluded within a reasonable time, which gave rise to a separate violation of Article 6 § 1.", "19. The Commission declared the application (no. 24122/94) admissible on 2 September 1996, with the exception of the applicant’s Article 6 § 1 complaint relating to the length of the criminal proceedings in his case. In its report of 13 January 1998 (former Article 31), it expressed the opinion that there had been no violation of Article 10 of the Convention (23 votes to 9) and that there had been a violation of Article 6 § 1 (31votes to 1). The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [1].", "FINAL SUBMISSIONS TO THE COURT", "20. The applicant requested the Court to find the respondent State in breach of its obligations under Articles 6 § 1 and 10 of the Convention and to award him just satisfaction under Article 41.", "The Government for their part invited the Court to reject the applicant’s complaints.", "AS TO THE LAW", "I. alleged violation of article 10 oF THE CONVENTION", "21. The applicant alleged that the authorities had unjustifiably interfered with his right to freedom of expression guaranteed under Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "22. The Government maintained that the interference with the applicant’s right to freedom of expression was justified under the provisions of the second paragraph of Article 10. The Commission agreed with the Government on this point.", "A. Existence of an interference", "23. The Court notes that it is clear, and this has not been disputed, that there has been an interference with the applicant’s right to freedom of expression on account of his conviction and sentence under section 6 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”).", "B. Justification of the interference", "24. The interference contravened Article 10 unless it was “prescribed by law”, had one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn.", "1. “Prescribed by law”", "25. It was not disputed that the interference had a legal basis in section 6 of the 1991 Act and was thus \"prescribed by law\" within the meaning of Article 10 § 2 of the Convention. The Court does not see any reason for arriving at a contrary conclusion.", "2. Legitimate aim", "26. The applicant did not dispute that the interference pursued a legitimate aim under the second paragraph of Article 10 of the Convention.", "27. The Government submitted that the measures had been imposed in the interests of national security and territorial integrity.", "28. The Commission was of the opinion that the applicant’s conviction and sentence for the disclosure of the identities of certain officials pursued the legitimate aim of protection of the rights of others. The Commission left it open whether other aims, such as the protection of national security and public safety, were relevant.", "29. The Court, having regard to the sensitivity of the security situation in south-east Turkey (see the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII, p. 2547, §§ 19 and 50) and to the need for the authorities to take particular steps to protect public officials involved in the fight against terrorism from being targeted for terrorist attack, considers that the contested measures can be said to have been taken in the interest of national security and territorial integrity and for the protection of the rights of others, which are legitimate aims under Article 10 § 2 of the Convention.", "3. “Necessary in a democratic society”", "(a) Arguments of those appearing before the Court", "( i ) The applicant", "30. The applicant complained that although he was the owner of the review with no editorial responsibility for its content, he had nonetheless been punished under section 6 of the 1991 Act for the disclosure of the names of the public officials in question. He submitted that the impugned data had formed part of an objective news report aimed at providing the public with information given at a press conference by a delegation of public figures, in the wake of certain tensions at Şırnak in 1992. The publication did not praise the PKK. Nor did the review or the applicant himself have any links with that organisation. Finally, he stressed that the press declaration at issue had already been reported in other newspapers and that the incriminated news report added nothing to these reports.", "(ii) The Government", "31. The Government maintained that the news report published by the applicant had contained unfounded accusations which, by virtue of the disclosure of the identity of certain officials involved in the fight against terrorism, had put their lives at danger from terrorist attack.", "As the owner of the review the applicant had participated in the dissemination of separatist propaganda by publishing a news report which, by attempting in a veiled but nonetheless obvious manner to vindicate a terrorist organisation, threatened fundamental interests of the national community such as territorial integrity, national unity and security and the prevention of crime and disorder. In the Government's submission, separatist propaganda inevitably incites to violence and provokes hostility among the various groups in Turkish society, thus endangering human rights and democracy.", "In the Government’s view the measures taken against the applicant did were within the authorities’ margin of appreciation in relation to the type of activity which endangers the vital interests of the State and the taking of these measures in the instant case found its justification under paragraph 2 of Article 10.", "(iii) The Commission", "32. The Commission observed that, bearing in mind the general tension and the level of terrorism and violence occurring in south-east Turkey, the officials engaged in State action against terrorist groups in that area were frequently exposed to serious risks and therefore a high degree of protection was required. According to the findings of the National Security Court, the disclosure of the identities of the officials concerned had made them possible targets of terrorist attack. In the Commission's opinion, the incriminated news report, which in itself might have contained information of public interest, could well have been published without disclosure of the identities of the two officials concerned. It concluded that there had been no violation of Article 10 in the circumstances of the case.", "(b) The Court’s assessment", "33. The Court reiterates the fundamental principles underlying its judgments relating to Article 10, as set out in, for example, its Zana v. Turkey judgment (cited above, pp. 2547-48, § 51) and in its Fressoz and Roire v. France judgment of 21 January 1999 ( Reports 1999-, p. …, § 45).", "( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "(ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "(iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.", "34. The Court further recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see the Wingrove v. the United Kingdom judgment of 25 November 1996 Reports 1996-V, p. 1957, § 58). The dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). Finally, where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.", "35. Since the applicant was convicted of disclosing the identity of certain public officials through the medium of the review of which he was the owner, the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy (see among many other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A, no. 103, p. 26, § 41; and the above ‑ mentioned Fressoz and Roire judgment, p…., § 45). While the press must not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones. Not only has the press the task of imparting such information and ideas; the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders (see the above-mentioned Lingens judgment, p. 26 §§ 41-42).", "36. The Court notes that the applicant’s conviction and sentence had been imposed on the ground that his review had published a news report identifying certain officials with certain statements suggesting misconduct on their part. While it is true that the applicant did not personally associate himself with the information contained in the news report, the Court does not accept his argument that he should be exonerated from any criminal liability for their contents on account of the fact that he only had a commercial and not an editorial relationship with the review. He was an owner and as such had the power to shape the editorial direction of the review. For that reason, he was vicariously subject to the “duties and responsibilities” which the review’s editorial and journalist staff undertake in the collection and dissemination of information to the public and which assume an even greater importance in situations of conflict and tension.", "37. The applicant's conviction and sentence related, in the first place, to the fact that his publication had reported the Governor of Şırnak to have affirmed that the Şırnak Chief of Police had given order to open fire against the people. Secondly, it had quoted Leyla Zana, a former parliamentarian, as having stated that a named Gendarme Commander had told Orhan Doğan, also a former parliamentarian, that \"[y]our death would give us pleasure. Your blood would not quench my thirst\" (see paragraph 10 above).", "Thus, the wording of the statements clearly implied serious misconduct on the part of the police and gendarme officers in question. Although the statements were not presented in a manner which could be regarded as incitement to violence against the officers concerned or the authorities, they were capable of exposing the officers to strong public contempt. Moreover, the news report was published in the context of the security situation in south-east Turkey, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region (see the above-mentioned Zana judgment, p. 2539, § 10).", "38. In the light of the foregoing, the Court sees no reason to doubt that the applicant's conviction and sentence were supported by reasons which were relevant for the purposes of the necessity test under paragraph 2 of Article 10.", "39. As regards the further question whether the reasons relied on could also be considered sufficient, the Court observes that the contested interference related to journalistic reporting of statements made by certain politicians to the press concerning their visit to an area of Turkey where tensions had occurred (see the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 23, § 31). The impugned news report simply reiterated what a police officer and a gendarme officer were said to have ordered or affirmed on specific occasions. Assuming that the assertions were true, the Court considers that, in view of the seriousness of the misconduct in question, the public had a legitimate interest in knowing not only the nature of the conduct but also the identity of the officers. However, the defences of truth (see the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 24, §§ 47-48) and public interest could not have been pleaded under the relevant Turkish law.", "40. Furthermore, it is undisputed that the press declaration on which the news report was based had already been reported in other newspapers and that the incriminated news coverage added nothing to those reports. Nor has it been submitted that other newspapers were prosecuted in respect of publication of information derived from the said declaration (see the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 23, § 51). At the time of the publication of the news report in the present case, the information in issue, identifying specific police and gendarme officers with serious misconduct, was already in the public domain. Thus, the interest in protecting the identity of the officers concerned had been substantially diminished and the potential damage which the restriction was aimed at preventing had already been done (see the Observer and Guardian and the Sunday Times (no. 2) judgments of 26 November 1991, respectively Series A no. 216, pp. 34-35, §§ 69-71; and Series A no. 217, pp. 30-31, §§ 54-56).", "41. Finally, the Court considers that the conviction and sentence were capable of discouraging the contribution of the press to open discussion on matters of public concern.", "42. In the light of the above, the Court does not find that the objective of the Government in protecting the officers in question against terrorist attack was sufficient to justify the restrictions placed on the applicant's right to freedom of expression under Article 10 of the Convention. In the absence of a fair balance between the interests in protecting the freedom of the press and those in protecting the identity of the public officials in question, the interference complained of was disproportionate to the legitimate aims pursued. There has therefore been a breach of Article 10 of the Convention in the present case.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "A. The Government's preliminary objection", "43. In their memorial to the Court the Government maintained that the applicant, not having raised before the domestic courts his complaint that his case had not been heard by an independent and impartial tribunal, had failed to exhaust domestic remedies as required by Article 35 of the Convention.", "44. The Court reiterates that it takes cognisance of preliminary objections in so far as the State in question has already raised them, at least in substance and with sufficient clarity, before the Commission, in principle at the stage of the initial examination of admissibility (see, for instance, the Aytekin v. Turkey judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. § 77). However, it does not appear from the observations submitted by the Government to the Commission that they objected, on the ground of non-exhaustion, to the admissibility of the above ‑ mentioned complaint. Accordingly, they are estopped from raising their preliminary objection.", "B. The merits of the applicant's complaint", "45. The applicant complained that he had been denied a fair hearing in breach of the Article 6 § 1 of the Convention on account of the presence of a military judge on the bench of the National Security Court which tried and convicted him. In so far as is relevant Article 6 § 1 provides:", "“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”", "46. The Government contested this allegation whereas the Commission accepted it.", "47. In the applicant’s submission the military judges appointed to the National Security Courts such as the Istanbul National Security Court were dependent on the executive, being appointed by the joint decree of the Minister of Defence and the Prime Minister subject to the approval of the President of the Republic. He pointed to the fact that their professional assessment and promotion as well as their security of tenure were within the control of the executive branch and in turn the army. The ties which bound them to the executive and to the army made it impossible for military judges to discharge their functions on the bench in an independent and impartial manner. The applicant further stressed that the independence and impartiality of military judges and hence of the courts on which they sat were compromised since these judges were unable to take a position which might be contradictory to the views of their commanding officers.", "The applicant stated that these considerations impaired the independence and impartiality of the Istanbul National Security Court and prevented him from receiving a fair trial, in violation of Article 6 § 1.", "48. The Government replied that the rules governing the appointment of military judges to the National Security Courts and the guarantees which they enjoy in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements ofindependence and impartiality within the meaning of Article 6 § 1. The Government disputed the applicant’s argument that military judges were accountable to their superior officers. In the first place, it was an offence under section 112 of the Military Code for a public official to attempt to influence the performance by a military judge of his judicial functions (see paragraph 17 above). Secondly, the assessment reports referred to by the applicant related only to conduct of a military judge’s non-judicial duties. Military judges had access to their assessment reports and were able to challenge their content before the Military Supreme Administrative Court ( ibidem ). When acting in a judicial capacity a military judge was assessed in exactly the same manner as a civilian judge.", "49. The Government further averred that the fairness of the applicant’s trial had not been prejudiced by reason of the presence of a military judge on the bench. They claimed that neither the military judge’s hierarchical authorities nor the public authorities which had appointed him to the court had any interest in the proceedings or in the outcome of the case. The Istanbul National Security Court's judgment was later upheld on appeal by the Court of Cassation, a court whose independence and impartiality have not been impugned (see paragraphs 13-15 above).", "50. The Government also impressed upon the Court the need to have particular regard to the security context in which the decision to establish National Security Courts was taken pursuant to Article 143 of the Constitution. In view of the experience of the armed forces in the anti ‑ terrorism campaign the authorities had considered it necessary to strengthen these courts by including a military judge in order to provide them with the necessary expertise and knowledge to deal with threats to the security and integrity of the State.", "51. The Commission concluded that the Istanbul National Security Court could not be considered an independent and impartial tribunal for the purposes of Article 6 § 1 of the Convention. The Commission referred in this respect to its opinion in the Incal v. Turkey case in its Article 31 report adopted on 25 February 1997 and the reasons supporting that opinion.", "52. The Court recalls that in its Incal v. Turkey judgment of 9 June 1998 (Reports 1998-IV, p. 1504) and in its Çiraklar v. Turkey judgment of 28 October 1998 (Reports 1998-, p. …) the Court had to address arguments similar to those raised by the Government in their pleadings in the instant case. In those judgments the Court noted that the status of military judges sitting as members of National Security Courts did provide certain guarantees of independence and impartiality (see the above-mentioned Incal judgment, p. 1571, § 65). On the other hand, the Court found that some aspects of these judges’ status made their independence and impartiality questionable ( ibidem, § 68): for example, the fact that they are servicemenwho still belong to the army, which in turn takes its orders from the executive; or that they remain subject to military discipline; and the fact that decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 17 above).", "53. As in its Incal judgment the Court considers that its task is not to determine in abstracto the necessity for the establishment of National Security Courts in the light of the justifications advanced by the Government. Its task is to ascertain whether the manner in which the Istanbul National Security Court functioned infringed Mr Sürek’s right to a fair trial, in particular whether, viewed objectively, he had a legitimate reason to fear that the court which tried him lacked independence and impartiality (see the above-mentioned Incal judgment, p. 1572, § 70; and the above-mentioned Çiraklar judgment, p. …, § 38).", "As to that question, the Court sees no reason to reach a conclusion different from that in the cases of Mr Incal and Mr Çiraklar, both of whom, like the present applicant, were civilians. It is understandable that the applicant – prosecuted in a National Security Court for disclosing the identity of officials involved in the fight against terrorism - should have been apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service (see paragraph 17 above). On that account he could legitimately fear that the Istanbul National Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant’s fears as to that court’s lack of independence and impartiality can be regarded as objectively justified. The proceedings in the Court of Cassation were not able to dispel these fears since that court did not have full jurisdiction (see the above ‑ mentioned Incal judgment, p.1573, § 72 in fine ).", "54. For these reasons the Court finds that there has been a breach of Article 6 § 1.", "III. Application of ARTICLE 41 OF THE CONVENTION", "55. The applicant claimed compensation for pecuniary and non ‑ pecuniary damage as well as reimbursement of costs and expenses incurred in the domestic and Convention proceedings. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "56. The applicant claimed the sum of 100, 000 French francs (FRF) by way of compensation for the fine imposed on him and paid (see paragraph 13 above). The amount claimed included interest accrued, took account of the high rate of inflation in the respondent State and was calculated on the basis of an exchange rate from 1992.", "57. The Government maintained that the sum claimed by the applicant was exorbitant having regard to the fact that the applicant was only fined 54,000,000 Turkish liras and he was allowed to pay the fine in monthly instalments.", "58. The Delegate of the Commission did not comment.", "59. The Court cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 would have been, but has found that the respondent State is in breach of Article 10 on account of the applicant’s conviction and sentence. Having regard to the rates of exchange during the relevant period, it considers that in the circumstances the applicant should be awarded FRF 13,000 in respect of pecuniary damage.", "B. Non-pecuniary damage", "60. The applicant claimed that as a lawyer his career had been blighted on account of the fact that he has a conviction recorded against him for an offence of terrorism. He requested the Court to award him the sum of FRF 80,000 by way of compensation for moral damage.", "61. The Government argued that if the Court were minded to find a violation in this case that finding would constitute in itself sufficient just satisfaction under this head.", "62. The Delegate of the Commission did not comment on this limb of the applicant’s claim either.", "63. The Court considers that the applicant may be taken to have suffered distress on account of the facts of the case. Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant in compensation the sum of FRF 30,000 under this head.", "C. Costs and expenses", "64. The applicant claimed the legal costs and expenses (translation, postal, communications and travel expenditure) which he incurred in the proceeding before the domestic courts and the Convention institutions. He assessed these at 50,000 FRF. As to the proceedings before the Commission and Court he stated that his lawyer’s fees were based on the Turkish Bar Association’s minimum rate scales. The applicant added that the total amount claimed took account of the high level of inflation in Turkey and was based on current exchange rates.", "65. The Government stated that the amount claimed was exaggerated in comparison with fees earned by Turkish lawyers in the domestic courts and had not been properly justified. The case was simple and had not required much effort on the part of the applicant’s lawyer who had dealt with it throughout the proceedings in his own language. They cautioned against the making of an award which would only constitute a source of unjust enrichment having regard to the socio-economic situation in the respondent State.", "66. The Delegate of the Commission did not comment.", "67. The Court notes that the applicant’s lawyer has been associated with the preparation of other cases before the Court concerning complaints under Articles 6 and 10 of the Convention which are based on similar facts. Deciding on an equitable basis and according to the criteria laid down in its case-law (see, among many other authorities, the above-mentioned Nikolova v. Bulgaria judgment Reports 1999-... p. …, § 79), the Court awards the applicant the sum of FRF 15,000.", "D. Default interest", "68. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment which, according to the information available to it, is 3.47 % per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "4. The applicant was born in 1960 and lives in France.", "5. He is the proprietor and managing director of Berfin, a publishing house which in November 1993 published a novel by Abdullah Rıza Ergüven entitled “ Yasak Tümceler ” (“The forbidden phrases”). The book conveyed the author's views on philosophical and theological issues in a novelistic style. Two thousand copies of it were printed in a single run.", "6. In an indictment of 18 April 1994, the Istanbul public prosecutor (“the public prosecutor”) charged the applicant under the third and fourth paragraphs of Article 175 of the Criminal Code with blasphemy against “God, the Religion, the Prophet and the Holy Book” through the publication of the book in question.", "7. The public prosecutor's indictment was based on an expert report drawn up at the request of the press section of the Istanbul public prosecutor's office by Professor Salih Tuğ, dean of the theology faculty of Marmara University at the material time. In his report of 25 February 1994 the expert observed:", "“ ... the author arbitrarily uses theories about the physical substance of the universe, creation and the existence of natural laws to sway readers'minds towards the conclusions he wishes to be drawn from the book. In particular, in the passages on theology he imprisons readers within the limits of his own views, which are devoid of all academic rigour. ... He criticises the beliefs, ideas, traditions and way of life of Anatolian Turkish society by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit. ... This way of thinking, based on materialism and positivism, leads to atheism in that it renounces faith and divine revelation ... Although these passages may be regarded as a polemic in support of the author's philosophical views, it may be observed that they also contain statements that imply a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam ... In the author's view, religious beliefs and opinions are mere obscurities, and ideas based on nature and reason are described as clear-sighted. The author describes religious faith as a'desert mirage', a'primitive idea'and'desert ecstasy', and religious practices as'the primitivism of desert life'. ...”", "8. In his report the expert quoted numerous passages from the book under review, in particular:", "“... just think about it, ... all beliefs and all religions are essentially no more than performances. The actors played their roles without knowing what it was all about. Everyone has been led blindly along that path. The imaginary god, to whom people have become symbolically attached, has never appeared on stage. He has always been made to speak through the curtain. The people have been taken over by pathological imaginary projections. They have been brainwashed by fanciful stories ...", "... this divests the imams of all thought and capacity to think and reduces them to the state of a pile of grass ... [ regarding the story of the Prophet Abraham's sacrifice ] it is clear that we are being duped here ... is God a sadist? ... so the God of Abraham is just as murderous as the God of Muhammad ...”", "The expert concluded his report as follows:", "“The passages which I have quoted from the book form the actus reus of the offence provided for in Article 175 of the Criminal Code. As regards the mens rea, my analysis shows that it has been made out, especially since the author entitled his book'The forbidden phrases'.”", "9. In a letter of 28 June 1994 to the Istanbul Court of First Instance, the applicant contested the expert report. He requested a second opinion, arguing that the book was a novel and should have been analysed by literary specialists, and questioned the expert's impartiality.", "10. On 2 November 1995 a committee of experts, composed of Professors Kayıhan İçel, Adem Sözüer and Burhan Kuzu, submitted its report.", "11. In a letter of 19 April 1996 to the Court of First Instance, the applicant disputed the accuracy of the second expert report and argued that it was a copy of the first report.", "12. On 24 April 1996 the applicant submitted before the Court of First Instance that the book was neither blasphemous nor insulting within the meaning of the third paragraph of Article 175 of the Criminal Code and merely conveyed its author's philosophical views.", "13. In a judgment of 28 May 1996, the Court of First Instance convicted the applicant and sentenced him to two years'imprisonment and a fine. It commuted the prison sentence to a fine, so that the applicant was ultimately ordered to pay a total fine of 3,291,000 Turkish liras (equivalent at the time to 16 United States dollars). In its reasoning the court referred to the second expert report and cited the following passage from the book:", "“Look at the triangle of fear, inequality and inconsistency in the Koran; it reminds me of an earthworm. God says that all the words are those of his messenger. Some of these words, moreover, were inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual relations with a dead person or a live animal.”", "14. On 3 September 1996 the applicant appealed to the Court of Cassation. In his grounds of appeal he submitted that in the book in question the author had merely expressed his views, and challenged the content of the expert reports.", "15. On 6 October 1997 the Court of Cassation upheld the impugned judgment.", "16. The applicant was notified of the final judgment by means of a payment order postmarked 2 December 1997." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "17. The third and fourth paragraphs of Article 175 of the Criminal Code provide:", "“It shall be an offence punishable by six months to one year's imprisonment and a fine of 5,000 to 25,000 Turkish liras to blaspheme against God, one of the religions, one of the prophets, one of the sects or one of the holy books ... or to vilify or insult another on account of his religious beliefs or fulfilment of religious duties ...", "The penalty for the offence set out in the third paragraph of this Article shall be doubled where it has been committed by means of a publication.”", "18. Section 16(4) of the Press Act (Law no. 5680) provides:", "“With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author [or] translator ... of the publication which constitutes the offence, and by the publisher. ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "19. The applicant alleged that his criminal conviction had infringed his right to freedom of expression. He relied on Article 10 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of disorder or crime, for the protection of ... morals, [and] for the protection of the reputation or rights of others ...”", "20. The Government submitted that the applicant's conviction had met a pressing social need in that the book in issue had contained an abusive attack on religion, in particular Islam, and had offended and insulted religious feelings. They argued in that connection that the criticism of Islam in the book had fallen short of the level of responsibility to be expected of criticism in a country where the majority of the population were Muslim.", "21. The Court observes that the book in question conveyed the author's views on philosophical and theological issues in a novelistic style. It notes that the domestic courts found that the book contained expressions intended to blaspheme against and vilify religion.", "22. The Court notes that it was common ground between the parties that the applicant's conviction constituted interference with his right to freedom of expression under Article 10 § 1. Furthermore, it was not disputed that the interference was prescribed by law and pursued the legitimate aims of preventing disorder and protecting morals and the rights of others, within the meaning of Article 10 § 2. The Court endorses that assessment. The dispute in the instant case relates to the question whether the interference was “necessary in a democratic society”.", "23. The Court reiterates the fundamental principles underlying its judgments relating to Article 10 as set out, for example, in Handyside v. the United Kingdom (judgment of 7 December 1976, Series A no. 24), and in Fressoz and Roire v. France ([GC], no. 29183/95, § 45, ECHR 1999-I). Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.", "24. As paragraph 2 of Article 10 recognises, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context of religious beliefs, may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane (see, for example, Otto-Preminger-Institut v. Austria, judgment of 20 September 1994, Series A no. 295-A, pp. 18-19, § 49, and Murphy v. Ireland, no. 44179/98, § 67, ECHR 2003 ‑ IX). This being so, as a matter of principle it may be considered necessary to punish improper attacks on objects of religious veneration (ibid.).", "25. In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society”, the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation (see Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports of Judgments and Decisions 1996-V, p. 1956, § 53). The fact that there is no uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions means that the Contracting States have a wider margin of appreciation when regulating freedom of expression in connection with matters liable to offend intimate personal convictions within the sphere of morals or religion (see Otto- Preminger-Institut, cited above, p. 19, § 50; Wingrove, cited above, pp. 1957-58, § 58; and Murphy, cited above, § 67).", "26. A State may therefore legitimately consider it necessary to take measures aimed at repressing certain forms of conduct, including the imparting of information and ideas, judged incompatible with respect for the freedom of thought, conscience and religion of others (see, in the context of Article 9, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, and Otto- Preminger-Institut, cited above, pp. 17-18, § 47). It is, however, for the Court to give a final ruling on the restriction's compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a “pressing social need” and whether it was “proportionate to the legitimate aim pursued” (see Wingrove, cited above, p. 1956, § 53, and Murphy, cited above, § 68).", "27. The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public his views on religious doctrine on the one hand and the right of others to respect for their freedom of thought, conscience and religion on the other hand (see Otto-Preminger-Institut, cited above, p. 20, § 55).", "28. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society” (see Handyside, cited above, p. 23, § 49). Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith (see Otto-Preminger-Institut, cited above, pp. 17-18, § 47).", "29. However, the present case concerns not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. Notwithstanding the fact that there is a certain tolerance of criticism of religious doctrine within Turkish society, which is deeply attached to the principle of secularity, believers may legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha's arms. ... God's messenger broke his fast through sexual intercourse, after dinner and before prayer. Muhammad did not forbid sexual intercourse with a dead person or a live animal.”", "30. The Court therefore considers that the measure taken in respect of the statements in issue was intended to provide protection against offensive attacks on matters regarded as sacred by Muslims. In that respect it finds that the measure may reasonably be held to have met a “pressing social need”.", "31. The Court concludes that the authorities cannot be said to have overstepped their margin of appreciation in that respect and that the reasons given by the domestic courts to justify taking such a measure against the applicant were relevant and sufficient.", "32. As to the proportionality of the impugned measure, the Court is mindful of the fact that the domestic courts did not decide to seize the book, and accordingly considers that the insignificant fine imposed was proportionate to the aims pursued.", "There has therefore been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant was born in 1950 and at the time of the publication of the article lived in Baku. The second applicant was born in 1975 and resides in Lankaran.", "A. Background information", "7. The first applicant was a well-known writer and columnist, who collaborated with various newspapers and reviews writing under the pen name of Rafig Tagi. The second applicant worked as editor-in-chief of the Sanat Gazeti (Art Newspaper), a bi-weekly newspaper which mostly covered issues related to art, literature and theatre, and had a circulation of around 800 copies.", "8. On 1 November 2006 an article entitled “Europe and us” ( “Avropa və biz” ) and signed by the first applicant was published on page 24 of the Sanat Gazeti newspaper, issue no. 16 (060). It was one of the articles written by the first applicant in a series of “East-West studies”. The full text of the article reads as follows:", "“Europe has always made mankind think of it not just as a geographical space, but in terms of a moral-ethical habitat. Since European values are in fact an achievement of all mankind, it should not lead to haughtiness on the part of the Europeans. Although unfortunately this haughtiness manifests itself from time to time, even materialising itself as fascism or in the form of a militarised aggressive nation.", "Of course, fascism was Europe’s unforgivable mistake.", "It turns out that the ideas of freedom and humanism emerged in Europe and they are effective and real only there. It is because of the coincidence of its moral postulates with these ideas that Christianity became well set in Europe. No other religion may be spread, disseminated in Europe. Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing. The Islamic humanism criteria cannot even resist the dialectic materialist criticism that we learnt by heart, became accustomed to. Islam is a type of Eastern despotism and may be considered only as one of the modifications of despotism. Islam would never transform into a moral imperative in Europe; it is incapable of that. Although it was carried as a coffin on the shoulders of the Ottoman Empire throughout Europe, no place was found to put it down. It was again brought and placed in the East, in the direction of Mecca. A man worshipping Jesus Christ would never give any consideration to the Prophet Muhammad. In comparison with Jesus Christ, the father of war fatwas ( müharibə fətvalarının atası ) the Prophet Muhammad is simply a frightful creature ( qorxunc bir məxluqdur ). At best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito ( tək-tək fiziki şəxslər, ya inkoqnito yaşayan terroristlər ).", "Europe is a lost opportunity of the East. The East did not perceive human freedom, or did not want to do so. Human freedom in the East crawls along as a problem of lowest priority. A man deprived of social and public freedoms is promised illusory happiness at the level of dark Islamic sects. The way to paradise decorated with calamities is portrayed as a way out of social mires. Islam has caused hypocritical working principles in structures of Eastern countries. Its taboo system has caused a full fiasco of the East, rendering worthless the few bright public ideas and thoughts available in it. Look, religious science in the Islamic world consists of only multiplication of these taboos and its further improvement.", "The West is always in dialectical and the East in metaphysical conditions. Only false progressive visions are possible in the Eastern metaphysical public status. Against the background of forward leaps of the West, the East looks like it has jumped back.", "All attempts of Azerbaijan at building a secular State result from European influence. In these sincere attempts the Azerbaijani people has completely proved that it is a real member of the European family. Our State relations with Islamic countries are tedious and reluctant and diplomatically insincere. Our thinking people consider Islam in Azerbaijan as a mandatory, necessary Eastern sign, the residue of violence. Historically, at least in our most recent history, the ‘sincere’ relations of Azerbaijani heads of State towards Islam mostly proceed from insincere ‘reigning’ interests. For them the Muslims had always been among significant obstacles to be cleared off and had significance merely as electoral strata.", "As much as I am the Pope, Azerbaijani heads of State were Muslims.", "The Azerbaijani Turk even remains European within the strict Shiite-Islamic regime of Iran. Oppressions and any kind of persecution, or nationalist assimilation attempts, bring no success to Persian chauvinism. You should pay attention, the immigration from the South [Iranian Azerbaijan] is mainly towards Europe. This psychological self-knowledge says everything with no need for proof or explanations; one should take advantage of it. Frankly speaking, the Eastern elements in the character of the Azerbaijani who is in substance European seem like a foreign substance, I would say, a defect in the Azerbaijani man.", "The Eastern belonging adds nothing to the system of values of the Azerbaijani man.", "Russia too did not want to isolate itself from the West; even if it was subjected to regular military aggressions from the West. Peter the Great, having not been pleased with both sides said his word confidently and resolutely. His attempts to graft Europe on Russia succeeded entirely. Russian culture and Russian literature are entirely European sourced.", "All States of the world, if looked at thoroughly, are engaged in the interpretation of freedom to a certain extent. The problem of human rights is discussed there in terms of Europe, taking it as a specimen. Since only European values are inevitable factors of progress. Human rights are a social European invention and are acceptable only in the European model.", "European culture succeeded in removing the barbarism from human nature. With crimes reduced to a minimum; there is no need already for this living factor. First of all, man was able to overcome himself in the European area, could move away from the Evil and get closer to the Good. Europe also passed through bloody revolutions, but having gained experience earlier than others, it says no to them again first of all.", "The refusal of revolution is a superiority of the West over the East.", "Only societies which do not need social and political revolutions are good.", "By the way, the scientific and technical leaps in America and South-East Asia are also creations of European science. If there was no Europe, the world would probably have thought that the Sun rotates around the Earth. The East would have considered that the Earth is supported by bulls.", "Europe already finalised its painful moral, ethical, historical and philosophical searches, and managed to bring them to a necessary, decent, useful condition. Today the European man reaps the fruits of centuries-old searches and thoughts. Since these searches and thoughts were always practical, realistic and logical. The real life of a man exists only with logical deeds. The lack of logic is a shortage of intellect and is uselessness. Logic is the most important attribute of wit. The thoughts of the Eastern man are as if not for living; it is unknown for what they are. The European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract. In any case, the intention is to direct a man towards the life hereafter. The school of Eastern philosophers is a system of limited thinking inside Islam. The Eastern philosopher is at best in the role of an Islamic missionary. It is necessary to say that the link with Islam is not at all a merit for a philosopher.", "F. Nietzsche’s works were beautiful exactly in that they were far from religion. In the case of Fyodor Dostoyevsky, although the link with religion looks so attractive, it was not so important. Outside Christianity, Dostoyevsky would still have been more interesting, more fundamental.", "... The East-West comparative analysis is mainly met with envy and intolerance, and sometimes with severe pressure and reactions. And this article, which I have suddenly completed, has been written taking into account all the pressure and reactions. Moreover, I would say it is to be continued.”", "9. Following the publication of the article, the applicants were publicly criticised by various Azerbaijani and Iranian religious figures and groups. In particular, in November 2006 one of the prominent religious leaders of Iran, Ayatollah Muhammad Fazel Lankarani, issued a religious fatwa calling for the applicants’ death. The publication of the article also triggered protests in Iran in front of the Azerbaijani embassy and consulate.", "B. The applicants’ criminal conviction and further developments", "10. On 11 November 2006 criminal proceedings were instituted against the applicants under Article 283 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility).", "11. It appears from the documents in the case file that on 14 November 2006 the investigator in charge of the case ordered a forensic linguistic and Islamic assessment ( məhkəmə-linqvistik islamşünaslıq ekspertizası ) of the impugned article. In particular, he asked the expert to establish whether there were any elements capable of leading to incitement to religious hatred and hostility in the article “Europe and us”, and if so in which part of the article those elements appeared.", "12. Report no. 11908, signed by J.M., the head of the religious expertise department at the State Committee for Work with Religious Organisations, was issued on 15 November 2006. The relevant part of the report reads as follows:", "“The examined writings, submitted for assessment, consisted of Rafig Tagi’s article ‘Europe and us’ published on page 24 of the Sanat Gazeti newspaper no. 16 (060).", "The author writes, in paragraph 3, that ‘Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing’. In fact, Islam is a humanist religion calling for high moral standards and good behaviour. The author tries to propagandise among the individuals hatred and hostility against Islam by using these sentences.", "The author further argues that ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’. The fact that the Prophet Muhammad had high moral standards and that he treated the people well was established in the Koran and in the works of various Western scholars. In the third verse of the Al-Qalam Surah of the Koran, Allah indicated that the Prophet Muhammad had high moral standards. The comparison between Jesus Christ and the Prophet Muhammad and the consideration that the one is preferable to the other seek to incite religious hatred and hostility.", "The author also notes that ‘at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito’. The author tries to prove by this sentence that Muslims living in the West are terrorists and Islam supports terrorism. However, terrorism is vigorously condemned in the verses of the Koran and the hadiths.", "In the last paragraph the author argues that ‘the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract’. By these words, he insulted the Eastern philosophers ridiculing them, claiming that they are mad and stupid. However, philosophers of worldwide renown such as Al-Farabi, Al-Ghazali and Ibn Rusd appeared in the East. This position of the author accusing all the Eastern philosophers of being clowns seeks to spread propaganda of hatred and hostility against Islam.", "The above-mentioned considerations give sufficient grounds to conclude the existence of elements of actions leading to incitement to religious hatred and hostility in Rafig Tagi’s article ‘Europe and us’ published on page 24 of the Sanat Gazeti newspaper 16 (060).", "Conclusion", "There are elements of actions leading to incitement to religious hatred and hostility in Rafig Tagi’s article ‘Europe and us’, published on page 24 of the Sanat Gazeti newspaper 16 (060), in paragraph 3 in the sentences ‘Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing’; ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’; ‘at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito’; and in the last paragraph in the sentences ‘the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract.”", "13. On 15 November 2006 the Nasimi District Court ordered the applicants’ detention pending trial.", "14. On 4 May 2007 the Sabayil District Court found the first applicant guilty under Article 283.1 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility, committed publicly or by use of the mass media) and sentenced him to three years’ imprisonment. The court also found the second applicant guilty under Article 283.2.2 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility, committed by a person using his official position) and sentenced him to four years’ imprisonment. It appears from the judgment that the applicants pleaded not guilty in the course of the court proceedings, arguing that they had not committed any criminal offence. The employees of the Sanat Gazeti newspaper and of the company which published it were questioned as witnesses before the court and stated that the impugned article had been sent by the first applicant to the newspaper and had been published following the authorisation of the second applicant. The court held that the passages of the impugned article referred to in report no. 11908 dated 15 November 2006 contained elements capable of leading to incitement to religious hatred and hostility. In that connection, the judgment relied on the conclusions of the forensic report, without making any legal assessment or giving further explanation. The relevant part of the judgment reads as follows:", "“It was established by forensic linguistic and Islamic report no. 11908 dated 15 November 2006 completed in connection with that case that there are elements of actions leading to incitement to religious hatred and hostility in Rafig Tagi’s article ‘Europe and us’, published on page 24 of the Sanat Gazeti newspaper 16 (060), in paragraph 3 in the sentences ‘Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing’; ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’; ‘at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito’; and in the last paragraph in the sentences ‘the European philosopher does not act as clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract.’", "Therefore, assessing the totality of the collected evidence, the court considers that it was fully proven by the statements from the accused persons and the witnesses, and the forensic report that Tagiyev Rafig Nazir oglu was guilty of committing the criminal offence provided for by Article 283.1 of the Criminal Code of the Republic of Azerbaijan and that Huseynov Samir Sadagat oglu was guilty of committing the criminal offence provided for by Article 283.2.2 of the Criminal Code of the Republic of Azerbaijan.”", "15. On 18 May 2007 the applicants appealed against that judgment, claiming a breach of their right to freedom of expression as protected under Article 10 of the Convention. In particular, they argued that the first-instance court’s judgment had simply copied the conclusions of report no. 11908 dated 15 November 2006, without giving any consideration to the Court’s case-law relating to Article 10 of the Convention.", "16. On 6 July 2007 the Court of Appeal upheld the judgment of 4 May 2007. The wording of the appellate court’s judgment was almost identical to the first instance court’s judgment and made no mention of the applicants’ particular complaint under Article 10 of the Convention.", "17. On 31 August 2007 the applicants lodged a cassation appeal against the appellate court’s judgment, reiterating their previous complaints.", "18. On 22 January 2008 the Supreme Court upheld the Court of Appeal’s judgment of 6 July 2007. The Supreme Court held in particular that it agreed with the lower courts’ findings, based on the forensic linguistic and Islamic report and the witness statements, that the applicants had committed the criminal offence provided for by Article 283 of the Criminal Code.", "19. In the meantime, on 28 December 2007 the applicants were dispensed from serving the remainder of their sentence by a presidential pardon decree and were released from prison, having spent more than one year and one month in detention.", "20. On 19 November 2011 when the first applicant returned home from work he was stabbed by an unknown person who fled from the scene of the crime. On 23 November 2011 the first applicant died in hospital. A separate application (see application no. 72611/14) concerning the circumstances of the death of the first applicant, in which various complaints under Articles 2, 10 and 13 of the Convention were raised, is pending before the Court.", "II. No one shall be forced to proclaim or to repudiate his or her thoughts and beliefs.", "III. Agitation and propaganda inciting racial, ethnic, religious, social discord and hostility are not allowed.”", "Article 48 Freedom of conscience", "“I. Everyone enjoys the freedom of conscience.", "II. Everyone has the right to freely determine his or her attitude to religion, to profess, individually or together with others, any religion or to profess no religion, to express and disseminate his or her beliefs concerning his or her attitude to religion. ...”", "B. Criminal Code", "22. Article 283 of the Criminal Code, in force at the relevant time, provided as follows:", "Article 283 Incitement to ethnic, racial, social or religious hatred and hostility", "“283.1. Acts aimed at inciting ethnic, racial, social or religious hatred and hostility, humiliation of national dignity, as well as acts aimed at restricting citizens’ rights or establishing citizens’ superiority on the basis of their ethnic, racial, social or religious origin, if committed openly or by means of the mass media, are punishable by a fine in the amount of one thousand to two thousand manats, or restriction of liberty for a period of up to three years, or deprivation of liberty for a period of two to four years.", "283.2. The same acts, if committed:", "283.2.1. with the use of violence or the threat of use of violence;", "283.2.2. by a person using his official position;", "283.2.3. by an organised group;", "are punishable by deprivation of liberty for a period of three to five years.", "...”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution of the Republic of Azerbaijan", "21. At the material time, the relevant provisions of the Constitution provided as follows:", "Article 7 Azerbaijani State", "“I. The Azerbaijani State is a democratic, secular, unitary republic governed by the rule of law. ...”", "Article 18 Religion and State", "“I. Religion is separated from the State in the Republic of Azerbaijan. All religious faiths shall be equal before the law. ...”", "Article 47 Freedom of thought and speech", "“I. Everyone enjoys the freedom of thought and speech.", "THE LAW", "I. PRELIMINARY ISSUE", "23. The Court notes at the outset that the first applicant, Mr Rafig Tagiyev, died on 23 November 2011 after lodging the present application and his wife, Ms Maila Tagiyeva, has expressed her wish to continue the proceedings before the Court in his stead (see paragraph 4 above). The Government did not dispute the standing of the first applicant’s wife to pursue the application in the first applicant’s stead.", "24. The Court notes that in various cases in which an applicant has died in the course of the Convention proceedings, it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court (see, among other authorities, Jėčius v. Lithuania, no. 34578/97, § 41, ECHR 2000 ‑ IX; Pisarkiewicz v. Poland, no. 18967/02, §§ 30-33, 22 January 2008; and Ergezen v. Turkey, no. 73359/10, §§ 27-30, 8 April 2014). The Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, and Ksenz and Others v. Russia, nos. 45044/06 and 5 others, § 86, 12 December 2017). In view of the above and having regard to the circumstances of the present case, the Court accepts that Ms Maila Tagiyeva has a legitimate interest in pursuing the application in her late husband’s stead. However, for reasons of convenience, the text of this judgment will continue to refer to Mr Rafig Tagiyev as “the first applicant”, even though only Ms Maila Tagiyeva is today to be regarded as having the status of first applicant before the Court (see Gulub Atanasov v. Bulgaria, no. 73281/01, § 42, 6 November 2008, and Isayeva v. Azerbaijan, no. 36229/11, § 62, 25 June 2015).", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "25. The applicants complained under Articles 7, 9 and 10 of the Convention that their criminal conviction for publication of the impugned article had amounted to a violation of their rights protected by the Convention. Having regard to the circumstances of the case, the Court considers that the applicants’ complaints do not raise a separate issue under Articles 7 and 9 of the Convention and fall to be examined under Article 10 of the Convention, albeit questions relating to Article 9 arise in the balancing exercise thereunder. Article 10 reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "A. Admissibility", "26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "27. The applicants maintained their complaint, submitting that their criminal conviction for the publication of the article “Europe and us” had amounted to an unjustified interference with their right to freedom of expression. They argued that their criminal conviction for inciting religious hatred and hostility had not been justified by the domestic courts which simply relied on a forensic report concluding that there were elements capable of leading to incitement to religious hatred and hostility. In that connection, the applicants noted that the article in question could not be characterised as incitement to religious hatred and hostility and it had only sought to make a comparison between Islam and Christianity in the context of European and Eastern humanist values and human rights concepts.", "28. Relying on the Court’s case-law, the applicants submitted that a number of elements should have been taken into account in the assessment of the impugned article. In particular, the article had not targeted any religious group or its believers and there was no intent to incite hatred and hostility between various religious groups. The applicants further pointed out that the context should also be taken into account in the assessment of the case by the Court, as there was neither before nor after the publication of the impugned article any hostility among the religious groups in Azerbaijan, a country with a high degree of religious tolerance and peace. Moreover, the author of the article was a writer without any political affiliation and did not have any authority or influence on any social or religious group in the country. The article had been published in a newspaper which had a circulation of around 800 copies, with a very limited impact on society. Lastly, the applicants drew attention to the severity of the sanctions imposed by the domestic authorities, arguing that they had been totally disproportionate.", "29. The Government agreed that the applicants’ criminal conviction had constituted an interference with their right to freedom of expression. That interference had been prescribed by Article 283 of the Criminal Code, and had pursued the legitimate aims of “the protection of the rights of others” and “the prevention of disorder”.", "30. The Government submitted that the applicants’ criminal conviction had met a pressing social need, as the impugned article had contained an abusive attack on religion, in particular Islam, and had offended and insulted religious feelings. There had been a strong public reaction to that article. Various religious entities, such as the Juma Mosque Religious Community, the Azerbaijan Islamic Party and the Caucasian Muslims Office, had made public statements condemning the article and several public rallies had been held in the suburbs of Baku.", "31. Relying on the Court’s case-law, the Government submitted that the national authorities enjoyed a certain margin of appreciation in assessing the existence and extent of the necessity for such an interference and that in the case of “morals” it was not possible to discern throughout Europe a uniform conception of the significance of religion in society. Taking into account the margin of appreciation left to the Contracting States in such circumstances, the Government considered that the domestic courts had been entitled to interfere with the exercise of the applicants’ right in the present case. Moreover, the domestic courts had struck the right balance between the rights protected under Articles 9 and 10 of the Convention. Furthermore, the Government drew attention to the fact that the applicants had been dispensed from serving the remainder of their sentence in December 2007 by a presidential decree.", "2. The Court’s assessment", "(a) Whether there was interference", "32. The Court notes that it is undisputed by the parties that the applicants’ criminal conviction amounted to an interference with the exercise of their right to freedom of expression, as guaranteed by Article 10 of the Convention. The Court shares this view.", "(b) Whether the interference was justified", "33. Such an interference will constitute a breach of Article 10 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2, and was “necessary in a democratic society” for the achievement of such an aim (see Perinçek v. Switzerland [GC], no. 27510/08, § 124, ECHR 2015 (extracts)).", "(i) Prescribed by law", "34. The Court observes that the applicants’ criminal conviction had been based on Article 283 of the Criminal Code, which was accessible and foreseeable and, therefore, that the interference with their right to freedom of expression had been “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "(ii) Legitimate aim", "35. The Court observes that the Government submitted that the interference had pursued the legitimate aims of “the protection of the rights of others” and “the prevention of disorder”. The Court endorses this assessment (see İ.A. v. Turkey, no. 42571/98, § 22, ECHR 2005 ‑ VIII, and Aydın Tatlav v. Turkey, no. 50692/99, § 21, 2 May 2006).", "(iii) Necessary in a democratic society", "(α) General principles", "36. The general principles for assessing whether an interference with the exercise of the right to freedom of expression has been “necessary in a democratic society” are well-established in the Court’s case-law and have been reiterated in numerous cases. The Court has stated, in particular, that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see, among many other authorities, Pentikäinen v. Finland [GC], no. 11882/10, § 87, ECHR 2015; Perinçek, cited above, § 196; and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016).", "37. Moreover, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debates on questions of public interest. The margin of appreciation of States is thus reduced where a debate on a matter of public interest is concerned (see Baka v. Hungary [GC], no. 20261/12, § 159, 23 June 2016, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 167, 27 June 2017). As paragraph 2 of Article 10 recognises, however, the exercise of freedom of expression carries with it duties and responsibilities. Amongst them, in the context of religious beliefs, is the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane (see Giniewski v. France, no. 64016/00, § 43, ECHR 2006 ‑ I, and Sekmadienis Ltd. v. Lithuania, no. 69317/14, § 74, 30 January 2018). Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures (see for example, mutatis mutandis, Otto ‑ Preminger-Institut v. Austria, 20 September 1994, § 47, Series A no. 295 ‑ A; İ.A., cited above, §§ 29-31; and E.S. v. Austria, no. 38450/12, § 43, 25 October 2018).", "38. In addition, with regard, more specifically, to the interference with freedom of expression in cases concerning expressions alleged to stir up or justify violence, hatred or intolerance, the Court reiterates that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence or hatred based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued (see, mutatis mutandis, Gündüz v. Turkey, no. 35071/97, § 40, ECHR 2003 ‑ XI). It certainly remains open to the relevant State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see Erdoğdu v. Turkey, no. 25723/94, § 62, ECHR 2000 ‑ VI).", "39. In examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society”, the Court has frequently held that the absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions broadens the Contracting States’ margin of appreciation when regulating freedom of expression in relation to matters liable to offend personal convictions within the sphere of morals or religion (see Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; Aydın Tatlav, cited above, § 24; and E.S., cited above, § 44).", "40. The adjective “necessary” implies the existence of a “pressing social need”, which must be convincingly established. Admittedly, it is first of all for the national authorities to assess whether there is such a need capable of justifying that interference and, to that end, they enjoy a certain margin of appreciation (see, for instance, Erdoğdu, cited above, § 53). However, in the context of the freedom of press the authorities enjoy only a limited margin of appreciation in assessing whether “a pressing social need” exists (see Görmüş and Others v. Turkey, no. 49085/07, § 42, 19 January 2016). Moreover, the margin of appreciation is coupled with supervision by the Court both of the law and the decisions applying the law, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Karataş v. Turkey [GC], no. 23168/94, § 48, ECHR 1999 ‑ IV, and Perinçek, cited above, § 196).", "41. The Court’s supervisory function is not limited to ascertaining whether the national authorities exercised their discretion reasonably, carefully and in good faith. It has rather to examine the interference in the light of the case as a whole and to determine whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” and whether the measure taken was “proportionate” to the legitimate aim pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 of the Convention (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI). In order to determine its proportionality, the Court must consider the impugned interference not only in the light of the content of the statements at issue, but also the context in which they were made. Furthermore, the nature and severity of the penalty imposed are also factors to be taken into account (see, for example, Gündüz, § 42, and Bédat, § 79, both cited above).", "(β) Application of the above principles to the present case", "42. In the present case, the first and second applicants were prosecuted in criminal proceedings and were sentenced to three and four years’ imprisonment, respectively, for the publication of the article “Europe and us” in the Sanat Gazeti newspaper. In particular, relying on a forensic report, the domestic courts found the applicants guilty under Article 283 of the Criminal Code for inciting religious hatred and hostility in using the following four remarks in the above-mentioned article: (a) “Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing”; (b) “in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature”; (c) “at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito”; and (d) “the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract”.", "43. The Court observes at the outset that the Government did not argue before it that the impugned remarks contained in the above-mentioned article constituted hate speech and that, therefore, the applicants should not benefit from the protection of Article 10 of the Convention by virtue of the application of Article 17 of the Convention (compare Perinçek, cited above, §§ 103-15, and Stern Taulats and Roura Capellera v. Spain, nos. 51168/15 and 51186/15, §§ 25-42, 13 March 2018). Moreover, the Court sees nothing in the case file to suggest that the impugned remarks were directed against the Convention’s underlying values or that by making them the applicants attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down therein (compare Belkacem v. Belgium (dec.), no. 34367/14, §§ 29 ‑ 37, 27 June 2017, and ROJ TV A/S v. Denmark (dec.), no. 24683/14, §§ 34-42, 17 April 2018).", "44. The issue before the Court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicants to impart to the public their views on religion in the press on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other (see Otto ‑ Preminger ‑ Institut, § 55; İ.A., § 27; and Aydın Tatlav, § 26, all cited above). The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite to hatred or religious intolerance (see E.S., cited above, § 52).", "45. In that connection, the Court notes that, although the article “Europe and us” contained several remarks about Islam and its social and philosophical implications, it is clear from the reading of the whole text that the article mainly dealt with the comparison between Western and Eastern values, expressing the author’s ideas about the role of religion in the formation of those values, as well as the impact of those values in the context of human rights and development in the world and in Azerbaijan. Therefore, the article should not be examined only in the context of a matter relating to religious beliefs, but also in the context of a debate on a matter of public interest, namely the role of a religion in society and its role in the development of society.", "46. As regards the content of the impugned remarks characterised by the domestic courts as incitement to religious hatred and hostility, the Court notes that some of these remarks, in particular those concerning the Prophet Muhammad and Muslims living in Europe (see paragraph 42 above), may be seen by certain religious people as an abusive attack on the Prophet of Islam and Muslims living in Europe, capable of causing religious hatred. However, it is first of all for the national authorities to carry out a comprehensive assessment of the impugned remarks, putting forward relevant and sufficient reasons for justifying the interference and carefully balancing the applicants’ right to freedom of expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs.", "47. In that connection, the Court notes that it cannot, in the instant case, accept the reasons provided by the domestic courts as relevant and sufficient for the purpose of justifying the interference in question. It observes that the domestic courts confined themselves in their decisions to reiterating the conclusions of a forensic report, without giving any explanation as to why the particular remarks contained in the article constituted incitement to religious hatred and hostility. The domestic courts failed to examine the report and merely endorsed its conclusions. The relevant assessment clearly went far beyond resolving mere language and religious issues, such as, for instance, defining the meaning of particular words and expressions or their religious importance, and provided, in essence, a legal characterisation of the impugned remarks. The Court finds that situation unacceptable and stresses that all legal matters must be resolved exclusively by the courts (see Dmitriyevskiy v. Russia, no. 42168/06, § 113, 3 October 2017, and Maria Alekhina and Others v. Russia, no. 38004/12, § 262, 17 July 2018).", "48. The domestic courts also failed to carry out any assessment of the impugned remarks by examining them within the general context of the article. On the contrary, they examined the impugned remarks detached from the general context and content of the article, without assessing the author’s intention, the public interest of the matter discussed and other relevant elements. However, domestic courts in such proceedings are required to consider whether the context of the case, the public interest and the intention of the author of the impugned article justified the possible use of a degree of provocation or exaggeration (compare Paraskevopoulos v. Greece, no. 64184/11, § 40, 28 June 2018). Moreover, the Court cannot accept the Government’s assertion that the domestic courts struck the right balance between the rights protected under Articles 9 and 10 of the Convention, as the domestic courts in their decisions did not even try to balance the applicants’ right to freedom of expression with the protection of the right of religious people not to be insulted on the grounds of their beliefs (see paragraphs 14, 16 and 18 above).", "49. The Court further considers it necessary to draw attention to the severity of the penalties imposed on the applicants, who were convicted in criminal proceedings and given sentences of three and four years’ imprisonment, respectively, spending more than one year and one month in detention. The Court reiterates in this connection that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal (see Perinçek, cited above, § 273). Moreover, although sentencing is in principle a matter for the national courts, the Court does not consider that the circumstances of the present case disclosed any justification for the imposition on the applicants of such severe sanctions, which were capable of producing a chilling effect on the exercise of freedom of expression in Azerbaijan and dissuading the press from openly discussing matters relating to religion, its role in society or other matters of public interest (see Aydın Tatlav, cited above, § 30, and Fatullayev v. Azerbaijan, no. 40984/07, § 128, 22 April 2010).", "50. The foregoing considerations are sufficient to enable the Court to conclude that the applicants’ criminal conviction was disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”. There has accordingly been a violation of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "51. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "52. The applicants, without indicating an exact amount, claimed compensation in respect of pecuniary damage, arguing that they had lost earnings over a period of 408 days as a result of their criminal conviction. In that connection, the first applicant submitted that his average monthly salary and earnings amounted to 800-900 Azerbaijani manats (AZN) and the second applicant submitted that his average monthly salary and earnings totalled AZN 650-800. The applicants further claimed that their family had spent approximately 400-500 euros (EUR) per month on sending food to them and regularly visiting them in prison.", "53. The Government contested the claims, submitting that the applicants had failed to substantiate them.", "54. As regards the applicants’ claim for loss of earnings, the Court reiterates that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, even assuming that there is a causal link between the damage claimed and the violation found, the Court observes that the applicants did not submit any documentary evidence in support of their claim (see Hajibeyli and Aliyev v. Azerbaijan, nos. 6477/08 and 10414/08, § 73, 19 April 2018, and Haziyev v. Azerbaijan, no. 19842/15, § 48, 6 December 2018).", "55. As to the part of the claim concerning the food and visiting expenses, the Court does not find any causal link between the damage claimed and the violation found (see Fatullayev, cited above, § 186; Efendiyev v. Azerbaijan, no. 27304/07, § 60, 18 December 2014; and Yagublu v. Azerbaijan, no. 31709/13, § 68, 5 November 2015).", "56. For the above reasons, the Court rejects the applicants’ claims in respect of pecuniary damage.", "2. Non-pecuniary damage", "57. The applicants each claimed EUR 50,000 in respect of non ‑ pecuniary damage.", "58. The Government submitted that a finding of a violation would constitute sufficient just satisfaction.", "59. The Court considers that the applicants have suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards each applicant the sum of EUR 12,000 under this head, plus any tax that may be chargeable on this amount.", "B. Costs and expenses", "60. The applicants each claimed EUR 1,450 for costs and expenses incurred before the Court. In support of this claim, they submitted a contract between Ms Maila Tagiyeva and Mr R. Hajili and a contract between the second applicant and his representatives, Mr R. Hajili and Mr K. Agaliyev. The applicants further claimed EUR 5,000 for costs and expenses incurred before the domestic courts and the preparation of the initial application to the Court on the basis of the legal services conducted by Mr I. Ashurov. No contract was submitted in support of that claim.", "61. The Government argued that the claims were unsubstantiated. In particular, they pointed out that no relevant documentation was submitted in support of the amount claimed for legal expenses incurred before the domestic courts and the preparation of the initial application to the Court by Mr I. Ashurov. They further asked the Court to reject the part of the claim concerning the applicants’ representation before the Court, disputing the authenticity of the contracts submitted by the applicants and pointing out that it could not be established on the basis of these contracts that the costs had actually been incurred.", "62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court observes that the applicants did not submit any document in support of their claim for legal expenses incurred before the domestic courts and the preparation of the initial application to the Court by Mr I. Ashurov. As to the remaining part of the claim, the Court notes that the applicants made identical submissions before the Court and the amount of work done by their representatives before the Court was limited to the preparation of their observations. Having regard to these facts, as well as to the documents in its possession and the above criteria, the Court considers it reasonable to award to each applicant the sum of EUR 850 covering costs under all heads.", "C. Default interest", "63. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant, Mrs Danutė Balsytė-Lideikienė, is a Lithuanian national, who was born in 1947. At present she lives in Lithuania.", "8. The applicant is the founder and owner of a publishing company “ Metskaitliai ”. Since 1995 the company has published “ Lithuanian calendar ” ( Lietuvio kalendorius ), a yearly calendar with notes by the applicant and other contributors describing various historic dates from the perspective of its authors. The calendar could be purchased in bookstores. It was distributed in Lithuania and among Lithuanian immigrants living abroad.", "9. On 4 January 2000 a Member of the Lithuanian Parliament (Seimas) distributed a public announcement, stating that the texts published in “ Lithuanian calendar 2000 ” insulted persons of Polish, Russian and Jewish origin. The relevant parts of “ Lithuanian calendar ” read as follows:", "[ First page of the calendar ] : “Lietuva – the land of the Lithuanians, as each footprint here bears traces of our Nation's blood”", "15 February: “In 1998, on the eve of the 80 th anniversary of the restoration of the independence of Lithuania, a Pole insidiously killed nine Lithuanians living in Širvintų district's Draučių village – all the inhabitants of the village were shot. ( ... ) The Nation was informed about the tragedy after thirty six hours – during this time Lithuanian [high society] were celebrating and enjoying themselves, hugged the Polish president, put flowers [on the monuments] to Pilsudski's army, drank and danced their ghastly dance on the freshly spilled blood of Lithuanians whose whole village had been murdered. ”", "17 March: “The new Lithuanian government ( ... ) puts on trial the Lithuanian nation for the extermination of the Jews ( ... ) but is not interested in the genocide of the Lithuanians and dances Jewish foxtrots to the music of the Wiesenthals and Zurroffs.”", "26 April: “In 1944 in the vicinity of Rodūnia the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians.”", "15 June: “The soviet occupying power, with the help of the communist collaborators, among whom, in particular, were many Jews, for half a century ferociously carried out the genocide and colonisation of the Lithuanian nation.”", "23 June: “In 1944 in Dubingiai and its surrounding area the Polish Krajova Army brutally killed more than a hundred Lithuanians ( ... ) among whom were women, little children, even babies and old people. This was the way the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people, for the sole reason that they were Lithuanians. The Dubingiai events should be regarded as the genocide of the Lithuanian nation. But the Lithuanian authorities [who associate themselves with the Poles] ignore obvious facts and do not even attempt to evaluate these war crimes.”", "15 July: “Through the blood of our ancestors to the worldwide community of the Jews”", "18 July: “In 1999 the monument to the victims of the Polish Krajova Army was put up and consecrated in Dubingiai. ( ... ) In 1944 in the environs of Dubingiai the Polish Krajova Army plundered and killed innocent people solely because they were Lithuanians. The killings of 8 March and 23 June 1944 are horrible [acts of] ethnic cleansing and cruel war crimes that cannot be solved by simply constructing a monument to the victims. There is no statutory time - limit on prosecution of war crimes, the war criminals should be identified and tried. ( ... )”", "31 August: “ occupying Russian army”, “Russian occupants”", "10 September: “The March of the Beggars. In 1997 ( ... ) about fifty Lithuanian beggars demonstrated in front of the Parliament. They were joined by a few thousand Vilnius residents. The purpose of this act was to attract the Parliament's and the Government's attention to poverty ( ... ) in Lithuania. Unfortunately, the public gathering of the beggars did not receive any attention from the heads of the Lithuanian State. At the same time a banquet for the Jews took place in Vilnius. The banquet cost Lithuania a million litas. A feast during the plague. ( ... ) The Jews were managing the Parliament; from the tribune of the Parliament the Jews were insulting and scolding the Lithuanian nation, asking for Lithuanian blood and Lithuanian property. The majority of the ruling Conservative party ( ... ) greeted the swearing Jews with standing ovations.”", "24 November: “The Lithuanian nation will only survive by being a nationalist nation – no other way exists!”", "5 December: “In 1991 the Supreme Council (Parliament) of the Republic of Lithuania ( ... ) adopted the “zero” citizenship law, proposed by V. Landsbergis. The law illegally gave citizenship to occupants and colonists and the Lithuanians became worthless .”", "22 December: “ The politicians adopted legislation demonstrating their anti-Lithuanian attitude. This way, the conservative neo-Bolsheviks took their revenge on the Lithuanian nation, executing the will of the Jewish extremists. ”", "24 December: “21 Lithuanians were brutally killed during the Christmas of 1944. Half a century passed and on Christmas Eve the Pharisees ( ... ) who took power started new executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics.”", "10. The back cover of “ Lithuanian calendar 2000 ” contained a map of the Republic of Lithuania. The neighbouring territories of the Republic of Poland, the Russian Federation and the Republic of Belarus were marked as “ethnic Lithuanian lands under temporary occupation”.", "11. On 10 January 2000 a Seimas committee requested the Office of the Prosecutor General to investigate whether the publication was compatible with the Lithuanian Constitution and other legal acts.", "12. On 12 January 2000 the Prime Minister wrote a letter to the State Security Department, requesting it to examine whether “the contents of'Lithuanian calendar 2000'contained the elements of violations of ethnic and racial equality”.", "13. On the same date the Lithuanian Foreign Ministry also received a note from the Russian Embassy, expressing its dissatisfaction with the publication's map describing certain territories of the Russian Federation as “ethnic Lithuanian lands under temporary occupation”.", "14. On 13 January 2000 a similar note was received from the Embassy of Belarus.", "15. On 14 January 2000 the State Security Department requested Vilnius University to submit an experts'opinion as to whether “ Lithuanian calendar 2000 ” promoted ethnic, racial or religious hostility. In this regard the security intelligence authorities requested the experts to examine whether “ Lithuanian calendar 2000 ” contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups.", "16. On 20 January 2000 two experts, history and political science professors at Vilnius University, found that “ Lithuanian calendar 2000 ” could be characterised as promoting the radical ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnocentrism, contained xenophobic and offensive statements, in particular with regard to the Jewish and Polish populations, and promoted territorial claims and national superiority vis-à-vis other ethnic groups. The experts nonetheless noted that the calendar did not directly incite violence against the Jewish population, nor did it advocate implementing discriminatory policy against this ethnic group.", "17. At the end of January 2000 the security intelligence authorities seized a number of copies of “ Lithuanian calendar 2000 ” in various bookstores in Lithuania. The distribution of the publication was stopped.", "18. By a letter of 31 January 2000 the Prosecutor General informed the Prime Minister that, following the examination of the content of “ Lithuanian calendar 2000 ”, no elements of a criminal offence (instigation of ethnic or racial hatred) had been found in the applicant's releasing of the publication. However, the Prosecutor General held that in this respect the applicant should have been punished by way of the administrative procedure under Article 214 12 of the Code on Administrative Law Offences (Production, storage and distribution of information materials promoting ethnic, racial or religious hatred ). He stated that the security intelligence authorities had applied to an administrative court for a penalty to be imposed on the applicant under the domestic provision. The Prosecutor General also informed the Prime Minister that the distribution of the calendar had been suspended pending the determination of the case by a court.", "19. On 14 February 2000 the officers of the State Security Department held that the applicant should be punished by the administrative procedure provided by Article 214 12 of the Code on Administrative Law Offences.", "20. On 28 June 2000 the Vilnius City Second District Court found that the applicant had produced 3,000 copies of “ Lithuanian calendar 2000 ”, 588 of which had been sold. By reference mostly to the experts'conclusion of 20 January 2000, the court held that the applicant thereby intended to distribute material promoting ethnic hatred in breach of Article 214 12 of the Code of Administrative Law Offences. The Court imposed an administrative fine in the amount of 1,000 Lithuanian litai (LTL) on the applicant and ordered confiscation of all copies of “ Lithuanian calendar 2000 ” seized in the bookstores.", "21. The court examined the case in the absence of the applicant or her lawyer. It was noted however that she had been duly informed of the date and place of the hearing, but that she had not submitted a request to postpone the examination or an explanation of the reasons for her absence. Therefore the court had concluded that the case could be examined without the applicant being present.", "22. The applicant appealed, claiming in particular a violation of Article 10 of the Convention. She also argued that she had been tried in absentia.", "23. On 16 August 2000 the Vilnius Regional Court quashed the first - instance judgment on the ground that the applicant had been in hospital from 27 June to 3 July 2000 and could not take part in the first - instance hearing. The case was remitted for a fresh examination at first instance.", "24. On 28 September 2000 a judge of the Vilnius City Second District Court ordered another expert examination to be carried out. The court requested Vilnius University to form a group of experts representing various fields of social science in order to produce a conclusion on whether “ Lithuanian calendar 2000 ” promoted ethnic, racial or religious hatred, whether it contained anti-Semitic, anti-Polish, anti-Russian expressions, or assertions of the superiority of Lithuanians vis-à-vis other ethnic groups.", "25. In reply to the court's decision, four separate expert opinions were produced, reflecting the point of view of Vilnius University professors specialising in the following fields: history, psychology, political science and library science.", "26. On 12 March 2001 the applicant submitted a written request, received by the Vilnius City Second District Court the following day, by which she asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row. The applicant also asked the court to determine the reasons behind the experts'absence and to sanction them. The court did not grant the applicant's requests.", "27. On 13 March 2001 the Vilnius City Second District Court found that by publishing and distributing “ Lithuanian calendar 2000 ” the applicant had breached Article 214 12 of the Code on Administrative Offences. The court imposed an administrative penalty in the form of a warning on her, while the unsold copies of the calendar and the means to produce it were confiscated.", "28. By reference to the conclusions of the experts in the field of political science the court stated that a one-sided portrayal of relations among nations obstructed the consolidation of civil society and promoted ethnic hatred. The court also noted that “ Lithuanian calendar 2000 ” had caused negative reactions from part of society as well as from the diplomatic representations of some neighbouring States, including Poland, Belarus and Russia, who had expressed their concerns about the map denoting some of the territories of those countries as “ethnic Lithuanian lands under temporary occupation”. Relying on the conclusion of the bibliographic expert report the Vilnius City Second District Court noted that the publication did not meet the prescribed standards because, among other things, the calendar contained no indication of the sources and literature that had been used, and the name of the author of each statement in the calendar was not provided. The court concluded that the applicant had prepared, published and distributed the calendar and was therefore responsible for its content.", "29. By reference to the conclusions of the experts in the fields of history and psychology the court held that the applicant's actions had not been deliberate, but reckless. The court relied on the psychological experts'report that “ Lithuanian calendar 2000 ” represented the personal character, values and emotions of the applicant. The court noted the conclusion of the experts in psychology that the publication did not contain expressions of hatred against the Polish population, the superiority of the Lithuanians over other nationals was not emphasised, and the negative statements about the Jewish population were not to be seen as anti-Semitic. However the Vilnius City Second District Court concluded that the psychology experts'conclusion did not refute the other evidence collected and the remaining evidence confirmed that there had been a violation of administrative law.", "30. The court emphasised that the breach of the administrative law committed by the applicant was not serious, and that it had not caused significant harm to society's interests. The court also noted the applicant's disability and absence of previous convictions.", "31. In view of those circumstances and given the negligent nature of the offence, the court decided to impose an administrative warning under Article 30 1 of the Code on Administrative Law Offences, which was a milder administrative penalty than the fine of between LTL 1,000 and LTL 10,000 prescribed by Article 214 12.", "32. The case was examined in the presence of the applicant and a representative of the security intelligence authorities. The applicant left the hearing in the course thereof. At the hearing she was not represented by a lawyer.", "33. The applicant appealed, claiming in particular that Article 10 of the Convention had been violated. She also complained that the first - instance court had not called the experts to the hearing, thereby violating her defence rights.", "34. On 4 May 2001 the Supreme Administrative Court reviewed the case under written procedure. The applicant relied on the conclusion of the psychological experts'report, arguing that “ Lithuanian calendar 2000 ” did not promote hatred against the Poles, Jews or Russians, nor did it claim the superiority of the Lithuanians over other nations. According to the appellate court, these were the conclusions of experts in one field only, whereas the rest of the evidence, namely the political science and bibliographical experts'reports, attested that the comments in the calendar were based on the ideology of extreme nationalism, which rejected the idea of civil society's integration and endorsed xenophobia, national hatred and territorial claims.", "35. The court disagreed with the applicant's argument that her defence rights had been violated because the first - instance court had failed to call the experts to have them challenged at the hearing. The Supreme Administrative Court stated:", "“The [ applicant's ] argument that the [ first-instance ] court violated procedural legal norms because the experts were not present at the court hearing, is not valid. The first - instance court, relying on its inner belief, evaluated the experts'conclusions both as to their reasonableness and as to their comprehensiveness. Article 277 § 1 of the Code on Administrative Law Offences provides for a possibility to summon the experts if there is a need to explain the conclusions the latter had presented. The fact, that this possibility had not been used, cannot be regarded as a violation of procedural legal norms.”", "Relying on the above arguments, the Supreme Administrative Court dismissed the appeal.", "36. On an unspecified date the applicant left Lithuania. She applied for political asylum in Switzerland. Later the applicant returned to Lithuania. She lives in Vilnius." ]

[ "II. RELEVANT DOMESTIC LAW", "37. The Constitution of the Republic of Lithuania, as relevant in this case, provides as follows:", "Article 25", "“ Everyone shall have the right to hold opinions and freely express them.", "No one may be prevented from seeking, receiving and imparting information and ideas.", "Freedom of expression, freedom to receive and impart information may not be restricted in any way other than by law and when it is necessary for the protection of health, dignity, private life, and morals, or for the defence of the constitutional order.", "Freedom of expression and freedom to impart information shall be incompatible with criminal actions - incitement of national, racial, religious, or social hatred, violence or discrimination, slander or disinformation.”", "38. The Code on Administrative Law Offences ( “ the Code ” ) punishes with administrative penalties various minor offences which are not provided for in the domestic substantive criminal law.", "Article 1 of the Code provides that all citizens must ensure respect for legal rules and the rights of other citizens. Article 9 of the Code defines an administrative offence as a wrongful act which causes danger to public order, citizens'rights or the established order of administration.", "Article 20 of the Code provides that administrative punishment is a form of establishing responsibility that has the aim of punishing offenders, educating them to observe the law and preventing them reoffending.", "An administrative warning is a penalty under Article 30 1 and it can be used to replace a harsher penalty the Code prescribes for a particular offence; the administrative warning is also intended to serve as a preventive measure, in the same way as a suspended sentence in criminal law.", "Article 214 12 of the Code punishes the production, storage and distribution of information material promoting national, racial or religious hatred by a fine of between LTL 1,000 and LTL 10,000 with the confiscation of the material, with or without confiscation of its main means of production.", "Article 256 provides that an expert's conclusion can be considered as evidence. Pursuant to Article 277, an expert can be appointed when special knowledge is required for solving the case.", "Under Article 272 of the Code, a person who is liable for an administrative sanction has the right to familiarise himself with the material of the case and to submit explanations and evidence, as well as to lodge requests.", "Article 314 of the Code stipulates that if a fine has been imposed on a person and the latter does not possess the means to pay it, a court can substitute the fine with administrative arrest of up to 30 days.", "39. Article 53 of the Law on Administrative Proceedings (LAP), as in force at the material time, provided that, among other procedural rights, the parties were entitled to question other participants in the process, including witnesses and experts, to take part in the examination of evidence and to present explanations.", "Under Article 130 of the LAP, parties had the right to bring an appeal against a decision of a first - instance court. The appeal should indicate, among other things, evidence to support its grounds.", "Article 144 of the LAP stipulated that appeal proceedings against a decision or ruling in cases relating to administrative law offences were conducted in writing. Upon the decision of the chamber of judges, an oral hearing of a specific case could be held.", "III. RELEVANT INTERNATIONAL LAW", "40. Article 20 § 2 of the International Covenant on Civil and Political Rights, in force in the Republic of Lithuania since 20 February 1992, provides :", "“ Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law ”.", "41. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the Republic of Lithuania on 9 January 199 9, provides, insofar as relevant, as follows:", "Article I", "“ 1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on ... national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ”", "Article 2", "“ 1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means ... of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:", "...", "(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization ... ”", "Article 3", "“ States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. ”", "Article 4", "“ States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:", "(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin ... ”", "42. According to Article 6 § 2 of the Framework Convention for the Protection of National Minorities, signed within the framework of the Council of Europe and in force in the Republic of Lithuania since 1 July 2000:", "“The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.”", "43. The European Commission against Racism and Intolerance General Policy, in its Recommendation no. 1 : Combating racism, xenophobia, anti-Semitism and intolerance, recommends that the Governments of the member States, insofar as relevant, “ensure that national criminal, civil and administrative law expressly and specifically counter racism, xenophobia, anti-Semitism and intolerance ”.", "44. Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, drafted within the framework of the Council of Europe, provides, insofar as relevant, as follows:", "Scope", "“The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media.", "For the purposes of the application of these principles, the term “ hate speech ” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, antisemitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”", "Principle 2", "“ The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others. ”", "Principle 3", "“The governments of the member states should ensure that ... interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover ... any limitation of or interference with freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others. ”", "Principle 4", "“National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.”", "Principle 5", "“National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect's right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "A. The parties'submissions", "1. The applicant", "45. The applicant alleged a breach of Article 6 of the Convention, which provides, insofar as relevant, as follows:", "“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ....", "3. Everyone charged with a criminal offence has the following minimum rights:", "...", "(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... .”", "46. The applicant submitted that her case had been examined by the first - instance court without the experts having been summoned, even though their conclusions were essential to the determination of the merits of the case. In view in particular of the fact that some of the expert conclusions were controversial, the applicant should have been given the opportunity to have the experts examined at a hearing. The applicant also claimed that she had been unable to state her case properly before the Supreme Administrative Court, as it had not held a hearing on appeal.", "2. The Government", "47. The Government stated at the outset that in the present case Article 6 was not applicable under either its “ civil ” or “ criminal ” head. With regard to the non - applicability of Article 6 under the civil head the Government stressed the public-law nature of the dispute. The imposition of the administrative punishment – warning with confiscation of the calendars – had exclusively concerned relations between the citizens and the state. In any event, even assuming that Article 6 applied under its civil head, there had been no need for the domestic courts to call and examine witnesses or experts at a hearing. The Government submitted that at no stage of the proceedings had the applicant requested the examination of the experts. Moreover, there was no reason to doubt the objectivity of the experts'conclusions. The applicant had been able to familiarise herself with the material of the case, including the conclusions, and comment on them either by submitting written explanations or orally at the hearing.", "48. Regarding the examination of the applicant's appeal by the written procedure at the Supreme Administrative Court, the Government relied on Article 137 § 2 of the Law on Administrative Proceedings, which prescribed that proceedings on appeal against court rulings in cases of administrative law offences were normally conducted in writing. Moreover, even if the applicant had made a request for an oral hearing, which she failed to do, the court would not have been obliged to grant such a request. The Government also noted that in line with the practice of the Supreme Administrative Court, an oral hearing is held in cases where the court decides that not enough evidence has been gathered, or that it is controversial, and thus that it is necessary to hear submissions from the parties in person. In the present case the Supreme Administrative Court took into account the clarity of the factual circumstances and the clarity of the applicant's submissions as well as the fact that Vilnius City Second District Court had duly and thoroughly examined the questions of fact and law. Therefore the Government concluded that there had been no breach of Article 6 under its civil head.", "49. As to the applicability of Article 6 of the Convention under its “criminal” head the Government turned to the criteria developed in the Engel case : the legal classification of the offence in domestic law, the nature of the offence and the nature and degree of severity of the possible penalty ( Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22, § 82). It observed that the offence which the applicant committed under Lithuanian law was administrative, while admitting that the criterion had limited relevance. More importantly, elaborating on the scope of the violated legal norm, the Government acknowledged that it had a general effect. Nonetheless, on the question of the purpose of the penalty for breach of Article 214 12 of the Code on Administrative Law Offences, the Government contended that it was more preventive than punitive.", "50. As to the nature and severity of the penalty, the Government stressed that, having taken into consideration the degree of the applicant's guilt and extenuating circumstances, the latter received only a warning under Article 30 1 of the Code as opposed to a fine of between 1,000 LTL (approximately EUR 290) and 10,000 LTL (approximately EUR 2,900) which Article 214 12 of the Code prescribes. Moreover, the administrative punishment imposed could not be converted into a prison sentence. Therefore the Government maintained that the severity of the punishment imposed in no way attained the level required for it to be considered criminal for the purpose of Article 6 of the Convention.", "51. According to the Government, even assuming that Article 6 applied under its “criminal” head, the requirement of fairness of the proceedings had been respected. The Convention does not give the defence an absolute right to question every witness it wishes to call. The Vilnius City Second District Court had exercised its discretion and rightly decided that in view of the clarity of the submitted information there was no need to call the experts to the hearing. The first - instance court had then based its decision not only on the experts'conclusions, but also on other evidence, such as the protocol of the administrative law offence and the submissions of the applicant. The Government stressed that at no stage of the proceedings had the applicant, either in writing or during the hearing, explicitly requested the examination of the experts.", "52. On the issue of the fact that a hearing on appeal had not been held before the Supreme Administrative Court, the Government maintained that the applicant had not lodged any request for a hearing to be held. Moreover, the applicant's rights under Article 6 had been fully respected by the first - instance court, thus the appellate court could have reasonably considered that there had been no need for a hearing and had been right to decide the case under the written procedure as the national law prescribed.", "B. The Court's assessment", "1. Applicability of Article 6 of the Convention", "53. Having regard to the fact that the applicant was sanctioned with an administrative warning and the confiscation of the unsold copies of “ Lithuanian calendar 2000 ”, the question arises whether the proceedings were “criminal” within the autonomous meaning of Article 6 and thus attracted the guarantees under that head. In determining whether an offence qualifies as “criminal”, three criteria are to be applied: the legal classification of the offence in domestic law, the nature of the offence and the nature and degree of severity of the possible penalty (see, among other authorities, Engel and Others, cited above, § 82, and Lauko v. Slovakia, judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2504, § 56).", "54. As to the first criteria the Court acknowledges, and it was not disputed by the parties, that the Code on Administrative Law Offences is not characterised under domestic law as “criminal”. However, the indications furnished by the domestic law of the respondent State have only a relative value (see Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, p. 19, § 52).", "55. In addition, it is the Court's established jurisprudence that the second and third criteria are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003 ‑ X). This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see Lauko, cited above, § 57).", "56. On the question of the nature of the offence committed by the applicant, the Court recalls that she was sanctioned for the production and distribution of “ Lithuanian calendar 2000 ” under Articles 30 1 and 214 12 of the Code on Administrative Law Offences. The latter provision regulates administrative law offences against the established order of administration ( Administraciniai teisės pažeidimai, kuriais kėsinamasi į nustatytą valdymo tvarką ). Accordingly, this legal rule is directed towards all citizens and not towards a given group possessing a special status. The general character of the legal rule in question is further confirmed by Chapter 1 of the Code on Administrative Law Offences, which refers to the fact that all citizens must ensure respect for legal rules and the rights of other citizens, as well as by Article 9 of the Code, which defines an administrative offence as a wrongful act which causes danger to public order, citizens'rights and the established order of administration. It follows that the legal norm in question is of general effect and therefore falls under the second Engel criterion ( Lauko, cited above, § 58 ).", "57. The Court now has to look at the third criterion – the nature and severity of the penalty. The domestic courts found the applicant guilty under Article 214 12 of the Code on Administrative Law Offences, which stipulates a fine of between 1, 000 LTL and 10, 000 LTL, although, taking into consideration that there were mitigating circumstances, the fine was substituted by a warning under Article 30 1 of the Code.", "58. As to the nature of the penalty the Court attaches particular significance to Article 20 of the Code on Administrative Law Offences, which stipulates that the aim of administrative punishment is to punish offenders and to deter them from reoffending. The Court recalls that a punitive character is the customary distinguishing feature of a criminal penalty (see the above-mentioned Öztürk judgment, § 53).", "59. As to the degree of severity of the penalty the Court reiterates that the actual penalty imposed on the applicant is relevant to its determination but cannot diminish the importance of what was initially at stake (see Ezeh and Connors, cited above, § 120, and the jurisprudence cited therein).", "60. Thus, even though in the present case the national courts issued only a warning under Article 30 1 of the Code on Administrative Law Offences, the applicant was punished under Article 214 12, which stipulates a fine of between 1, 000 LTL and 10, 000 LTL. The Court has particular regard to the fact that if a fine has not been paid, Article 314 of the Code provides a possibility to substitute the fine with administrative arrest of up to 30 days. It should not be forgotten that in addition to the warning, the published and undistributed copies of the calendar were confiscated, and confiscation is often regarded as a criminal punishment.", "61. In sum, the general character of the legal provision infringed by the applicant together with the deterrent and punitive purpose of the penalty, as well as the severity of the punishment the applicant risked incurring, suffice to show that the offence in question was, in terms of Article 6 of the Convention, criminal in nature. Therefore the Court considers that Article 6 § 3 (d) is applicable in the instant case.", "2. Opportunity to examine the experts", "62. The Court recalls that the requirements of paragraph 3 of Article 6 of the Convention are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1 ( see Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996 ‑ II, § 66). In this respect the Court has previously held that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument ( Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports of Judgments and Decisions 1997 ‑ III, § 51). However, the use as evidence of statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the rights of the defence have been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (see, among many authorities, Isgrò v. Italy, judgment of 19 February 1991, Series A no. 194-A, p. 12, § 34, and Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 47). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the pre-trial stage or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see the following judgments: Unterpertinger v. Austria, 24 November 1986, Series A no. 110, §§ 31-33, and Saïdi v. France, 20 September 1993, Series A no. 261-C, §§ 43-44). With respect to statements of witnesses who proved to be unavailable for questioning in the presence of the defendant, the Court recalls that paragraph 1 of Article 6 taken together with paragraph 3 requires the Contracting States to take positive steps, in particular to enable the accused to examine or have examined witnesses against him (see Sadak and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII).", "63. In the present case the Court notes that sub-paragraph (d) of paragraph 3 of Article 6 relates to witnesses and not experts. However the Court would like to recall that the guarantees contained in paragraph 3 are constituent elements, amongst others, of the concept of a fair trial set forth in paragraph 1 (art. 6-1) (see, inter alia, Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 15, § 32; Goddi v. Italy, judgment of 9 April 1984, Series A no. 76, p. 11, § 28; and Colozza and Rubinat v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 26). In the circumstances of the instant case, the Court, whilst also having due regard to the paragraph 3 guarantees, including those enunciated in sub-paragraph (d), considers that it should examine the applicant's complaints under the general rule of paragraph 1 (see the above-mentioned Colozza judgment, loc. cit.).", "64. In the circumstances of the case in issue the Court disagrees with the Government's claim about the lack of significance of the experts'conclusions vis-à-vis the other pieces of evidence. The Court takes into consideration the fact that the first - instance court appointed experts to produce political science, bibliographical, psychological and historical reports with the aim of establishing whether “ Lithuanian calendar 2000 ” posed a danger to society, which was the precondition of an administrative law offence. The Court draws particular attention to the fact that when finding the applicant guilty, the national courts of both instances extensively quoted the experts'conclusions. In particular, the Vilnius City Second District Court quoted the conclusions of the political science experts'report that a biased and one-sided portrayal of relations between the nations obstructed the consolidation of civil society and propagated national hatred. The first - instance court also directly relied on the bibliographical experts'report that “ Lithuanian calendar 2000 ” did not meet the generally applied bibliographical standards as to the sources and literature quoted. In determining guilt and coming to the conclusion that the administrative offence had been committed due to the applicant's negligence, the first - instance court relied on the conclusion of psychological experts. From all the foregoing, the Court concludes that in the instant case the conclusions provided by the experts during the pre-trial stage had a key place in the proceedings against the applicant. It is therefore necessary to determine whether the applicant expressed a wish to have the experts examined in open court and, if so, whether she had such an opportunity.", "65. Relying on the documents at its disposition the Court draws attention to the applicant's written request of 12 March 2001, received by the Vilnius City Second District Court the following day, by which the applicant asked the court to postpone the hearing as the experts had not appeared at the hearing for the third time in a row (see § 26 above). The applicant also asked the court to determine the reasons behind the experts'absence and to sanction them. Furthermore, in her appeal the applicant referred to her request to have the experts present at the hearing at the first - instance court and the refusal of that court to summon them. However, the Supreme Administrative Court rejected the applicant's request, noting that under the circumstances of the case her inability to question the experts did not violate any of the procedural legal norms.", "66. Having analysed all the material submitted to it, the Court considers that neither at the pre-trial stage nor during the trial was the applicant given the opportunity to question the experts, whose opinions contained certain discrepancies, in order to subject their credibility to scrutiny or cast any doubt on their conclusions. Relying on its case-law on the subject, the Court concludes that in the instant case the refusal to entertain the applicant's request to have the experts examined in open court failed to meet the requirements of Article 6 § 1 of the Convention. Taking into consideration the above conclusion, the Court finds it unnecessary to separately examine the question of the absence of a public hearing before the Supreme Administrative Court.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "A. The parties'submissions", "1. The applicant", "67. The applicant alleged a breach of Article 10 of the Convention, the relevant part of which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ( ... )", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others ( ... ) .”", "68. The applicant argued that the interference with her freedom of expression had been disproportionate within the meaning of Article 10 § 2 of the Convention in view of the minor threat posed by the publication to the interests of the Lithuanian State or any ethnic groups living in Lithuania or the neighbouring countries. In this connection the applicant emphasised that “ Lithuanian calendar ” had been edited and officially distributed by her for 6 years in the whole territory of Lithuania, attracting no great attention from the public or from State institutions. Similarly, the 2, 000 edition of “ Lithuanian calendar ” had been released in a very limited print run of 3, 000 in the second half of the year 1999, and for the following five months had caused no significant interest or exaggerated reactions, up until the State authorities'intervention in January 2000 after they received a note from the embassy of the Russian Federation. The applicant likewise noted that the Prosecutor General had refused to start criminal proceedings against her as the publication had not had the elements of the criminal offence of instigation of ethnic or racial hatred. She also observed that the information published in “ Lithuanian calendar 2000 ” had already been made public in other historical documents. The applicant also relied on the fact that the publication had contained mainly the expression of her own opinions on and assessment of various historical events, and the State had presented no evidence proving the necessity of such a serious interference. As a result of the proceedings, she had not only received an administrative penalty in the form of a warning, but had also lost the main source of her income, in view of the confiscation and destruction of all the unsold items of “ Lithuanian calendar 2000 ” and her resultant inability to continue editing the publication she had created. The applicant further submitted that the authorities could have pursued means other than halting the distribution of the calendar, such as giving her the opportunity to make certain rectifications or announcements, if necessary, on the cover of the remaining, unsold, versions of the publication. Finally, the domestic courts'finding of a lack of intent on the part of the applicant, as well as the minor danger which the publication represented, were also to be taken into account in discarding the argument that the interference had been necessary in a democratic society.", "2. The Government", "69. The Government argued that Article 10 of the Convention had not been violated. According to them it is of essential importance that the freedom of expression not only stipulates the right to hold opinions, but also imposes duties and responsibilities, and therefore cannot be interpreted as allowing the promotion or dissemination of the ideas of ethnic hatred, hostility and the superiority of one nation vis- à- vis other ethnic groups. The Government admitted that by imposing an administrative punishment there was interference with the applicant's freedom of expression; however it had been justified by the necessity to protect the democratic values on the basis of which Lithuanian society is based. Stressing the sensitivity of the questions related to national minorities and territorial integrity after the re-establishment of independence on 11 March 1990, the Government submitted that “ Lithuanian calendar 2000 ” was clearly promoting the extreme ideology of nationalism, which rejected the idea of the integration of civil society, incited ethnic hatred and intolerance, and questioned territorial integrity and promoted national superiority, which had been proved by the notes sent by the embassies of the Republic of Poland, the Republic of Belarus and the Russian Federation. By withdrawing the publication from distribution and imposing an administrative warning on the applicant, the authorities had sought to prevent the spreading of ideas which might violate the rights of ethnic minorities living in Lithuania as well as endanger Lithuania's relations with its neighbouring countries. In view of the clear threat to these legitimate interests posed by the publication, as well as the minor nature of the penalty ordered against the applicant, the Government considered that the interference had been compatible with the second paragraph of Article 10 of the Convention.", "B. The Court's assessment", "70. The Court finds it clear, and this has not been disputed, that there has been an interference with the applicant's freedom of expression on account of the administrative penalty and the confiscation of the publication, which were applied under Articles 30 1 and 214 12 of the Code on Administrative Law Offences.", "71. The above-mentioned interference contravened Article 10 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn.", "1. Prescribed by law", "72. The applicant and the Government did not question that the interference was in accordance with the law. Taking into consideration that the interference was prescribed by Articles 30 1 and 214 12 of the Code on Administrative Law Offences, the Court sees no reason to depart from the position of the parties.", "2. Legitimate aim", "73. The Court agrees with the Government's submissions that the punishment imposed aimed to protect the values laid out in Article 10 § 2 of the Convention, in particular the reputation and rights of the ethnic groups living in Lithuania and referred to in “ Lithuanian calendar 2000 ”. It remains to be determined whether the interference was necessary in a democratic society.", "“Necessary in a democratic society”", "74. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment (see, among other authorities, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 41). Subject to paragraph 2 of Article 10, it is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ” (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31 and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II ).", "75. The Court also acknowledges that, as set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lingens, cited above, § 41; Jersild v. Denmark, cited above, § 37; Piermont v. France, 27 April 1995, § 26, Series A no. 314; Lehideux and Isorni v. France, 23 September 1998, § 55, Reports of Judgments and Decisions 1998 ‑ VII; Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999 ‑ I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).", "76. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Court recognises that the Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” or “ penalty ” is reconcilable with freedom of expression as protected by Article 10 (see Lingens, cited above, p. 25, § 39, and Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).", "77. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which she made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62; Lingens, cited above, pp. 25-26, § 40; Barfod v. Denmark, judgment of 22 February 1989, Series A no. 149, p. 12, § 28; Janowski, cited above; and News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild, cited above, § 31).", "(a) “Pressing social need”", "78. Turning to the facts of the present case, the Court notes that the applicant was sanctioned on the basis of the statements she had made in her capacity as an editor and publisher. Regarding the context in which “ Lithuanian calendar 2000 ” was published, the Court has particular regard to the general situation of the Republic of Lithuania. The Court takes into account the Government's explanation as to the context of the case that after the re- establishment of the independence of the Republic of Lithuania on 11 March 1990 the questions of territorial integrity and national minorities were sensitive. The Court also notes that the publication received negative reactions from the diplomatic representations of the Republic of Poland, the Russian Federation and the Republic of Belarus. In this regard the Court also notes the obligations of the Republic of Lithuania under international law, namely, to prohibit any advocacy of national hatred and to take measures to protect persons who may be subject to such threats as a result of their ethnic identity (see 40 -4 4 above).", "79. The Court now turns to the question of the specific language the applicant used in “ Lithuanian calendar 2000 ”. The applicant expressed aggressive nationalism and ethnocentrism (“The Lithuanian nation will only survive by being a nationalist nation – no other way exists!”), repeatedly referred to the Jews as perpetrators of war crimes and genocide against the Lithuanians ( “The soviet occupying power, with the help of ... many Jews ... carried out the genocide and colonisation of the Lithuanian nation”, “Through the blood of our ancestors to the worldwide community of the Jews”, “ ... executions against the Lithuanians and the Lithuanian nation, carrying out pro-Jewish politics” ). She also used the same language with reference to the Poles ( “In 1944 ... the Polish Krajova Army killed 12 Lithuanians for the sole reason that they were Lithuanians”, “In 1944 ... the Polish Krajova Army brutally killed more than a hundred Lithuanians ... the Poles, in war conditions, carried out ethnic cleansing. In the whole territory of Lithuania [the members of the Krajova Army] killed about 1 000, and in the ethnic Lithuanian lands about 3 000 more innocent people for the sole reason that they were Lithuanians. The ... events should be regarded as the genocide of the Lithuanian nation .. .” ). The impugned passages contained statements inciting hatred against the Poles and the Jews. The Court considers that these statements were capable of giving the Lithuanian authorities cause for serious concern.", "80. In considering the approach of the domestic courts when deciding whether a “pressing social need” indeed existed and the reasons the authorities adduced to justify the interference, the Court observes that the Vilnius City Second District Court appointed experts, who provided conclusions as to the gravity of the applicant's statements and the danger they posed to society. The courts agreed with the conclusion of the experts that a biased and one -sided portrayal of relations among nations hindered the consolidation of civil society and promoted national hatred. The national courts noted the negative reaction which the publication received from a certain part of Lithuanian society and some foreign embassies. They also took into consideration the experts'conclusions that the applicant's statements could be attributed to the “ ideology of extreme nationalism ”, which promoted national hatred, xenophobia and territorial claims. Having regard to the margin of appreciation left to the Contracting States in such circumstances, the Court considers that the domestic authorities, in the circumstances of the case, did not overstep their margin of appreciation when they considered that there was a pressing social need to take measures against the applicant.", "(b ) “ Proportionality ”", "81. Noting the political dimension of the instant case, the Court nevertheless recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Wingrove v. the United Kingdom, judgment of 25 November 1996, Reports 1996-V, pp. 1957-58, § 58). The Court would also like to reiterate that the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp. 1567-68, § 54, and the Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to Member States on “Hate speech”, quoted in § 42 of this judgment).", "82. The examination of the domestic courts'decisions reveals that the courts recognised that the present case involved the conflict between the right to freedom of expression, established in Article 2 5 of the Constitution of the Republic of Lithuania, and the protection of the reputation of the rights of others. The courts acknowledged the applicant's right to express her ideas, nonetheless stressing that along with freedoms and rights a person also has obligations, inter alia, the obligation not to violate the Constitution and domestic law. They also stressed that personal beliefs cannot justify the breach of national law and the commission of administrative offences. Having balanced the relevant considerations, the national courts found no reason not to apply the relevant articles of the Code on Administrative Law Offences.", "83. The nature and severity of the penalties imposed are among the factors to be taken into account when assessing the proportionality of an interference with the freedom of expression (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Skałka v. Poland, no. 43425/98, §§ 41 ‑ 42, 27 May 2003 ). The Court must also exercise the utmost caution where the measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35).", "84. In the instant case, the Court notes that the confiscation measure imposed on the applicant could be considered relatively serious. However, the applicant did not have a fine imposed on her, which is the punishment Article 214 12 of the Code on Administrative Law Offences stipulated for the acts she had committed. The domestic courts took into account that the applicant had been negligent and had not acted deliberately, that it was her first administrative offence, as well as the fact that she was handicapped, and instead imposed a warning under Article 30 1 of the Code on Administrative Law Offences, which is the mildest administrative punishment available.", "85. Having regard to the foregoing, the Court considers that the applicant's punishment was not disproportionate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify such interference. The interference with the applicant's right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention.", "86. There has consequently been no breach of Article 10 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "87. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "88. The applicant claimed EUR 2,285,050 for pecuniary damage caused by the confiscation of the calendar. She also claimed EUR 2,000,000 for non-pecuniary damage because she had had to leave her homeland and had suffered damage to her health.", "89. The Government submitted that the applicant's claims for just satisfaction were absolutely unreasoned, unsubstantiated and excessive.", "90. The Court is of the view that there is no causal link between the violation found under Article 6 § 1 of the Convention and the alleged pecuniary damage. Consequently, it finds no reason to award the applicant any sum under this head.", "91. However, the Court considers that, in view of the violation of Article 6 § 1, the applicant has suffered non-pecuniary damage, which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the global sum of EUR 2 ,000 under this head.", "B. Costs and expenses", "92. The applicant also claimed EUR 2 ,000 for the legal costs and expenses incurred before the Court.", "93. The Government contested the claim.", "94. The Court notes that the applicant was granted legal aid under the Court's legal aid scheme, under which the sum of EUR 355 has been paid to the applicant's lawyer to cover the submission of the applicant's observations and additional expenses.", "95. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court awards the claim in full, less the sum already paid under the Court's legal aid scheme (EUR 355). Consequently, the Court awards the final amount of EUR 1,645 in respect of the applicant's costs and expenses.", "C. Default interest", "96. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1956. At the time the application was lodged he lived in Elgoibar ( Gipuzkoa ).", "7. At the time of the events, the applicant was spokesperson for Sozialista Abertzaleak, a left-wing Basque separatist parliamentary group in the Parliament of the Autonomous Community of the Basque Country.", "A. Background to the case", "8. On 21 February 2003, following an order issued by central investigating judge no. 6 of the Audiencia Nacional, the premises of the daily newspaper Euskaldunon Egunkaria were searched and then closed, on account of the newspaper ’ s alleged links with the terrorist organisation ETA. Ten persons were arrested, including the newspaper ’ s senior managers ( members of the board and the editor-in-chief). After spending five days in secret detention the persons concerned complained that they had been subjected to ill-treatment in police custody.", "9. On 26 February 2003 the President of the Autonomous Community of the Basque Country received the King of Spain at the opening of an electricity power station in the province of Biscay.", "10. At a press conference held the same day in San Sebastián, the applicant, as spokesperson for the Sozialista Abertzaleak parliamentary group, outlined his group ’ s political response to the situation concerning the newspaper Euskaldunon Egunkaria. Replying to a journalist he said, with reference to the King ’ s visit to the Basque Country, that “it [was] pathetic”, adding that it was “a genuine political disgrace” for the President of the Autonomous Community of the Basque Country to be inaugurating the project with Juan Carlos of Bourbon and that “their picture [ was ] worth a thousand words ”. He went on to say that inaugurating a project with the King of the Spaniards, who was the Supreme Head of the Civil Guard ( Guardia Civil ) and the Commander-in- Chief of the Spanish armed forces, was absolutely pitiful. Speaking about the police operation against the newspaper Euskaldunon Egunkaria, he added that the King was in charge of those who had tortured the persons detained in connection with the operation. He spoke in the following terms:", "“How is it possible for them to have their picture taken today in Bilbao with the King of Spain, when the King is the Commander-in- Chief of the Spanish army, in other words the person who is in charge of the torturers, who defends torture and imposes his monarchical regime on our people through torture and violence?”", "B. The criminal proceedings in the Basque Country High Court of Justice", "11. On 7 April 2003 the public prosecutor lodged a criminal complaint against the applicant for “serious insult against the King” within the meaning of Article 490 § 3 of the Criminal Code read in conjunction with Article 208, on account of his remarks made on 26 February 2003.", "12. In the proceedings before the Basque Country High Court of Justice, which had jurisdiction to try the applicant because of his status as a member of parliament, the applicant argued that his remarks had constituted political criticism directed against the Head of the government of the Basque Country. He added that to say that the King of Spain was the Supreme Head of the Civil Guard did not imply any intention to undermine dignity or honour; it was merely a statement of the political reality in the Spanish State, where the King exercised supreme command over the armed forces. The applicant further argued that there was no insult or attempt to dishonour in saying that the Civil Guard had tortured the persons detained in connection with the closure of the newspaper Euskaldunon Egunkaria because that was the reality, and proceedings had been instituted in that connection before the Madrid investigating judge no. 5. Numerous public figures had also commented on the subject. In sum, the applicant, as a politician, had sought to express political criticism in the context of freedom of expression, one of the foundations of the rule of law and democracy. He pointed out in that regard that politicians had greater freedom of manoeuvre when it came to informing society about matters of public interest.", "13. In a judgment of 18 March 2005, the High Court of Justice found the applicant not guilty of the charges against him. After stating that his remarks had been “clearly offensive, improper, unjust, ignominious and divorced from reality ”, the court found as follows:", "“... This is not an issue concerning the private life of the Head of State but one of rejection of the ties of political power deriving from the hereditary nature of the institution which he personally symbolises. ... [ C ] riticism of a constitutional institution is not excluded from the scope of the right to freedom of expression; in this case the latter has the status of a constitutional right which takes precedence over the right to honour. The Constitution does not guarantee the right to freedom of expression solely in relation to certain points of view that are considered correct, but in relation to all ideas, subject to the limits which it lays down ... ”", "14. The High Court of Justice summed up as follows:", "“[T]he [applicant ’ s] remarks were made in a public, political and institutional setting, regard being had not only to the speaker ’ s status as a member of parliament but also to the authority to which they were addressed, namely the State ’ s highest judicial authority, and to the context of political criticism of the [ Head of the government of the Basque Country ] for his official hospitality in receiving His Majesty King Juan Carlos I in the wake of the closure of the newspaper [ Euskaldunon ] Egunkaria and the detention of its senior managers, and the latter ’ s public allegations of ill ‑ treatment. This context is therefore unconnected to the innermost core of individual dignity protected by law from any interference by third parties.”", "C. The appeal on points of law to the Supreme Court", "15. The public prosecutor lodged an appeal on points of law, arguing firstly that the law protected the honour of the King as a specific individual possessed of personal dignity, who had been the object of the offence of insult, and secondly that the law was aimed at ensuring respect for the symbolic content of the institution of the Crown as established by the Spanish Constitution and “represented by the Head of State, the symbol of its unity and permanence”. The seriousness of the offence could be inferred from the fact that the legislature had sought to afford increased protection to the dignity of the King, including vis-à-vis other public authorities (Articles 496 and 504 of the Criminal Code). Furthermore, the inviolability of the King, as proclaimed in Article 56 § 3 of the Constitution, demonstrated the unique position occupied by the Crown in the system of the 1978 Spanish Constitution. That constitutional position highlighted the disproportionate nature of the vexatious and insulting remarks made by the applicant. In the view of the public prosecutor, who referred several times to the case-law of the Strasbourg Court, it was clear that the King had been performing official duties and that he was a figure in the public eye; however, that did not deprive him of the right to respect for his honour. In that regard, the public prosecutor pointed out that Article 20 § 1 (a) of the Constitution did not protect a supposed right to proffer insults. Drawing a parallel with the special protection to be afforded under Article 10 § 2 of the Convention to the judiciary, the public prosecutor further argued that the same protection should be afforded to the Head of State, who was the “symbol of the unity and permanence of the State” and was above party politics, from the “destructive and baseless attack” constituted by the applicant ’ s remarks. Lastly, in the public prosecutor ’ s view, the applicant ’ s remarks could be said to amount to “hate speech” within the meaning of the Court ’ s case ‑ law, given the existing situation with regard to terrorist attacks.", "16. In two judgments delivered on 31 October 2005, the Supreme Court set aside the judgment of the lower court, making several references to the Court ’ s case-law. It sentenced the applicant to one year ’ s imprisonment, suspended his right to stand for election for the duration of the sentence and ordered him to pay costs and expenses, on the ground of his criminal liability for the offence of serious insult against the King. The Supreme Court considered the impugned remarks to have been value judgments rather than statements of fact. The remarks, described as “ignominious” by the lower court, had expressed contempt for the King and the institution he represented, affecting the innermost core of his dignity by accusing him of one of the most serious manifestations of criminal conduct in a State governed by the rule of law. The exercise of the right to freedom of expression had therefore been contrary to the principle of proportionality and had been unnecessary, overstepping the limits beyond which criticism could be deemed to be hurtful or upsetting. The Supreme Court further observed that the context in which the remarks had been made did nothing to alter their offensiveness. Firstly, the proceedings relating to the complaints of ill-treatment of the persons detained in connection with the operation against the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. Secondly, the impugned remarks could not be construed as a reaction or response to a political debate with the King. In view of the seriousness of the insulting comments and the fact that the applicant had deliberately expressed them in public, the Supreme Court sentenced him to one year ’ s imprisonment.", "17. Judge P.A.I. issued a dissenting opinion in which he argued that the comments complained of had been of a political nature, in view of the applicant ’ s status as a member of parliament and the context in which they had been made, namely the King ’ s visit to the Basque Country and the attitude of the Head of the government of the Basque Country in that regard. The judge agreed with the Basque Country High Court of Justice that the remarks had not targeted the King ’ s private life or his personal honour but had been directed solely at his institutional role as Commander-in-Chief of the Spanish armed forces. The applicant had not claimed that the King was responsible for actual acts of torture, only that he was strictly liable as Head of the State apparatus. The judge pointed out that the limits of freedom of expression were wider with regard to institutions since the latter did not possess honour, an attribute that was confined to individuals.", "D. The amparo appeal to the Constitutional Court", "18. The applicant lodged an amparo appeal with the Constitutional Court alleging, inter alia, a breach of his right to freedom of expression (Article 20 § 1 (a) of the Constitution) and of his right to freedom of ideas (Article 16 of the Constitution).", "19. In the applicant ’ s view, the Supreme Court ’ s judgment had incorrectly weighed the competing interests at stake, as the comments complained of had not contained any insulting or vexatious expressions, had been directed principally against the President of the Autonomous Community of the Basque Country rather than the King of Spain and, in any event, had reflected the reality of the situation and had not referred to the King ’ s private life or his attitudes. The statements in question had not been disproportionate in the context in which they had been uttered, namely the warm welcome extended to the King of Spain by the government of the Basque Country in the wake of the closure of the daily newspaper Euskaldunon Egunkaria and, in connection with that closure, the detention of several individuals who had stated before the courts and the Basque Parliament that they had been tortured.", "20. In a decision ( auto ) of 3 July 2006, served on 11 July 2006, the Constitutional Court declared the applicant ’ s amparo appeal inadmissible as manifestly devoid of constitutional content. The Constitutional Court noted at the outset that the right to freedom of expression did not encompass a right to proffer insults. It pointed out in that connection that the Constitution did not prohibit the use of hurtful expressions in all circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive and ignominious and were not pertinent for the purpose of conveying the opinions or information in question.", "21. The Constitutional Court considered that the weighing of the competing rights at stake had been carried out in an appropriate manner by the Supreme Court, as the latter had concluded that the impugned remarks had been disproportionate, while taking into account the context in which they had been made, the public nature of the act, the public interest in the subject in question (the use of torture) and the fact that the persons targeted (a politician and the King) were public figures. In the Constitutional Court ’ s view, there was no denying the ignominious, vexatious and derogatory nature of the impugned remarks, even when directed against a public figure. That finding was all the more valid with regard to the King, who, by virtue of Article 56 § 3 of the Constitution, was “not liable” and was a “symbol of the unity and permanence of the State”. Regard being had to his role as “arbitrator and moderator of the lawful functioning of institutions”, the King occupied a neutral position in political debate. This implied that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions. The Constitutional Court stated as follows:", "“... [I]n a democratic system which recognises freedom of ideas and freedom of expression, the fact that [the figure of the King] is characterised in this way does not shield him from all criticism ‘ in the exercise of his duties or on account of or in connection with them ’ ...; however, such criticism may not extend to attributing acts of public authority to the King – which, as indicated above, is prohibited by the Constitution – as a pretext for gratuitous attacks on his dignity or public esteem.”", "22. Lastly, the Constitutional Court held that the applicant ’ s remarks, on account of their obviously derogatory nature, had clearly gone beyond what could be considered legitimate. It agreed with the Supreme Court that the remarks had expressed open contempt for the King and the institution he embodied, affecting the essential core of his dignity. Hence, such statements could manifestly not fall within the exercise of the right to freedom of expression.", "E. Enforcement of the sentence and subsequent events", "23. In a decision ( auto ) of 15 May 2006, the Basque Country High Court of Justice ordered that enforcement of the applicant ’ s sentence be stayed for three years. According to the Government, his sentence was remitted on 16 July 2009.", "24. The applicant was imprisoned on 8 June 2007 after the Supreme Court upheld a judgment of the Audiencia Nacional of 27 April 2006 sentencing him to fifteen months ’ imprisonment for publicly defending terrorism.", "25. He is currently in pre-trial detention in connection with other criminal proceedings.", "II. Freedom to criticise the State or public institutions", "The State, the government or any other institution of the executive, legislative or judicial branch may be subject to criticism in the media. Because of their dominant position, these institutions as such should not be protected by criminal law against defamatory or insulting statements. Where, however, these institutions enjoy such a protection, this protection should be applied in a restrictive manner, avoiding in any circumstances its use to restrict freedom to criticise. Individuals representing these institutions remain furthermore protected as individuals.", "...", "VI. Reputation of political figures and public officials", "Political figures should not enjoy greater protection of their reputation and other rights than other individuals, and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures. ...", "...", "VIII. Remedies against violations by the media", "Political figures and public officials should only have access to those legal remedies against the media which private individuals have in case of violations of their rights by the media. ... Defamation or insult by the media should not lead to imprisonment, unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty, especially where other fundamental rights have been seriously violated through defamatory or insulting statements in the media, such as hate speech. ”", "31. Parliamentary Assembly Resolution 1577 (2007), entitled “Towards decriminalisation of defamation”, is worded as follows:", "“ ...", "11. [The Assembly] notes with great concern that in many member States the law provides for prison sentences for defamation and that some still impose them in practice – for example, Azerbaijan and Turkey.", "...", "13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts States whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms.", "...", "17. The Assembly accordingly calls on the member States to:", "17.1. abolish prison sentences for defamation without delay;", "17.2. guarantee that there is no misuse of criminal prosecutions ...;", "17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation;", "...", "17.6. remove from their defamation legislation any increased protection for public figures, in accordance with the Court ’ s case - law ... ”" ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW", "A. National legislation", "26. The relevant provisions of the Spanish Constitution read as follows:", "Article 14", "“ Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.”", "Article 16", "“1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law.", "... ”", "Article 20", "“1. The following rights shall be recognised and protected:", "(a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction;", "...", "2. The exercise of these rights may not be restricted by any prior censorship.", "...", "4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’ s likeness and to the protection of youth and children.", "... ”", "Article 56", "“1. The King shall be the Head of State, the symbol of its unity and permanence. He shall be the arbitrator and moderator of the lawful functioning of institutions. He shall be the supreme representative of the Spanish State in its international relations, in particular with those nations belonging to its historic community, and shall exercise the functions expressly attributed to him by the Constitution and the law.", "...", "3. The King shall be inviolable and shall not be liable. ... ”", "Article 62", "“It shall be incumbent on the King to:", "...", "(h) exercise supreme command over the armed forces;", "( i ) exercise the right of clemency in accordance with the law, but without the power to grant general pardons", "... ”", "27. The relevant provisions of the Criminal Code (as amended by Institutional Act no. 10/1995 of 23 November 1995) read as follows:", "Article 208", "“ Acts or expressions which undermine another ’ s dignity by attacking his or her reputation or self-esteem shall constitute insult.", "Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence ... ”", "Article 209", "“The offence of serious public insult shall be punishable by a day-fine payable for between six and fourteen months. Where the insult is not proffered publicly, the fine shall be payable for between three and seven months.”", "28. With regard to the offence of insult against the King, Article 490 of the Criminal Code provides for the penalties indicated below :", "Article 490", "“...", "3. Anyone who falsely accuses or insults the King or any of his ascendants or descendants, the Queen consort or the consort of the Queen, the Regent or any member of the Regency, or the Crown Prince, in the exercise of his or her duties or on account of or in connection with them, shall be liable to a term of imprisonment of between six months and two years if the false accusation or insult is of a serious nature, and otherwise to a day-fine payable for between six and twelve months.”", "This provision is contained in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter II (“Offences against the Crown”).", "29. Articles 496 and 504 of the Criminal Code deal with the offence of serious insult against Parliament, the government or other State institutions. These provisions feature in Title XXI of Book II of the Criminal Code ( “Offences against the Constitution”), under Chapter III (“Offences against State institutions and the separation of powers”).", "Article 496", "“ Anyone who seriously insults the Cortes Generales [Congress of Deputies and Senate] or the legislative assembly of an Autonomous Community ... shall be liable to a day-fine payable for between twelve and eighteen months ... ”", "Article 504", "“Anyone who seriously threatens, falsely accuses or insults the nation ’ s government, the General Council of the Judiciary, the Constitutional Court, the Supreme Court, or the Governing Council or High Court of Justice of an Autonomous Community shall be liable to a day-fine payable for between twelve and eighteen months ... ”", "B. Council of Europe texts", "30. Reference should first be made to the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004, which provides:", "“ The Committee of Ministers of the Council of Europe,", "...", "Conscious that some domestic legal systems still grant legal privileges to political figures or public officials against the dissemination of information and opinions about them in the media, which is not compatible with the right to freedom of expression and information as guaranteed by Article 10 of the Convention;", "...", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "32. The applicant alleged that the Supreme Court decision finding him guilty of serious insult against the King amounted to undue interference with his right to freedom of expression under Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "33. The Government contested that argument.", "A. Admissibility", "34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "35. The applicant submitted firstly that the provision of the Criminal Code on which his conviction had been based (Article 490 § 3) was not worded with sufficient precision and clarity. The increased protection provided for by Article 490 § 3 of the Criminal Code had in reality been turned into an absolute defence of the constitutional monarchy, going beyond the defence of individuals ’ honour and dignity. In the applicant ’ s view, such a broad interpretation of the provision concerned could not be said to be “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "36. Furthermore, the interference had not pursued a “legitimate aim” within the meaning of Article 10 § 2, as it had been intended as symbolic punishment of any attempt to question the institution of the monarchy and, accordingly, the Constitution.", "37. The applicant contended that his conviction had been neither proportionate to the legitimate aim pursued nor “necessary in a democratic society”. He referred to his own status as spokesperson for the Basque separatist parliamentary group Sozialista Abertzaleak and to the particular circumstances of the case, namely the closure of the Basque daily newspaper Euskaldunon Egunkaria and the outcry caused in the Basque Country by the allegations that the persons detained in connection with that operation had been tortured. His remarks had dealt with a topic of public interest, namely the use of torture by the Spanish security forces in the fight against terrorism, a practice confirmed by numerous international human rights organisations. As to the Supreme Court ’ s argument that his remarks had been without foundation since the proceedings relating to the complaints alleging torture had been discontinued, the applicant submitted firstly that he could not have known when he was making his remarks what the outcome of the criminal investigation would be, since the latter had taken place several months after the events; secondly, no final decision had been issued discontinuing the proceedings. In that connection, the applicant, referring to the judgment in Martinez Sala and Others v. Spain ( no. 58438/00, § 160, 2 November 2004 ), stated that, in Spain, numerous complaints alleging torture were filed away without further action being taken although no detailed investigation had been carried out. Furthermore, the monarch had granted pardons under the Spanish Constitution to numerous members of the Spanish security forces convicted of torture. The applicant cited by way of example the decision of the United Nations Committee Against Torture in the case of Kepa Urra Guridi v. Spain ( Communication no. 212/2002, UN doc. CAT/C/34/D/212/2002). It was against this background that his remarks had to be seen; the applicant claimed that he had himself been subjected to torture following his arrest in July 1987.", "38. Referring to the Court ’ s case-law on the subject of insults against a Head of State ( see Colombani and Others v. France, no. 51279/99, § § 66 ‑ 69, ECHR 2002 ‑ V, and Pakdemirli v. Turkey, no. 35839/97, § § 51 ‑ 52, 22 February 2005 ), the applicant argued that the excessive protection afforded to the Crown under Spanish criminal law was incompatible with Article 10 of the Convention. Whereas in the case of ordinary individuals and other institutions an insult had to be characterised as serious in order for the person concerned to be prosecuted, in the case of the Crown any kind of insult sufficed and was punishable. The offence of serious insult against the Crown was unique in carrying a prison sentence ( of six months to two years); under ordinary law and in the case of other institutions, the penalty for serious insult was a fine. The provisions in question therefore conferred on the Crown “ a special privilege that [could not] be reconciled with modern practice and political conceptions ” (the applicant referred to Colombani and Others, cited above, § 68). The applicant alluded to the legislative trends in Council of Europe member States, most of which dealt with attacks against the sovereign under the ordinary law. Hence, making insults against the King a criminal offence was not necessary in a democratic society, especially as the offences of criminal defamation and proffering insults provided Heads of State or monarchs with sufficient remedy against remarks that damaged their honour.", "39. As to the proportionality of the penalty, the applicant stressed that from 8 June 2007 to 30 August 2008 he had served the prison sentence that had become enforceable after the Supreme Court had upheld his 2006 conviction for publicly defending terrorism. Referring to the Court ’ s case ‑ law, according to which a prison sentence imposed for an offence committed in the context of political debate was compatible with freedom of expression only in exceptional circumstances ( see Feridun Yazar v. Turkey, no. 42713/98, § 27, 23 September 2004 ), he submitted that there had been no grounds in the present case for imposing such a penalty, which in his view was manifestly disproportionate to the aim pursued. Lastly, he argued that the King had not suffered any harm and that no civil proceedings had been brought.", "(b) The Government", "40. The Government contended that the applicant ’ s remarks would have constituted a serious slur on the honour of whoever happened to be the target, including of course the King. Describing someone as a torturer amounted to saying that the person concerned had violated the core values of the society of which he or she was a member and conveying a negative view of his or her dignity and integrity. This was especially so in the instant case, where the target of the remarks had a particular duty to adhere to and ensure adherence to the core values in question.", "41. In the Government ’ s view, the Spanish courts had taken due account of the Court ’ s case-law on the subject. In that connection, they pointed out that the case-law of the Constitutional Court recognised the importance of freedom of expression as an essential guarantee of free public opinion, which was inextricably linked to democratic pluralism. However, the right to freedom of expression did not protect a supposed right to proffer insults and hence did not encompass vexatious remarks which were irrelevant and superfluous for the purposes of conveying the opinions or information concerned. Referring to the Court ’ s case-law ( see Lingens v. Austria, 8 July 1986, Series A no. 103 ), the Government stressed that although the limits of permissible criticism were wider with regard to public figures, the latter ’ s reputation must also be protected for the purposes of Article 10 § 2 of the Convention even where the persons concerned were not acting in a private capacity.", "42. The Government stressed the unique institutional position occupied by the King under the Spanish Constitution, pointing out that the King could not be held liable and that his neutral status in political debate under the Constitution meant that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions.", "43. Even assuming that the limits of criticism of the King of Spain by a member of a regional parliament were wider, neither the Spanish Constitution nor the Convention could be deemed to recognise a right to proffer insults, in disregard of a person ’ s dignity. The Government agreed with the Spanish courts that the interference complained of had not been directed against the applicant ’ s anti-monarchy views but against specific expressions which had overstepped the bounds of legitimate exercise of the right to free expression, in breach of the King ’ s right to honour. Lastly, the Spanish courts had given ample reasons for the applicant ’ s conviction, in the light of the background to the case.", "2. The Court ’ s assessment", "44. It is not disputed between the parties that the applicant ’ s conviction amounted to “interference by public authority” with his right to freedom of expression. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims.", "(a) “Prescribed by law”", "45. The Court notes that the statutory basis for the applicant ’ s conviction was Article 490 § 3 of the Criminal Code, which makes it a punishable offence to insult the King. As to whether that provision was applied by the courts examining the case on the merits with the aim of defending the monarchy, as suggested by the applicant, to the point of making the legal rule in question less foreseeable, this question is actually linked to the relevance and sufficiency of the reasons given by the domestic courts to justify the interference with the applicant ’ s freedom of expression. The Court will therefore examine this issue in the context of the “necessity” of the interference.", "46. The Court concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "(b) Legitimate aim", "47. In the Court ’ s view, the interference pursued one of the aims enumerated in Article 10 § 2, namely the “protection of the reputation or rights of others”, in this case the reputation of the King of Spain.", "(c) “Necessary in a democratic society”", "( i ) General principles", "48. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV; and Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, § 96, ECHR 2009 ). As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.", "49. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.", "The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Mamère v. France, no. 12697/03, § 19, ECHR 2006 - XIII, and Lindon, Otchakovsky -Laurens and July, cited above, § 45).", "50. There is little scope under Article 10 § 2 for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance – or in matters of public interest. While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interference with the freedom of expression of a member of parliament calls for the closest scrutiny on the part of the Court (see Castells v. Spain, 23 April 1992, § 42, Series A no. 236 ).", "Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens, cited above, § 42; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 40, 27 May 2004; and Lopes Gomes da Silva v. Portugal, no. 37698/97, § 30, ECHR 2000 ‑ X ). He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (see, among other authorities, Pakdemirli, cited above, § 45, and Artun and Güvener v. Turkey, no. 75510/01, § 26, 26 June 2007 ). The Court has also acknowledged that public officials are subject to wider limits of criticism than private individuals, although the criteria applied to them cannot be the same as for politicians (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I ).", "(ii) Application of these principles", "51. The Court notes at the outset that the applicant was undeniably speaking in his capacity as an elected representative and spokesperson for a parliamentary group, so that his comments were a form of political expression (see Mamère, cited above, § 20). Furthermore, the applicant ’ s remarks concerned an issue of public interest in the Basque Country, namely the welcome extended by the Head of the government of the Basque Country to the King of Spain during the latter ’ s official visit to the Basque Country on 26 February 2003, against the background of the closure of the Basque ‑ language newspaper Euskaldunon Egunkaria and the detention of its senior management a few days previously, and of the latter ’ s public allegations of ill-treatment. The applicant ’ s statements were therefore made in the context of a debate on matters of public interest. Accordingly, the margin of appreciation available to the authorities in establishing the “ necessity ” of the penalty imposed on the applicant was particularly narrow (see, mutatis mutandis, Mamère, cited above, § 20).", "52. The Court must now examine the reasons leading to the impugned decisions by the domestic courts, in order to determine whether they were relevant and sufficient to justify the applicant ’ s conviction on the basis of the legitimate aim referred to, namely the protection of the reputation of the King of Spain. The Supreme Court, in overturning the applicant ’ s acquittal by the Basque Country High Court of Justice, sentenced him to one year ’ s imprisonment for serious insult against the King. It considered that the impugned remarks had directly targeted the King in person and the institution he embodied and that they had overstepped the limits of permissible criticism.", "53. As regards the terms in which the applicant expressed himself, the domestic courts found them to have been ignominious, vexatious and derogatory in so far as they accused the Head of State of “ one of the most serious manifestations of criminal conduct in a State governed by the rule of law ”, namely torture (“ in charge of the torturers”, “who defends torture” and “ [who] imposes his monarchical regime on our people through torture and violence”). The Court points out in that regard that a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Lindon, Otchakovsky ‑ Laurens and July, cited above, § 55). Furthermore, the requirement to furnish facts in support of a value judgment is less stringent if the information is already known to the general public (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII ).", "In the present case, the Court observes that the Supreme Court stated in its judgment that the impugned remarks had been value judgments rather than statements of fact. However, it took the view that the context in which they had been made did not justify their seriousness, in view of the fact that the proceedings concerning the allegations of torture made by the management of the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. The Court observes that there was a sufficiently strong link between the applicant ’ s remarks and the allegations of ill-treatment made public by the editor-in-chief of Euskaldunon Egunkaria on his release. It further notes that the terms used by the applicant could be understood as forming part of a wider public debate on the possible implication of the State security forces in cases of ill ‑ treatment.", "54. Turning to the expressions themselves, the Court accepts that the language used by the applicant could have been considered provocative. However, while any individual who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limits, particularly with regard to respect for the reputation and rights of others, a degree of exaggeration, or even provocation, is permitted; in other words, a degree of immoderation is allowed (see Mamère, cited above, § 25). The Court observes that, while some of the remarks made in the applicant ’ s speech portrayed the institution embodied by the King in a very negative light, with a hostile connotation, they did not advocate the use of violence, nor did they amount to hate speech, which in the Court ’ s view is the essential element to be taken into account (see, conversely, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV ). It also notes that neither the domestic courts nor the Government sought to justify the applicant ’ s conviction by reference to incitement to violence or hate speech.", "The Court further takes account of the fact that the remarks were made orally during a press conference, so that the applicant had no possibility of reformulating, refining or retracting them before they were made public (see Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000, and Birol v. Turkey, no. 44104/98, § 30, 1 March 2005 ).", "55. Next, the Court notes that, in convicting the applicant, the domestic courts relied on Article 490 § 3 of the Criminal Code, which affords the Head of State a greater degree of protection than other persons (protected by the ordinary law on insults) or institutions (such as the government and Parliament) with regard to the disclosure of information or opinions concerning them, and which lays down heavier penalties for insulting statements (see paragraphs 27-29 above). In that connection, the Court has already stated that providing increased protection by means of a special law on insults will not, as a rule, be in keeping with the spirit of the Convention. In its judgment in Colombani and Others, it examined section 36 of the French Act of 29 July 1881, which has since been repealed, concerning offences against foreign Heads of State and diplomats. It observed that the application of section 36 of the 1881 French Act conferred on foreign Heads of State a special privilege, shielding them from criticism solely on account of their function or status; this, in the Court ’ s view, could not be reconciled with modern practice and political conceptions. The Court therefore held that it was the special protection afforded to foreign Heads of State by section 36 that undermined freedom of expression, not their right to use the standard procedure available to everyone to complain if their honour had been attacked (see Colombani and Others, cited above, § 69). In Artun and Güvener, the Court took the view that its findings in Colombani and Others on the subject of foreign Heads of State applied with even greater force to a State ’ s interest in protecting the reputation of its own Head of State. That interest, in the Court ’ s view, could not serve as justification for affording the Head of State privileged status or special protection vis-à-vis the right to convey information and opinions concerning him (see Artun and Güvener, cited above, § 31; see also, with regard to excessive protection of the status of the President of the Republic in civil cases, Pakdemirli, cited above, § 52).", "56. The Court considers that, despite the differences compared with a republican system like that of Turkey, the principles established in its own case-law in that regard are also valid in relation to a monarchy like Spain, where the King occupies a unique institutional position, as pointed out by the Government. In Pakdemirli, the excessive protection afforded to the President of the Republic derived also from the fact that the holder of the office ceased to have the status of politician and acquired that of statesman (see Pakdemirli, cited above, § 51). In the Court ’ s view, the fact that the King occupies a neutral position in political debate and acts as an arbitrator and a symbol of State unity should not shield him from all criticism in the exercise of his official duties or – as in the instant case – in his capacity as representative of the State which he symbolises, in particular from persons who challenge in a legitimate manner the constitutional structures of the State, including the monarchy. In that connection, the Court notes that the Basque Country High Court of Justice, which acquitted the applicant at first instance, observed that criticism of a constitutional institution was not excluded from the scope of the right to freedom of expression (see paragraph 13 above). The Court cannot but emphasise that freedom of expression is all the more important when it comes to conveying ideas which offend, shock or challenge the established order (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009 ). Furthermore, it considers that the fact that the King is “not liable” under the Spanish Constitution, particularly with regard to criminal law, should not in itself act as a bar to free debate concerning possible institutional or even symbolic responsibility on his part in his position at the helm of the State, subject to respect for his personal reputation.", "57. In that connection, the Court points out that the remarks at issue in the instant case did not concern the King ’ s private life (see, conversely, Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, 4 June 2009, a case concerning strictly personal aspects of the Austrian President ’ s private life; see also Von Hannover v. Germany, no. 59320/00, § 64, ECHR 2004 ‑ VI ) or his personal honour, nor did they amount to a gratuitous personal attack against him (see, conversely, Pakdemirli, cited above, § 46). It also notes that, in the view of the Basque Country High Court of Justice, the applicant ’ s statements had been made in a public and political context unconnected to the “ innermost core of individual dignity” (see paragraph 14 above). Nor did the remarks in question criticise the manner in which the King performed his official duties in a particular sphere or attribute any individual responsibility to him in the commission of a specific criminal offence. The applicant ’ s comments related solely to the King ’ s institutional responsibility as the symbol and Head of the State apparatus and of the forces which, according to the applicant, had tortured the editors and directors of the newspaper Euskaldunon Egunkaria.", "58. Lastly, as regards the penalty imposed, while it is perfectly legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see, mutatis mutandis, Castells, cited above, § 46; see also the Council of Europe materials, paragraphs 30 and 31 above). The Court observes in that regard that the nature and severity of the penalties imposed are also factors to be taken into consideration in assessing the “proportionality” of the interference. It notes the particularly harsh nature of the penalty imposed: the applicant was sentenced to one year ’ s imprisonment. His criminal conviction also resulted in his right to stand for election being suspended for the duration of his sentence, even though he was a politician.", "59. The Court has previously held that, although sentencing is in principle a matter for the national courts, the imposition of a prison sentence for an offence in the area of political speech will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Bingöl v. Turkey, no. 36141/04, § 41, 22 June 2010, and, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 115, ECHR 2004 ‑ XI ). It refers in that regard to the guidance given in the materials of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe concerning prison sentences in the area of political speech (see paragraphs 30 and 31 above).", "60. There is nothing in the circumstances of the present case, in which the impugned remarks were made in the context of a debate on an issue of legitimate public interest, to justify the imposition of such a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect, notwithstanding the fact that enforcement of the applicant ’ s sentence was stayed. While that fact may have eased the applicant ’ s situation, it did not erase his conviction or the long-term effects of any criminal record (see, mutatis mutandis, Artun and Güvener, cited above, § 33, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009 ).", "61. In view of the foregoing, even assuming that the reasons given by the domestic courts could be said to be relevant, they are not sufficient to demonstrate that the interference complained of was “necessary in a democratic society”. Notwithstanding the margin of appreciation left to the national authorities, the Court considers that the applicant ’ s conviction was disproportionate to the aim pursued.", "62. Accordingly, there has been a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 10 OF THE CONVENTION", "63. The applicant alleged that he had been the victim of discrimination based on his political opinions and his function as a spokesperson for the Basque separatist movement. He relied on Article 14 of the Convention taken in conjunction with Article 10. Article 14 provides:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "64. The Court observes that this complaint is linked to the complaint examined above and should therefore likewise be declared admissible.", "65. Having regard to its finding in relation to Article 10 of the Convention (see paragraph 62 above), the Court considers that it is not necessary to examine separately the applicant ’ s complaint under Article 14 taken in conjunction with Article 10 (see, among other authorities, Bingöl, cited above, § 44).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "66. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "67. The applicant claimed 78,586 euros (EUR) in respect of pecuniary damage. He submitted that this amount corresponded to the losses actually sustained as a direct consequence of the alleged violation, and especially the loss of his allowance as a member of parliament on account of his imprisonment from 8 June 2007 to 30 August 2008.", "68. The Government contested the claim.", "69. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.", "B. Non-pecuniary damage", "70. The applicant claimed EUR 30,000 in respect of non-pecuniary damage.", "71. The Government considered the amount claimed to be excessive.", "72. The Court considers that the applicant sustained, on account of the violation found, non-pecuniary damage that cannot be compensated by the mere finding of a violation. Ruling on an equitable basis as required by Article 41 of the Convention, it awards the applicant the sum of EUR 20,000 in respect of non-pecuniary damage.", "C. Costs and expenses", "73. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court.", "74. The Government contested the claim.", "75. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant the sum of EUR 3,000 for the proceedings before the Court.", "D. Default interest", "76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicants were born in 1978, 1981, 1987 and 1986 respectively. The first applicant lives in Gothenburg and the other applicants live in Sundsvall.", "8. In December 2004 the applicants, together with three other persons, went to an upper secondary school ( gymnasieskola ) and distributed approximately a hundred leaflets by leaving them in or on the pupils’ lockers. The episode ended when the school’s principal intervened and made them leave the premises. The originator of the leaflets was an organisation called National Youth and the leaflets contained, inter alia, the following statements:", "“Homosexual Propaganda ( Homosexpropaganda )", "In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances ( avarter ) to embracing this deviant sexual proclivity ( böjelse ). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society ( folkkroppen ) and will willingly try to put it forward as something normal and good.", "-- Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold.", "-- Tell them that homosexual lobby organisations are also trying to play down ( avdramatisera ) paedophilia, and ask if this sexual deviation ( sexuella avart ) should be legalised.”", "9. For distributing the leaflets, the applicants were charged with agitation against a national or ethnic group ( hets mot folkgrupp ).", "10. The applicants disputed that the text in the leaflets expressed contempt for homosexuals and claimed that, in any event, they had not intended to express contempt for homosexuals as a group. They stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education dispensed in Swedish schools.", "11. On 11 July 2005 the District Court ( tingsrätten ) of Bollnäs found that the statements in the leaflets had clearly gone beyond what could be considered an objective discussion of homosexuals as a group and that the applicants’ intention had been to express contempt for homosexuals. It therefore convicted the applicants of agitation against a national or ethnic group, and sentenced the first and second applicants to two months’ imprisonment, the third applicant to a suspended sentence ( villkorlig dom ) combined with a fine, and the fourth applicant to probation ( skyddstillsyn ) combined with 40 hours of community service.", "12. The applicants as well as the prosecutor appealed against the judgment to the Court of Appeal ( hovrätten ) for Southern Norrland. The applicants requested the court to reject the charges, to consider the criminal act minor, or at least to reduce the punishments. The prosecutor appealed as regards the first three applicants, requesting the court to consider the criminal act to be aggravated or at least to increase the punishments.", "13. On 14 December 2005 the Court of Appeal, referring to the Supreme Court’s judgment of 29 November 2005 in the case NJA 2005 p. 805 (see below under “Relevant domestic law and practice”), rejected the charges against the applicants on the ground that a conviction would amount to a violation of their right to freedom of expression as guaranteed by the Convention.", "14. The Office of the Prosecutor-General ( Riksåklagaren ) appealed against the judgment to the Supreme Court ( Högsta domstolen ) and requested it to convict the applicants of agitation against a national or ethnic group, arguing that it would not amount to a violation of Article 10 of the Convention in the circumstances of the present case. The applicants disputed the appeal.", "15. On 6 July 2006 the Supreme Court convicted the applicants of agitation against a national or ethnic group. The majority of judges (three out of five) first considered decisive for the outcome of the case whether the interference with the applicants’ freedom to distribute the leaflets could be considered necessary in a democratic society and whether the interference with their freedom of expression could be deemed proportionate to the aim of protecting the group of homosexuals from the violation that the content of the leaflets constituted. The majority then held:", "“In the light of the case-law of the European Court of Human Rights regarding Article 10, in the interpretation of the expression “contempt” in the provision regarding incitement against a group, a comprehensive assessment of the circumstances of the case should be made, where, in particular, the following should be considered. The handing out of the leaflets took place at a school. The accused did not have free access to the premises, which can be considered a relatively sheltered environment as regards the political actions of outsiders. The placement of the leaflets in and on the pupils’ lockers meant that the young people received them without having the possibility to decide whether they wanted to accept them or not. The purpose of the handing out of the leaflets was indeed to initiate a debate between pupils and teachers on a question of public interest, namely the objectivity of the education in Swedish schools, and to supply the pupils with arguments. However, these were formulated in a way that was offensive and disparaging for homosexuals as a group and in violation of the duty under Article 10 to avoid as far as possible statements that are unwarrantably offensive to others thus constituting an assault on their rights, and without contributing to any form of public debate which could help to further mutual understanding. The purpose of the relevant sections in the leaflets could have been achieved without statements that were offensive to homosexuals as a group. Thus, the situation was in part different from that in NJA 2005 p. 805, where a pastor made his statements before his congregation in a sermon based on certain biblical quotations. The above-mentioned reasons taken together lead to the conclusion that Chapter 16, Article 8 of the Penal Code, interpreted in conformity with the Convention, permits a judgment of conviction, given the present circumstances of this case.”", "16. The minority (two judges) found that convicting the applicants would not be proportionate to the aims pursued and would therefore be in violation of Article 10 of the Convention. Hence, the minority wanted to acquit the applicants but gave separate reasons for this conclusion, at least in part. One of them was of the view that the prosecution was not formulated in such a way that the Supreme Court could take into consideration that the leaflets had been distributed at a school and addressed to the pupils, while the other found it natural that the leaflets had been aimed at pupils and agreed with the majority that an overall assessment of the circumstances had to be made.", "17. The first three applicants were given suspended sentences combined with fines ranging from SEK 1,800 (approximately 200 euros (EUR)) to SEK 19,000 (approximately EUR 2,000) and the fourth applicant was sentenced to probation." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "18. Chapter 16, Article 8 of the Penal Code ( Brottsbalken, SFS 1962:700) provides that a person who, in a disseminated statement or communication, threatens or expresses contempt for a national, ethnic or other such group of persons with allusion to race, colour, national or ethnic origin, religious beliefs or sexual orientation, should be convicted of agitation against a national or ethnic group. The offence carries a penalty of up to two years’ imprisonment. If the offence is considered minor the penalty is a fine, and if it is considered to be aggravated the penalty is imprisonment for no less than six months and no more than four years.", "19. Agitation against homosexuals as a group was made a criminal offence by an amendment of the law that came into effect on 1 January 2003. According to the preparatory work on that amendment, as reproduced in Government Bill 2001/02:59 (pp. 32-33), homosexuals constitute an exposed group which is often subjected to criminal acts because of their sexual orientation, and national socialist and other racist groups agitate against homosexuals and homosexuality as part of their propaganda. The preparatory work also stated that there were good reasons to assume that the homophobic attitude that had caused certain offenders to attack individuals on account of their sexual orientation derived from the hate, threat and inflammatory propaganda against homosexuals as a group that was spread by the majority of Nazi and other right-wing extremist groups in the country.", "20. The Supreme Court, in its judgment of 29 November 2005 (case NJA 2005 p. 805) concerning statements made by a pastor during a sermon which were deemed to have expressed contempt for homosexuals as a group within the meaning of Chapter 16, Article 8 of the Penal Code, considered that the legislation was in accordance with the Convention. However, the Supreme Court found that, the word “contempt” in the provision regarding incitement against a group had to be interpreted more restrictively than the preparatory work appeared to indicate if an application of the provisions that was in line with the Convention was to be achieved. The Supreme Court then found that an application of the provision that was in line with the Convention would not permit a judgment convicting the defendant, given the circumstances of the case, and rejected the charges.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "21. The applicants complained that the judgment of the Supreme Court constituted a violation of their freedom of expression as protected by Article 10 of the Convention, which reads, in its relevant parts, as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ...”", "A. Admissibility", "22. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The submissions of the parties", "(a) The applicants", "23. The applicants maintained that their conviction constituted an unjustified interference with their right to freedom of expression under Article 10 § 1 of the Convention.", "24. They also argued, albeit in conjunction with their complaint under Article 7, that the law on agitation against a national or ethnic group was so unclear that it was not possible for them to ascertain whether or not their act was criminal.", "25. Further, in the applicants’ view, the text in the leaflets was not disparaging or insulting to homosexuals and hence could not justify a restriction of their right to freedom of expression pursuant to Article 10 § 2.", "26. The applicants contended that the wording in the leaflets was not hateful and did not encourage anyone to commit hateful acts. In their view, the leaflets rather encouraged the pupils to discuss certain matters with their teachers and provided them with arguments to use in these discussions.", "27. They further submitted that freedom of speech should be limited only in its content and not as regards how and where it was exercised, pointing out that they were found guilty for agitation against a national or ethnic group and not for trespassing or littering.", "28. In this connection they did not consider Swedish schools to be relatively sheltered from the political actions of outsiders. On the contrary, they alleged that Swedish schools had a tradition of letting political youth parties spread their messages, especially during election years.", "29. The applicants further stated that the pupils at the school in question were between the ages of 16 and 19 and hence of an age to understand the content of the leaflets.", "30. Lastly, they emphasised that their case should be compared to the Swedish case NJA 2005 p. 805, in which a pastor who had offended homosexuals in a sermon was acquitted by the Supreme Court of agitation against a national or ethnic group with reference to Articles 9 and 10 of the Convention.", "(b) The Government", "31. The Government agreed that Article 10 of the Convention was applicable to the present case and that the criminal conviction of the applicants constituted an interference with their right to freedom of expression as prescribed under the second section of that Article. However, the Government submitted that the criminal conviction and the sentence imposed were proportionate to the legitimate aims pursued, and thus necessary in a democratic society.", "32. The Government stressed that the applicants were convicted of the crime of agitation against a national or ethnic group, in accordance with Chapter 16 Section 8 of the Penal Code, and that all five justices of the Supreme Court reached the conclusion that this penalty was prescribed by law within the meaning of Article 10 § 2 of the Convention.", "33. The Government also contended that the interference with the applicants’ right to freedom of expression served legitimate aims within the meaning of Article 10 § 2, with particular emphasis on “the protection of the reputation or rights of others”, that is, homosexuals as a group.", "34. In the Government’s opinion several factors in the present case called for the conclusion that the domestic courts enjoyed a particularly wide margin of appreciation when examining the issue of whether the applicants’ conviction was proportionate to the legitimate aims pursued. They also argued that the same factors should be taken into account when examining whether the interference was necessary in a democratic society.", "35. In this regard, the Government first pointed out that the circumstances of the present case differed from those prevailing in several of the cases where the Court had ruled on the proportionality of measures interfering with the right to freedom of expression under Article 10. Many of those cases had dealt with the conviction of journalists and editors who had written or published “defamatory” statements in newspaper articles. The Government thus submitted that the Court’s abundant case-law insisting on the essential role of a free press and of the press as a “public watchdog” was not of immediate relevance to the present case.", "36. Secondly, the Government argued that it followed from the Court’s case-law that the limits of acceptable criticism were wider as regards, for example, governments, politicians or similar actors in the public domain than for private individuals. In the Government’s view, there was no reason why a group of individuals targeted by certain statements owing to a common denominator which distinguished them from other individuals – for example regarding sexual orientation or religion – should be required to display a greater degree of tolerance than a single individual in the equivalent situation.", "37. Thirdly, the Government maintained that a certain distinction should be made between the present case and cases dealing with the area of political speech and statements made in the course of a political debate, where freedom of expression was of the utmost importance and there was little scope for restrictions. The reason for this was that the leaflets were distributed in a school, that is, an environment relatively sheltered from the political actions of outsiders.", "38. Fourthly, the Government stressed that the Court had emphasised that balancing individual interests protected under the Convention that might well be contradictory was a difficult matter, and that Contracting States must have a broad margin of appreciation in this regard.", "39. The Government also argued that the outcome of the domestic proceedings – where the applicants were convicted by the District Court, acquitted by the Court of Appeal and convicted again by three out of five justices of the Supreme Court with reference to, inter alia, Article 10 § 2 of the Convention – clearly showed that the task of balancing the different interests involved and interpreting Swedish criminal legislation in the light of the Convention and the Court’s case-law had proved particularly difficult and delicate in the present case. They contended that in these circumstances the national authorities, by reason of their direct and continuous contact with the vital forces of their countries, were in a better position than international judges to give an opinion on the exact content of the concept “the protection of the reputation or rights of others” and to assess whether a particular measure would constitute an unjustified interference with the right to freedom of expression under Article 10 § 2.", "40. The Government further emphasised that the domestic courts had made a careful and thorough investigation of the requirements of the Convention and the Court’s case-law and had carried out a proportionality test in full conformity with the standards set by the Convention and the principles embodied in Article 10.", "(c) The third-party intervener", "41. INTERIGHTS (the International Centre for the Legal Protection of Human Rights) and the International Commission of Jurists, referring to the Court’s case-law, inter alia, submitted the following.", "42. Despite the prevalence of homophobic hate speech, there has been a failure to adopt particularised standards to address the problem, at both the European and the international political level. While the Court has well ‑ developed case-law with respect to permissible restrictions on freedom of expression, it has not had the opportunity to develop a comprehensive approach to hate speech directed against a person or class of persons because of their sexual orientation. The Court has, however, repeatedly held that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” or sex. The Court has also found incompatible with the Convention laws concerning same-sex conduct, the age of consent, military service, adoption, child custody and inheritance that discriminate on the basis of sexual orientation.", "43. When the Court comes to the “proportionality” analysis under Article 10 § 2 of the Convention, the means of communication is a relevant factor, since the impact of speech is proportional to the size of the audience it is likely to reach. It follows that when the impugned speech reaches a wider audience more caution is demanded in using that means of communication. However, as the Court has noted, where children and adolescents are concerned certain restrictive measures may be necessary to prevent pernicious effects on the morals of that group.", "44. The present case provides an opportunity for the Court to consolidate an approach to hate speech directed against a person or class of persons because of their sexual orientation that is elaborated in such a way so as to ensure that they are protected from the harmful effects of such expression. A clear analogy can be drawn between racism and xenophobia – which have been the subject matter of much of the Court’s jurisprudence – and sexual orientation.", "45. Sexual orientation should be treated in the same way as categories such as race, ethnicity and religion which are commonly covered by hate-speech and hate-crime laws, because sexual orientation is a characteristic that is fundamental to a person’s sense of self. It is, moreover, used as a marker of group identity.", "46. When a particular group is singled out for victimisation and discrimination, hate-speech laws should protect those characteristics that are essential to a person’s identity and that are used as evidence of belonging to a particular group. Restrictions on freedom of expression must therefore be permissible in instances where the aim of the speech is to degrade, insult or incite hatred against persons or a class of person on account of their sexual orientation, so long as such restrictions are in accordance with the Court’s well-established principles.", "2. The Court’s assessment", "47. The Court finds, and this is common ground between the parties, that the applicants’ conviction amounted to an interference with their freedom of expression as guaranteed by Article 10 § 1 of the Convention.", "48. Such an interference will infringe the Convention if it does not meet the requirements of Article 10 § 2. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims.", "(a) Lawfulness and legitimate aim", "49. The Court observes that the applicants were convicted of agitation against a national or ethnic group in accordance with Chapter 16, Article 8 of the Swedish Penal Code (see paragraph 18 above), which at the time of the alleged crime included statements that threatened or expressed contempt for a group of people with reference to their sexual orientation. The Court hence considers that the impugned interference was sufficiently clear and foreseeable and thus “prescribed by law” within the meaning of the Convention. The Court further considers that the interference served a legitimate aim, namely “the protection of the reputation and rights of others”, within the meaning of Article 10 § 2 of the Convention.", "(b) Necessity of the interference", "50. It remains for the Court to consider whether the interference was “necessary in a democratic society”.", "51. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. In this respect, the Contracting States enjoy a margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 68, ECHR 2004 ‑ XI).", "52. In reviewing under Article 10 the decisions taken by the national authorities pursuant to their margin of appreciation, the Court must determine, in the light of the case as a whole, including the content of the comments held against the applicants and the context in which they made them, whether the interference at issue was “proportionate” to the legitimate aim pursued and whether the reasons adduced by them to justify the interference are “relevant and sufficient” (see, among other authorities, Pedersen and Baadsgaard, cited above, §§ 69 and 70, and Kobenter and Standard Verlags GmbH v. Austria, no. 60899/00, § 29, 2 November 2006).", "53. The Court further reiterates that freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Pedersen and Baadsgaard, cited above, § 71).", "54. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools. The Court agrees with the Supreme Court that even if this is an acceptable purpose, regard must be paid to the wording of the leaflets. The Court observes that, according to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society”. The leaflets also alleged that homosexuality was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.", "55. Moreover, the Court reiterates that inciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner (see Féret v. Belgium, no. 15615/07, § 73, 16 July 2009). In this regard, the Court stresses that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour” (see, inter alia, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999 ‑ VI).", "56. The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 52, Series A no. 24). Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.", "57. In considering the approach of the domestic courts when deciding whether a “pressing social need” existed, and the reasons the authorities adduced to justify the interference, the Court observes the following. The Supreme Court acknowledged the applicants’ right to express their ideas while at the same time stressing that along with freedoms and rights people also have obligations; one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights. The Supreme Court thereafter found that the statements in the leaflets had been unnecessarily offensive. It also emphasised that the applicants had left the leaflets in or on the pupils’ lockers, thereby imposing them on the pupils. Having balanced the relevant considerations, the Supreme Court found no reason not to apply the relevant Article of the Penal Code.", "58. Finally, an important factor to be taken into account when assessing the proportionality of an interference with freedom of expression is the nature and severity of the penalties imposed (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I; and Skaÿka v. Poland, no. 43425/98, §§ 41 ‑ 42, 27 May 2003). The Court notes that the applicants were not sentenced to imprisonment, although the crime of which they were convicted carries a penalty of up to two years’ imprisonment. Instead, three of them were given suspended sentences combined with fines ranging from approximately EUR 200 to EUR 2,000, and the fourth applicant was sentenced to probation. The Court does not find these penalties excessive in the circumstances.", "59. Having regard to the foregoing, the Court considers that the conviction of the applicants and the sentences imposed on them were not disproportionate to the legitimate aim pursued and that the reasons given by the Supreme Court in justification of those measures were relevant and sufficient. The interference with the applicants’ exercise of their right to freedom of expression could therefore reasonably be regarded by the national authorities as necessary in a democratic society for the protection of the reputation and rights of others.", "60. The foregoing considerations are sufficient to enable the Court to conclude that the application does not reveal a violation of Article 10 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION", "61. The applicants complained that they were convicted of a crime not prescribed by law. They relied on Article 7 of the Convention, which reads, in so far as relevant, as follows:", "“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ... “", "62. Having regard to the finding under Article 10 that the measure complained of was “prescribed by law” within the meaning of the Convention (see paragraph 49 above), the Court finds that this part of the application should be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 a) and 4 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1969 and lives in Budapest.", "6. On 9 May 2007 the Hungarian Socialist Party (MSZP) held a demonstration in Budapest to protest against racism and hatred (hereinafter: MSZP demonstration). Simultaneously, members of Jobbik, a legally registered right-wing political party assembled in an adjacent area to express their disagreement.", "The applicant, silently holding a so-called Árpád -striped flag in the company of some other people, was observed by police as he stood nearby, at the steps leading to the Danube embankment (the location where in 1944/45, during the Arrow Cross regime, Jews were exterminated in large numbers). His position was close to the MSZP event and a few metres away from the lawn of the square where the Jobbik demonstration was being held.", "According to the testimonies which the police officers subsequently gave in court, they had been instructed not to tolerate the Árpád -striped flag if it was displayed closer than 100 metres to the MSZP demonstration. The applicant and other witnesses later stated in court that the holders of the Árpád -striped flag were called “fascists” and “arrow-crossers” by the bystanders. The police supervising the scene called on the applicant either to remove the banner or leave. The applicant refused to do so, pointing out that this flag was a historical symbol and that no law forbade its display. Subsequently he was committed to the Budapest Gyorskocsi Police Holding Facility, where he was held in custody and under interrogation for six hours. After he had been released, the Budapest 5th District Police Department fined him 50,000 Hungarian forints (approximately 200 euros) for the regulatory offence of disobeying police instructions. The applicant’s complaint to the Pest Central District Court was to no avail.", "7. On appeal, the court held hearings on 7 December 2007 and 21 February 2008 and upheld the applicant’s conviction. The court was satisfied that his conduct had been of a provocative nature, likely to result in unruliness in the context of the ongoing Socialist demonstration, and that his right to free expression could not be considered as reaching so far as to cause prejudice to public order. Despite the opinion of a heraldic expert, submitted by the applicant and stating that the flag in question was a historical one, the court considered its display offensive in the circumstances, because it had been placed higher than the national flag representing the Republic of Hungary. Therefore, the applicant’s behaviour was considered to have been provocative." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL TEXTS", "8. Act no. XX of 1949 on the Constitution (as in force at the material time) provides:", "Article 61", "“(1) In the Republic of Hungary everyone has the right to freedom of expression and speech, and to access and distribute information of public interest.”", "Article 62", "“(1) The Republic of Hungary recognises the right to peaceful assembly and ensures the free exercise thereof.”", "9. Act no. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides:", "Section 1", "“The right of assembly is a fundamental freedom guaranteed for everyone. The Republic of Hungary recognises this right and ensures its undisturbed exercise.”", "Section 2", "“(1) In the framework of the exercise of the right of assembly, peaceful gatherings, marches and demonstrations (henceforth jointly: assemblies) may be held where the participants may freely express their opinion. ...”", "Section 11", "“(1) The order of the assembly shall be secured by the organiser.", "(2) The police and other competent bodies shall, upon the organiser’s request, contribute to the maintenance of the order of the assembly and arrange for the removal of persons disturbing the assembly.”", "Section 14", "“(1) Where the exercise of the right of assembly violates section 2(3) or the participants appear bearing arms or carrying weapons or in an armed manner, or hold an assembly subject to prior notification despite a prohibiting decision, the assembly shall be dispersed by the police.", "(2) The dispersal of the assembly shall be preceded by a warning.”", "10. Act no. LXIX of 1999 on Administrative Offences provides:", "Section 142 – Disturbance", "“(1) Anyone who", "a) fights or invites another person to fight,", "b) in case of disturbance or disorderly conduct manifests disobedience to a measure imposed by the acting official person,", "shall be punishable with imprisonment or a fine up to HUF 150,000.", "(2) Anyone who appears at a public assembly", "a) possessing firearms or ammunition or any tool suitable for killing or causing bodily injury,", "b) disobeying the organiser’s or the police’s security-related instructions", "shall be punishable with a fine up to HUF 50,000.", "(3) The perpetrator of the administrative offence specified in subsections (1)-(2) may also be subjected to a ban.", "(4) Proceedings for the administrative offence specified in subsection (1) fall within the competence of the court, whereas proceedings for the administrative offence specified in subsection (2) fall within the competence of the police.", "(5) For the purposes of this Act, public assembly means: an assembly falling within the ambit of the Act on the Right to Freedom of Assembly and accessible for anyone under identical conditions.”", "11. Section 143 of Act no. CV of 2004 on Defence and the Hungarian Defence Force (as in force at the material time) lists the Árpád -striped flag as one of the historical Hungarian banners.", "12. Government Decree no. 218/1999. (ХП.28.) on Certain Administrative Offences provides as follows:", "Section 40/A – Disobeying a lawful measure", "“(1) A fine of up to HUF 50,000 may be imposed on a person who disobeys the lawful measures of a professional member of a law enforcement body.”", "13. Decision no. 75/2008. (V.29.) AB of the Constitutional Court contains the following passages:", "“1. The Constitutional Court establishes that the right of assembly recognised in Article 62(1) of the Constitution also covers the holding of events organised in advance including peaceful events where the assembly can only be held shortly after the causing event. In addition, the right of assembly covers assemblies held without prior organisation.", "2. The Constitutional Court holds that it is a constitutional requirement following from Article 62(1) of the Constitution that in the application of section 6 of Act no. III of !989, the obligation of notification pertains to organised events to be held on public ground. It is unconstitutional to prohibit merely on the basis of late notification the holding of such peaceful assemblies that cannot be notified three days prior to the date of the planned assembly, because of the nature of the causing event.”", "14. Decision no. 55/2001. (XI. 29.) AB of the Constitutional Court contains the following passages:", "“... In so far as the necessity of restricting the right of assembly is concerned, an independent examination should be made on the restriction realised in the form of the obligation to give notification in advance of assemblies planned to be held on public places of any kind, and on the restriction realised in the form of the right of the authorities to prohibit in certain cases the holding of the assembly.", "In the opinion of the Constitutional Court, the necessity of applying the obligation of notification to assemblies to be held on public grounds is justified by the fact that, in line with the detailed definition in section 15(a) of Act no. III of 1989, public ground is an area, road, street or square with unlimited access for everyone. Here, unlimited access for everyone means that both the participants in the assembly and everyone else who does not participate therein should have equal access to the public ground. The possibility to use the public ground is a precondition not only for the enforcement of the freedom of assembly but for that of another fundamental right as well: the right of free movement guaranteed in Article 58 of the Constitution.”", "15. The Report of the European Commission against Racism and Intolerance on Hungary (fourth monitoring cycle), adopted on 20 June 2008, contains the following passages:", "“61. Since [the Report of the third monitoring cycle], and apparently building on, at least in part, a series of highly charged anti-government demonstrations at the end of 2006, there has been a disturbing increase in racism and intolerance in public discourse in Hungary. In particular, the creation and rise of the radical right-wing Hungarian Guard (Magyar Gárda) – a group bearing close ties to a well known radical right-wing political party – is consistently cited as a cause for deep concern. Since its creation in August 2007 and the public swearing in of several hundred new members in October 2007, the Hungarian Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations; despite apparently innocuous articles of association, amongst the group’s chief messages is the defence of ethnic Hungarians against so-called “Gypsy crime”. Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with insignia and flags closely resembling the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II, and during whose spell in power tens of thousands of Jews and Roma were killed or deported.", "62. In January 2008, the Prosecutor General initiated court proceedings to ban the Hungarian Guard. [1] ”", "16. In Kivenmaa v. Finland (Communication No. 412/1990, U.N. Doc. CCPR/C/50/D/412/1990 (1994)), the United Nations Human Rights Committee held as follows:", "“9.2 The Committee finds that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant. In the circumstances of this specific case, it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration. Insofar as the State party contends that displaying a banner turns their presence into a demonstration, the Committee notes that any restrictions upon the right to assemble must fall within the limitation provisions of article 21. A requirement to pre-notify a demonstration would normally be for reasons of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Consequently, the application of Finnish legislation on demonstrations to such a gathering cannot be considered as an application of a restriction permitted by article 21 of the Covenant.", "9.3 The right for an individual to express his political opinions, including obviously his opinions on the question of human rights, forms part of the freedom of expression guaranteed by article 19 of the Covenant. In this particular case, the author of the communication exercised this right by raising a banner. It is true that article 19 authorizes the restriction by the law of freedom of expression in certain circumstances. However, in this specific case, the State party has not referred to a law allowing this freedom to be restricted or established how the restriction applied to Ms. Kivenmaa was necessary to safeguard the rights and national imperatives set forth in article 19, paragraph 2(a) and (b) of the Covenant.”", "17. In its decision no. BVerfG, 1 BvR 961/05 of 6 May 2005, the Federal Constitutional Court of Germany held that, in the light of the specific circumstances arising from the location and time of the demonstration, it was constitutionally acceptable to restrict the route of a planned extreme right-wing rally, despite its prior announcement, in order to defend the dignity of the Jewish victims of Nazi violence and tyranny. The Constitutional Court, appreciating the historical origins of the Federal Republic of Germany, upheld, in derogation from the principle of priority, the restriction of the earlier announced demonstration in favour of a commemorating assembly on the concerned location with special regard to the anniversary of the surrender in World War II.", "18. The current position of the Supreme Court of the United States is summarised in Virginia v. Black, 538 U.S. 343 (2003), in the context of cross burning (a traditional threatening activity of the Klu Klux Klan). According to this judgment, the burning of a cross is a “symbol of hate”, regardless of whether the message is a political one or also meant to intimidate. And while cross-burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. The protections afforded by the First Amendment are not absolute, and the government may regulate certain categories of expression, including the ban of a “true threat”. Intimidation, in the constitutionally proscribable sense of the word, is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The fact that cross-burning is a symbolic expression does not resolve the constitutional question. Sometimes the cross-burning is a statement of ideology, a symbol of group solidarity. The Supreme Court required effort to distinguish among these different types of cross-burnings and considered the contextual factors that were necessary to decide whether a particular cross-burning was intended to intimidate. The Supreme Court went on to state:", "“It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, «The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot’s hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law» (Virginia v. Black, 538 U.S. 343, 366-7 (2003)).", "The impact of (undeniably outrageous) speech on a funeral procession was considered in Snyder v. Phelps (131 S.Ct. 1207 (2011). Members of a church picketed within 200 to 300 feet from a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment.", "The Supreme Court held:", "“In public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment ... funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But [it] addressed matters of public import on public property, in a peaceful manner... The speech ... did not itself disrupt that funeral ... Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate” (Snyder v. Phelps, 131 S.Ct. 1207, 1219 (2011)).", "In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court upheld a municipal ban on residential picketing that had been adopted in response to the picketing by anti-abortion protestors of the home of a physician who performed abortions. Here the offensive and disturbing picketing focused on a “captive” home audience.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "19. The applicant complained that the prosecution conducted against him amounted to an unjustified interference with his right to freedom of expression. He relied on Articles 10 and 11 of the Convention.", "The Court considers that this issue falls to be examined under Article 10, read – in the specific circumstances of the case – in conjunction with Article 11 of the Convention.", "Article 10 reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ...”", "Article 11 of the Convention reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”", "20. The Government contested the applicant’s argument.", "A. Admissibility", "21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Arguments of the parties", "a. The Government", "22. The Government submitted that under Article 11 of the Convention the right of assembly was not an absolute right and therefore could be subjected to restrictions. In Hungary, the possibility of interfering with that right was laid down in an Act of Parliament. The holding of certain assemblies and meetings on public areas must be notified three days ahead. Under section 11(2) of the Assembly Act, the police were empowered to remove from the venue those who disturbed the assembly. In the course of securing an assembly, a police officer might, upon the well-founded suspicion of an administrative or criminal offence, apprehend the perpetrator; under section 142(2) b) of Act no. LXIX of 1999 on Administrative Offences, disobedience was punishable with a fine. Thus, the applicant’s right to freedom of assembly had been restricted in compliance with the conditions prescribed by law.", "23. The restriction had pursued a legitimate aim and the measure imposed by the police on the applicant in order to protect the demonstrators peacefully exercising their right of assembly had served the interest of public safety and the protection of the rights and freedoms of others. The police measure had been applied in order to prevent the occurrence of hostile or aggressive incidents between the participants in the two, opposing assemblies – thus, in order to ensure public peace. It could be expected that one group might intend to disturb the other assembly, and therefore the endeavour of the police to prevent any clashes between the participants in the two assemblies had been well-founded. The assembly generating the instant case had not been notified by the applicant or anyone else; indeed, its participants had appeared at a distance from another venue notified to the police but close to the venue of the assembly of persons holding opposite views.", "24. The fact that several persons had appeared at a location higher in position than the venue of the other, properly notified assembly, holding in their hands a symbol obviously irritating for the participants in that assembly, had reasonably led the police officers in charge to conclude that persons holding opposing political views had been going to disturb that assembly. In fact, the police had acted to protect a lawful demonstration whose participants should have been able to hold the demonstration without having to fear that they would be subjected to physical violence by their opponents. It was the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, and they had a wide discretion in the choice of the means to be used. In any case, the applicant could have expressed his counter-opinion at the original, duly notified assembly.", "25. Lastly, the sanctions in question had not been imposed on account of the use of the banner but because of the applicant’s refusal to comply with the police instructions related to the removal of the banner.", "b. The applicant", "26. The applicant stressed at the outset that the Constitutional Court had prohibited the banning of peaceful assemblies that were notified with delay, or were unannounced but not organised in advance. He submitted that there had been no separate event or assembly on the day in question. He had simply been present with some others at the top of the steps leading to the Danube embankment, a location close to the notified assembly of Jobbik, rather than that of the Socialist Party. The nearby presence of the applicant and his associates should not qualify as a separate assembly, or if it had been considered as such, it had not had to be announced.", "27. Neither the appearance of the applicant on the scene nor the use of the flag had been harmful or provocative; therefore there had been no legal ground for the police to intervene. Their measure – based on the perceived occurrence of an administrative offence – had not been legitimate since the use of the Árpád -stгiped flag was not prohibited, it not being a totalitarian or banned symbol under Hungarian law. Moreover, it could not be established that there had been a breach of public order merely because there had been another assembly going on with participants holding opposite political views. There was no indication of any potential or actual hostility or aggression either; in any case, such an incident had been precluded by the locations of the two events. By using the impugned flag the applicant had intended to express his political opinion and the fact that he belonged to the nation, historically considered.", "2. The Court’s assessment", "28. The Court notes that in the instant case the domestic authorities had regard to various competing Convention rights. In cases such as the present one, which require the right to freedom of assembly to be balanced against the right to freedom of expression and, allegedly, against the right of others to freedom of assembly, the Court considers that the outcome of its scrutiny should not, in theory, vary according to whether the case has been lodged by a “demonstrator” or a “counter-demonstrator”. Accordingly, the margin of appreciation afforded to the national authorities should in principle be the same in both cases. Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts as long as an overall, optimal balance between the competing rights has been achieved (see, mutatis mutandis, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 106-107, 7 February 2012). The Court’s task is therefore to examine whether those authorities struck a fair balance between the interests of the protagonists. In order to do so, it is necessary to consider not only the general principles applicable to freedom of expression but also those applicable to freedom of assembly – which is of particular relevance for the determination of that balance.", "a. Whether there has been an interference", "29. The Court notes that this issue has not been in dispute between the parties. It therefore concludes that there has been an interference with the applicant’s right to freedom of expression.", "b. “Prescribed by law”", "30. The Court notes the Government’s submission according to which section 11(2) of the Assembly Act (see paragraph 9 above) authorised the police to remove from the venue those who disturbed the assembly. It is satisfied that the exercise of this power in the circumstances met the requirements of lawfulness and concludes that the interference was “prescribed by law”.", "c. Legitimate aim", "31. The Court observes that the applicant was detained and fined for disobedience to a lawful order, against the background of the authorities’ perception that his conduct was likely to disrupt a demonstration. The interference thus pursued the legitimate aims “prevention of disorder” and “the protection of the rights and freedoms of others”.", "d. Necessary in a democratic society", "i. General principles", "32. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003–V; and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001–VIII).", "33. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999–I). In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004–VI). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 (see, among many other authorities, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997 ‑ VII).", "34. Freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb; such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society” (see, e.g., Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204).", "35. Although freedom of expression may be subject to exceptions, they “must be narrowly interpreted” and “the necessity for any restrictions must be convincingly established” (see, e.g., Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). Furthermore, the Court stresses that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on the debate of questions of public interest (see, e.g., Feldek v. Slovakia, no. 29032/95, § 74, ECHR 2001–VIII; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999–IV).", "36. For the Court, the display of a symbol associated with a political movement or entity, like that of a flag, is capable of expressing identification with ideas or representing them and falls within the ambit of expression protected by Article 10 of the Convention. When the right to freedom of expression is exercised in the context of political speech through the use of symbols, utmost care must be observed in applying any restrictions, especially if the case involves symbols which have multiple meanings. In this connection the Court emphasises that it is only by a careful examination of the context (see Öllinger v. Austria, no. 76900/01, § 47, ECHR 2006–IX), that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 and that which forfeits its right to tolerance in a democratic society (see Vajnai v. Hungary, no. 33629/06, § 53, ECHR–2008).", "37. Furthermore, freedom of assembly as enshrined in Article 11 of the Convention protects a demonstration that may annoy or cause offence to persons opposed to the ideas or claims that it is seeking to promote (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 86, ECHR 2001–IX). The guarantees of Article 11 of the Convention apply to all assemblies except those where the organisers and participants have violent intentions or otherwise deny the foundations of a “democratic society” (see G. v. Germany, no. 13079/87, Commission decision of 6 March 1989, Decisions and Reports (DR) 60, p. 256; Christians against Racism and Fascism v. the United Kingdom, Commission decision of 16 July 1980, DR 21, p. 138). Any measures interfering with freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles – however shocking and unacceptable certain views or words used may appear to the authorities – do a disservice to democracy and often even endanger it (see Sergey Kuznetsov v. Russia, no. 10877/04, § 45, 23 October 2008; Alekseyev v. Russia, nos. 4916/07, 25924/08 and 14599/09, § 80, 21 October 2010).", "38. If every probability of tension and heated exchange between opposing groups during a demonstration were to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views on any question which offends the sensitivity of the majority opinion (see Stankov, cited above, § 107). The Court would add that a demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate.", "39. While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used (see, mutatis mutandis, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Rees v. the United Kingdom, 17 October 1986, §§ 35-37, Series A no. 106). In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved (see Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, §§ 32-34, Series A no. 139).", "40. However, the mere existence of a risk is insufficient for banning the event: in making their assessment the authorities must produce concrete estimates of the potential scale of disturbance in order to evaluate the resources necessary for neutralising the threat of violent clashes (see Barankevich v. Russia, no. 10519/03, § 33, 26 July 2007; Alekseyev, cited above, § 75).", "41. The protection of opinions and the freedom to express them is one of the objectives of freedom of assembly and association enshrined in Article 11 (see Stankov, cited above, § 85). The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places (see Ezelin v. France, 26 April 1991, § 52, Series A no. 202).", "ii. Application of those principles to the present case", "42. The Court notes at the outset that the present case is concerned with competing fundamental rights. The applicant’s right to freedom of expression and his claim to freedom of peaceful assembly have to be balanced against the MSZP demonstrators’ right to protection against disruption of their assembly. For the Court, in the protection against such a disruption, a wide discretion is granted to the national authorities, not only because the two competing rights do, in principle, deserve equal protection that satisfies the obligation of neutrality of the State when opposing views clash, but also because those authorities are best positioned to evaluate the security risks and those of disturbance as well as the appropriate measures dictated by the risk assumption.", "43. However, the Court considers that such discretion applies where the existence of a serious threat of a violent counter-demonstration is convincingly demonstrated; counter-demonstrators have the right to express their disagreement with the demonstrators. Therefore, in the application of such measures, the State has to fulfil its positive obligations to protect the right of assembly of both demonstrating groups, and should find the least restrictive means that would, in principle, enable both demonstrations to take place.", "44. As previously established, the interference pursued the legitimate aims of maintaining public order and protecting the rights of others (see paragraph 31 above). These two concerns are intimately related as long as the disturbance is affecting the right to hold the demonstration. In the exercise of the State’s margin of appreciation, past violence at similar events and the impact of a counter-demonstration on the targeted demonstration are relevant considerations for the authorities, in so far as the danger of violent confrontation between the two groups – a general problem of public order – is concerned (see Öllinger, cited above, § 47). Experience with past disorders is less relevant where the situation, as in the present case, allows the authorities to take preventive measures, such as police presence keeping the two assemblies apart and offering a sufficient degree of protection, even if there was a history of violence at similar events necessitating police intervention. The Court would note in this context that it has not been argued that there was increased likelihood of violence due to the presence of the Árpád -striped banner or that the use of that symbol, perceived as provocative by the authorities, resulted in a clear threat or present danger of violence.", "45. The Court recalls that in the Öllinger case it did not consider relevant the impact which the counter-demonstration could have had on the targeted demonstrators (§ 45 of the judgment). In that case the police were of the opinion that the demonstration in question would disrupt a commemorative event as it was likely to offend the religious feelings of the public and was regarded as disrespectful towards the dead soldiers and thus provocative. Nevertheless, no pressing social need to intervene was established, although there was a risk of protests by some visitors to the cemetery which could degenerate into an open conflict between them and those participating in the assembly. In that case the ban was a preliminary one based on assumptions about future events.", "In the present application the Court notes that, while the flag perceived as provocative was actually displayed, the disturbance caused – while capable of making the demonstrators feel ill at ease – was not shown to have disrupted the demonstration materially.", "46. In the particular circumstances of the present case, the Court observes that amongst those standing at the steps leading to the Danube embankment the police took action only against those who were holding the Árpád -striped flag. There is no indication that counter-demonstrators, identifiable with the flag, would have moved in the direction of the demonstration. The police officers explained that they were acting on instructions to remove such flags in the vicinity of the MSZP demonstration. Neither the applicant’s conduct nor that of the others present was threatening or abusive, and it was only the holding of the flag that was considered provocative (see paragraph 6 above).", "47. The Court reiterates that the national authorities have a wide discretion in determining the appropriate measures to be taken for the prevention of disorder at an assembly. In the circumstances it could be expected that one group might intend to disturb the MSZP assembly. For the Court, the police’s endeavour to prevent any clashes between the participants in the two assemblies falls within the authorities’ margin of appreciation granted in the prevention of violence and in the protection of demonstrators against fear of violence. The Court considers, however, that the freedom to take part in a peaceful assembly is of such importance that it cannot be restricted in any way, so long as the person concerned does not himself commit any reprehensible act on such an occasion (see Ezelin, cited above, § 53). In the absence of additional elements, the Court, even accepting the provocative nature of the display of the flag, which remains prima facie an act of freedom of expression, cannot see the reasons for the intervention against the applicant. In this connection, the Court reiterates that, “where demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance” ( Oya Ataman v. Turkey, no. 74552/01, §§ 41-42, ECHR 2006–XIV). Given the applicant’s passive conduct, the distance from the MSZP demonstration and the absence of any demonstrated risk of insecurity or disturbance, it cannot be held that the reasons given by the national authorities to justify the interference complained of are relevant and sufficient.", "48. The Court will next examine whether the display of the flag in question constitutes a reprehensible act in the context of the applicant’s right to freedom of expression.", "49. As to the Government’s observation that the assembly generating the instant case had not been notified by the applicant or anyone else, the Court would note that, while this is a relevant consideration in the determination of the proportionality of an interference with the right of assembly, the applicant was apprehended for other reasons, namely the display of the Árpád -striped flag. For the domestic court dealing with the lawfulness of the detention and the fine, the legal basis for the apprehension of the applicant lay exclusively in his refusal to obey the order to remove the flag (see paragraph 7 above). However, in similar circumstances the Court does not take additional, ex post facto justifications offered by the Government into consideration (see Bukta and Others v. Hungary, no. 25691/04, § 34, ECHR 2007 ‑ III).", "50. Since the Government have failed to demonstrate that the applicant’s conduct was sanctioned for an activity falling under the law of assembly – and therefore that law is immaterial for the Court’s scrutiny – the Court will examine the impugned event as an exercise of freedom of expression.", "51. The Court notes the applicant’s argument that the police took action against him for the display of the flag, perceived as capable of violating the rights of others and disturbing public tranquillity; the police officers’ testimony about the instruction to remove any Árpád -striped banners disturbing the MSZP demonstration; the expert opinion (see paragraph 7 above) that the banner was a historical flag of Hungary and that it is recognised as such by law (see paragraph 11 above).", "52. For the Court, the expressive nature of the display of an object depends on the circumstances of the situation. The MSZP demonstration was intended, among other things, to protest against intolerant views held by the extreme right-wing movements which often avails itself of Árpád -striped or similar flags, as observed by the European Committee against Racism and Intolerance (see paragraph 15 above). The applicant’s decision to display that flag in the vicinity of the MSZP demonstration must be regarded as his way of expressing – by way of a symbol – his political views, namely a disagreement with the ideas of the MSZP demonstrators. The display was perceived as the expression of a political opinion by the demonstrators, who identified the applicant as being a “fascist”.", "53. The Court observes that apparently some demonstrators were troubled by the display of the banner, but they made no verbal threat. The Court has already found that, in the context of the rights of the other demonstrators and of public tranquillity, no pressing social need could be established for the police to intervene (see paragraph 47 above). It remains to be seen if the display was capable of causing public disorder in itself or required the intervention of the police on any other legal ground compatible with paragraph 2 of Article 10 of the Convention.", "54. Assuming that the banner in question has multiple meanings – that is, it can be regarded both as a historical symbol and as a symbol reminiscent of the Arrow Cross regime – it is only by a careful examination of the context in which the offending expressions appear that one can draw a meaningful distinction between shocking and offensive expression which is protected by Article 10 and that which forfeits its right to tolerance in a democratic society (see Vajnai v. Hungary, no. 33629/06, § 53, ECHR–2008). The Court has already stated in the context of the display of the red star that it shares the Government’s view that the crucial issue in that case was whether or not the applicant’s conduct represented danger for society (see Vajnai (II) v. Hungary (dec.), no. 44438/08, 18 January 2011).", "55. The Government argue that the display was irritating, while the applicant insisted that the display was lawful (see paragraphs 24 and 27 above). The Court will therefore examine if the display could have created a pressing social need to restrict the use of the symbol, for the protection of the rights of others. The Court emphasises at this juncture that in the interpretation of the meaning of an expression, for the determination of the proportionality of a specific restrictive measure, the location and the timing of the display of a symbol or of other expressions with multiple meanings play an important role.", "56. The demonstration organised by MSZP was located at a site laden with the fearful memory of the extermination of Jews and was intended to combat racism and intolerance; the choice of the venue appears to be directly related to the aims of the demonstration. However, even assuming that some demonstrators may have considered the flag as offensive, shocking, or even “fascist”, for the Court, its mere display was not capable of disturbing public order or hampering the exercise of the demonstrators’ right to assemble as it was neither intimidating, nor capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV). The Court stresses that ill feelings or even outrage, in the absence of intimidation, cannot represent a pressing social need for the purposes of Article 10 § 2, especially in view of the fact that the flag in question has never been outlawed.", "57. As stated in the context of the display of the red star, a symbol used by a totalitarian regime in Hungary, the Court accepts that the display of a symbol which was ubiquitous during the reign of such regimes may create uneasiness amongst past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto (see Vajnai, cited above, § 57).", "58. The Court does not exclude that the display of a contextually ambiguous symbol at the specific site of mass murders may in certain circumstances express identification with the perpetrators of those crimes; it is for this reason that even otherwise protected expression is not equally permissible in all places and all times. In certain countries with a traumatic historical experience comparable to that of Hungary, a ban on demonstrations – to be held on a specific day of remembrance – which are offensive to the memory of the victims of totalitarianism who perished at a given site may be considered to represent a pressing social need. The need to protect the rights to honour of the murdered and the piety rights of their relatives may necessitate an interference with the right to freedom of expression, and it might be legitimate when the particular place and time of the otherwise protected expression unequivocally changes the meaning of a certain display. Similar considerations apply if the expression, because of its timing and place, amounts to the glorification of war crimes, crimes against humanity or genocide (see Garaudy v. France (dec.), no. 65831/01, ECHR 2003–IX (extracts)). Moreover, where the applicant expresses contempt for the victims of a totalitarian regime as such, this may amount – in application of Article 17 of the Convention – to an abuse of Convention rights (see Witzsch v. Germany (dec.), no. 41448/98, 20 April 1999).", "However, the Court is satisfied that in the instant case no such abusive element can be identified.", "59. The foregoing considerations are sufficient to enable the Court to conclude that the restriction complained of did not meet a pressing social need. It cannot therefore be regarded as “necessary in a democratic society”.", "There has accordingly been a violation of Article 10 read in the light of Article 11 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLES 6 AND 14 OF THE CONVENTION", "60. The applicant also relied on Articles 6 §§ 1 and 3 and 14 of the Convention.", "61. Having regard to the above considerations, the Court finds that no separate examination is warranted under these Articles (see, mutatis mutandis, Öllinger v. Austria, no. 76900/01, §§ 52 and 53, ECHR 2006 ‑ IX).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "62. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "63. The applicant claimed 4,000 euros (EUR) in respect of non-pecuniary damage.", "64. The Government contested this claim.", "65. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him EUR 1,500 under this head.", "B. Costs and expenses", "66. The applicant also claimed EUR 1,500 for the costs and expenses incurred before the Court. This sum corresponds to 10 hours of legal work billable by his lawyer at an hourly rate of EUR 150.", "67. The Government contested this claim.", "68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, i.e. EUR 1,500.", "C. Default interest", "69. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It is the self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members.", "The second applicant, Index.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary.", "6. At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants.", "7. The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals ’ own opinion and that the authors of comments were responsible for their contents.", "8. Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary.", "9. Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites.", "10. Index ’ s “Principles of moderation” contained the following:", "“ I. Deletion of comments", "1. 1. Especially forbidden are:", "1. comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act ...", "3. vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic ... ”", "11. On 5 February 2010 MTE published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading.", "12. The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following:", "“They have talked about these two rubbish real estate websites (“ két szemét ingatlanos oldalról ” ) a thousand times already. ”", "“ Is this not that Benkő - Sándor -sort-of sly, rubbish, mug company (“ benkősándoros sunyi szemét lehúzó cég ” ) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That ’ s it.”", "13. On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”.", "14. The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites] ”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows:", "“ People like this should go and shit a hedgehog and spend all their money on their mothers ’ tombs until they drop dead. ” ( “ Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek .” )", "15. On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation.", "Once learning of the impending court action, the applicants removed the impugned comments at once.", "16. In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company.", "17. On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff ’ s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies.", "The Court found that the comments ( see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants ’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers ’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them.", "As regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism.", "18. Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff ’ s action. They also argued that users ’ comments were to be distinguished from readers ’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage.", "19. On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee.", "20. The Court of Appeal held that – as opposed to readers ’ letters whose publication was dependent on editorial decisions – the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court ’ s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants ’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants ’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘ hosting service providers ’ and ‘ intermediaries ’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation.", "21. The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites.", "22. On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants ’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2( lc ) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal ’ s view in finding that the comments were capable of harming the plaintiff ’ s good reputation and that the applicants ’ liability consisted of their having allowed their publication.", "The Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff ’ s legal representation.", "This decision was served on 2 October 2012.", "23. The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts ’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression.", "24. On 11 March 2013 the Constitutional Court declared the complaint admissible.", "25. On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, ( decision no. 19/2014. (V. 30.) AB ). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows.", "“ [43] In the case concerned by the Kúria ’ s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage.", "[44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press.", "[50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law.", "[59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes, without doubt, communication on the Internet.", "[63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate?", "[65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. ... The Constitutional Court has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional.”" ]

[ "II. RELEVANT DOMESTIC LAW", "26. Act no. IV of 1959 on the Civil Code, as in force at the material time, provides:", "Article 75", "“ (1) Personality rights shall be respected by everyone. Personality rights are protected under this Act.", "(2) The rules governing the protection of personality rights are also applicable to legal personalities, except the cases where such protection can, due to its character, they only apply to private individuals.", "(3) Personality rights will not be violated by conducts to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void. ”", "Article 78", "“ (1) The protection of personality rights shall also include the protection of reputation.", "(2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation. ”", "27. Act no. CVIII of 2001 on Electronic Commercial Services etc. provides as follows:", "Section 1", "“ (4) The scope of this Act shall not extend to communications, including contractual statements, made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service. ”", "Section 2", "“ For the purposes of this Act :", "a ) Electronic commercial service is an information - society service for selling, buying, exchanging or obtaining in any other manner of a tangible, negotiable movable property – including money, financial securities and natural forces which can be treated in the same way as a property – a service, a real estate or a right having pecuniary value (henceforth together: goods); ...", "l) Provider of intermediary services: any natural or legal person providing an information society service, who", "...", "lc ) stores information provided by a recipient of the service (hosting) ( tárhelyszolgáltatás ) ”", "III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW", "28. The relevant material found in the instruments of the Council of Europe, the United Nations and the European Union as well as in the national law of various Member States is outlined in paragraphs 44 to 58 of the judgment Delfi AS v. Estonia [GC] (no. 64569/09, ECHR 2015).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "29. The applicants complained that the rulings of the Hungarian courts establishing objective liability on the side of Internet websites for the contents of users ’ comments amounts to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "30. The Government contested that argument.", "A. Admissibility", "31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicants", "32. At the outset, the applicants drew attention to the EU framework governing intermediary liability and the relevant international standards developed by the United Nations Special Rapporteur on Freedom of Expression as well as the Council of Europe expressed notably by the Committee of Ministers.", "33. Moreover, in their view, it was immaterial which precise domestic legal provisions had served as the basis of the restriction complained of. The State interference resulted in the applicants ’ objective liability for the comments made on their websites.", "34. They disputed the rulings of the Hungarian courts according to which the comments had violated others ’ right to good reputation. Those comments had appeared in a public debate on a matter of common interest. The debate concerned the unethical conduct of a service- provider, where there should be little restriction on expressions, even disturbing ones, especially when it comes to value judgments as in the present case. In any case, the comments could not be equated with edited readers ’ letters.", "35. The applicants also contended that the lawfulness of the interference leaves a lot to be desired because the domestic legal practice was divergent in such cases.", "36. As to the Government ’ s suggestion that liability for comments could be avoided either by pre-moderation or by disabling commenting altogether, the applicants argued that both solutions would work against the very essence of free expression on the Internet by having an undue chilling effect.", "37. The applicants furthermore contended that imposing strict liability on online publications for all third-party contents would amount to a duty imposed on websites to prevent the posting, for any period of time, of any user-generated content that might be defamatory. Such a duty would place an undue burden on many protagonists of the Internet scene and produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble – whereas those comments tend to enrich and democratise online debates.", "38. It was noteworthy that the law of the European Union and some national jurisdictions contained less restrictive rules for the protection of rights of others and to manage liability of hosting service providers. Indeed, the application of the “ notice and take down ” rule was the adequate way of enforcing the protection of reputation of others.", "39. The stance of the Hungarian authorities had resulted in disproportionate restriction on the applicants ’ freedom of expression in that they had had to face a successful civil action against them, even though they had removed the disputed contents at once after they had learnt, from the court action, that the company concerned had perceived them as injurious. The legal procedure, along with the fees payable, must be seen as having a chilling effect.", "40. To conclude, the applicants maintained that the simple application of the traditional rules of editorial responsibility, namely strict liability, was not the answer to the new challenges of the digital era. Imposing strict liability on online publications for all third-party content would have serious adverse repercussions for the freedom of expression and the democratic openness in the age of Internet.", "( b ) The Government", "41. The Government conceded that there had been an interference with the applicants ’ right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had acted within their margin of appreciation essentially because by displaying the comments the applicants had exceeded the limits of freedom of expression as guaranteed under the Convention.", "42. The Government noted that the courts had not availed themselves of the notion of objective liability to be borne by Internet service providers for users ’ comments. Pursuant to its Section 1(4), Act no. CVIII of 2001 on Electronic Commercial Services (see paragraph 22 above) had not been applicable in the case, since its scope did not extend to communications made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service. The applicants ’ objective liability had occurred since they had disseminated opinions privately expressed by other persons in a manner violating the law. Consequently, the general provisions of the Civil Code governing the protection of personality rights had been relied on by the courts. As they stated, an expression damaging reputation might also be committed by imparting and disseminating information obtained from other persons. The expressions published had contained unduly injurious, insulting and humiliating statements of facts which were contrary to the rules governing the expression of opinions. The publication of a fact might also amount to an opinion since the circumstances of the publication might reflect an opinion. Honour and reputation, however, did constitute an outer limit even to opinions or value judgments. Under Articles 75(1) and 78(1)- (2) of the Civil Code, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person constituted defamation.", "43. The applicants ’ own right to impart and disseminate information and ideas was in no way violated. Indeed, they had not disputed that the comments had infringed the plaintiff ’ s personality rights. As regards the publication of the ideas of others, to avoid the legal consequences of allowing the comments the applicants could have pre-moderated them or not disallowed them altogether. Those who enabled the display of unmoderated comments on their websites should foresee that unlawful expressions might also be displayed – and sanctioned under the rules of civil law.", "44. In assessing the necessity of the interference, the Government argued that the case involved a conflict between the right to freedom of expression and the protection of the honour and rights of others. The national courts had solved the conflict by weighing the relevant considerations in a manner complying with the principles laid down in Article 10 of the Convention. The comments were undoubtedly unlawful; and the sanctions applied were not disproportionate in that the courts limited themselves to establishing the breach of the law and obliging the applicants to pay only the court fees.", "2. The Court ’ s assessment", "45. The Court notes that it was not in dispute between the parties that the applicants ’ freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise.", "46. Such an interference with the applicant company ’ s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”.", "47. In the present case the parties ’ opinion differed as to whether the interference with the applicants ’ freedom of expression was “prescribed by law”. The applicants argued that under the European legislation hosting service providers had restricted liability for third-party comments. The Government referred to section 1(4) of Act no. CVIII of 2001 to the effect that private expressions, such as the impugned comments, fell outside the scope of that Act. They relied on section 75(1) and 78(1)-(2) of the Civil Code and argued that the applicants were liable for imparting and disseminating private opinions expressed by third-parties.", "48. The Court observes that the Court of Appeal concluded that the applicants ’ case did not concern electronic commercial activities, and, in any case, pursuant to its section 1(4), Act no. CVIII of 2001 was not applicable to the impugned comments (see paragraph 20 above). The Kúria, while upholding the second-instance judgment found, without further explanation, that the applicants were not intermediaries in terms of section 2( lc ) of that Act (see paragraph 22 above).", "The domestic courts, thus, chose to apply Article 78 of the Civil Code, although, apparently, for different reasons.", "49. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Kúria ’ s application of the relevant provisions of the Civil Code to the applicants ’ situation was foreseeable for the purposes of Article 10 § 2 of the Convention. As the Court has previously held, the level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 142, ECHR 2012). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV).", "50. The Court notes that the Kúria did not embark on an explanation whether and how Directive 2000/31/EC was taken into account when interpreting section 2( lc ) of Act no. CVIII of 2001 and arriving to the conclusion that the applicants were not intermediaries in terms of that provision, despite the applicants ’ suggestion that the correct application of the EU law should have exculpated them in the circumstances.", "51. Nonetheless, the Court is satisfied on the facts of this case that the provisions of the Civil Code made it foreseeable for a media publisher running a large Internet news portal for an economic purpose and for a self-regulatory body of Internet content providers, that they could, in principle, be held liable under domestic law for unlawful comments of third-parties. Thus, the Court considers that the applicants was in a position to assess the risks related to their activities and that they must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention (see mutatis mutandis, Delfi AS, cited above, §§ 125 to 129).", "52. The Government submitted that the interference pursued the legitimate aim of protecting the rights of others. The Court accepts this.", "53. It thus remains to be ascertained whether it was “necessary in a democratic society” in order to achieve the aim pursued.", "(a) General principles", "54. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court ’ s case-law and have been summarised as follows (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013; and most recently in Delfi AS, cited above, § 131 ):", "“( i ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ...", "(ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10.", "(iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...”", "55. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, § 89, 10 November 2015; Bladet Tromsø and Stensaas, cited above, § 59; and Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Delfi AS, cited above, § 132; Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I).", "56. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009; and Delfi, cited above, § 133 ). At the same time, in considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor (see Delfi, cited above, § 134; see also Jersild v. Denmark, cited above, § 31 ).", "57. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi AS, cited above, § 137; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009).", "58. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Delfi AS, cited above, § 138; Axel Springer AG, cited above, § 84; Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).", "59. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania ( dec. ), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Delfi AS, cited above, § 139; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).", "(b) Application of those principles to the present case", "( i ) Preliminary remarks and applicable criteria", "60. In order to determine the standards applicable in the instant case, the Court will consider the nature of the applicants ’ rights of expression in view of their role in the process of communication and the specific interest protected by the interference, namely – as was implied by the domestic courts – the rights of others.", "61. The Court notes that both the first applicant, as a self-regulatory body of internet service providers, and the second applicant, as a large news portal, provided forum for the exercise of expression rights, enabling the public to impart information and ideas. Thus, the Court shares the Constitutional Court ’ s view according to which the applicants ’ conduct must be assessed in the light of the principles applicable to the press (see paragraph 25 above).", "62. The Court reiterates in this regard that although not publishers of the comments in the traditional sense, Internet news portals must, in principle, assume duties and responsibilities. Because of the particular nature of the Internet, those duties and responsibilities may differ to some degree from those of a traditional publisher, notably as regards third-party contents (see Delfi AS, cited above, § 113).", "63. In particular, the Court has examined in the case of Delfi AS the duties and responsibilities under Article 10 § 2 of large Internet news portals where they provide, for economic purposes, a platform for user-generated comments and where the users of such platforms engage in clearly unlawful expressions, amounting to hate speech and incitement to violence.", "64. However, the present case is different. Although offensive and vulgar (see paragraphs 12 and 14 above), the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence. Furthermore, while the second applicant is the owner of a large media outlet which must be regarded as having economic interests, the first applicant is a non-profit self-regulatory association of Internet service providers, with no known such interests.", "65. The domestic courts found that the impugned statements violated the personality rights and reputation of the plaintiff company, a moral person. At this juncture the Court notes that the domestic authorities accepted without any further analysis or justification that the impugned statements were unlawful as being injurious to the reputation of the plaintiff company.", "66. As the Court has previously held, legal persons could not claim to be a victim of a violation of personality rights, whose holders could only be natural persons (see Sdružení Jihočeské Matky v. Czech Republic ( dec. ), no. 19101/03, 10 July 2006). There is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one ’ s dignity, for the Court, interests of commercial reputation are devoid of that moral dimension (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). Moreover, the Court reiterates that there is an interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009).", "67. However, in the present case it is not necessary to decide whether the plaintiff company could justifiably rely on its right to reputation, seen from the perspective of Article 8 of the Convention. It suffices to observe that the domestic courts found that the comments in question constituted an infringement of its personality rights. Indeed, it cannot be excluded that the impugned comments were injurious towards the natural person behind the company and that, in this sense, the decisions of the domestic courts intended to protect, in an indirect manner, that person from defamatory statements. The Court will therefore proceed under the assumption that – giving the benefit of the doubt to the domestic courts ’ stance identifying a valid reputational interest – there was to be a balancing between the applicants ’ Article 10 rights and the plaintiff ’ s Article 8 rights.", "68. The Court has already had occasion to lay down the relevant principles which must guide its assessment in the area of balancing the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. It identified a number of relevant criteria, out of which the particularly pertinent in the present case, to which the Court will revert below, are: contribution to a debate of public interest, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 93; Von Hannover v. (no. 2), cited above, §§ 108 to 1 1 3, ECHR 2012; and Axel Springer AG, cited above, §§ 90-95, 7 February 2012). At this juncture the Court would add that the outcome of such a balancing performed by the domestic courts will be acceptable in so far as those courts applied the appropriate criteria and, moreover, weighed the relative importance of each criterion with due respect paid to the particular circumstances of the case.", "69. In the case of Delfi AS, the Grand Chamber identified the following specific aspects of freedom of expression in terms of protagonists playing an intermediary role on the Internet, as being relevant for the concrete assessment of the interference in question : the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary ’ s liability, and the consequences of the domestic proceedings for the applicant company (see Delfi AS, cited above, § § 142-43).", "70. These latter criteria were established so as to assess the liability of large Internet news portals for not having removed from their websites, without delay after publication, comments that amounted to hate speech and incitement to violence. However, for the Court, they are also relevant for the assessment of the proportionality of the interference in the present case, free of the pivotal element of hate speech. It is therefore convenient to examine the balancing, if any, performed by the domestic courts and the extent to which the relevant criteria (see Von Hannover (no. 2 ), cited above, §§ 108 to 113) were applied in that process, with regard to the specific aspects dictated by the applicants ’ respective positions (see Delfi AS, cited above, §§ 142- 43).", "71. Consequently, it has to be ascertained if the domestic authorities struck an appropriate balance between the applicants ’ right under Article 10, as protagonists in providing Internet platform for, or inviting expressions from, third-parties on the one hand, and the rights of the plaintiff company not to sustain allegations infringing its rights under Article 8, on the other. In particular, in the light of the Kúria ’ s reasoning, the Court must examine whether the domestic courts ’ imposition of liability on the applicants for third-party comments was based on relevant and sufficient reasons in the particular circumstances of the case.", "The Court itself will proceed to assess the relevant criteria as laid down in its case-law to the extent that the domestic authorities failed to do so.", "( ii ) Context and content of the impugned comments", "72. As regards the context of the comments, the Court notes that the underlying article concerned the business practice of two large real estate websites, which was deemed misleading and injurious to their clients, thus there was a public interest in ensuring an informed public debate over a matter concerning many consumers and Internet users. The conduct in question had already generated numerous complaints to the consumer protection organs and prompted various procedures against the company concerned (see paragraph 16 above). The Court is therefore satisfied that the comments triggered by the article can be regarded as going to a matter of public interest.", "Moreover, against this background, the article cannot be considered to be devoid of a factual basis or provoking gratuitously offensive comments.", "73. The Court attaches importance to the fact that the second applicant is the owner of a large news portal, run on a commercial basis and obviously attracting a large number of comments. On the contrary, there is no appearance that the situation of the first applicant, the self-regulatory association of Internet content providers, was in any manner similar; indeed, the latter ’ s publication of contents of predominantly professional nature was unlikely to provoke heated discussions on the Internet. At any rate, the domestic courts appear to have paid no attention to the role, if any, which the applicants respectively played in generating the comments.", "74. As regards the contents of the comments, the domestic courts found that they had overstepped the acceptable limits of freedom of opinion and infringed the right to reputation of the plaintiff company, in that they were unreasonably offensive, injurious and degrading.", "75. For the Court, the issue in the instant case is not defamatory statements of fact but value judgments or opinions, as was admitted by the domestic courts. They were denouncements of a commercial conduct and were partly influenced by the commentators ’ personal frustration of having been tricked by the company. Indeed, the remarks can be considered as an ill-considered reaction (compare and contrast Palomo Sánchez and Others cited above, § 73). They were posted in the context of a dispute over the business policy of the plaintiff company perceived as being harmful to a number of clients.", "76. Furthermore, the expressions used in the comments were offensive, one of them being outright vulgar. As the Court has previously held, offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see Skałka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj, cited above, § 23).", "77. Without losing sight of the effects of defamation on the Internet, especially given the ease, scope and speed of the dissemination of information (see Delfi AS, cited above,§ 147), the Court also considers that regard must be had to the specificities of the style of communication on certain Internet portals. For the Court, the expressions used in the comments, albeit belonging to a low register of style, are common in communication on many Internet portals – a consideration that reduces the impact that can be attributed to those expressions.", "( iii ) Liability of the authors of the comments", "78. As regards the establishment, in the civil proceedings, of the commentators ’ identities, the Court notes that the domestic authorities did not at all address its feasibility or the lack of it. The Constitutional Court restricted its analysis to stating that the injured party was unlikely to receive any compensation without the liability of the operator of the Internet portal.", "At this juncture, the Court notes that there is no appearance that the domestic courts enquired into the conditions of commenting as such or into the system of registration enabling readers to make comments on the applicants ’ websites.", "79. The national courts were satisfied that it was the applicants that bore a certain level of liability for the comments, since they had “disseminated” defamatory statements (see paragraph 42 above), however without embarking on a proportionality analysis of the liability of the actual authors of the comments and that of the applicants. For the Court, the conduct of the applicants providing platform for third-parties to exercise their freedom of expression by posting comments is a journalistic activity of a particular nature (see Delfi AS, cited above, §§ 112-13). Even accepting the domestic courts ’ qualification of the applicants ’ conduct as “disseminating” defamatory statements, the applicant ’ s liability is difficult to reconcile with the existing case-law according to which “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” ( see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013; and Delfi AS, cited above, § 135).", "( iv ) Measures taken by the applicants and the conduct of the injured party", "80. The Court observes that although the applicants immediately removed the comments in question from their websites upon notification of the initiation of civil proceedings (see paragraphs 15 above), the Kúria found them liable on the basis of the Civil Code, since by enabling readers to make comments on those websites and in connection to the impugned article, they had assumed objective liability for any injurious or unlawful comments made by those readers. As the Budapest Court of Appeal held, the circumstances of removing the comments were not a matter relevant for the assessment of objective liability but one for the assessment of any compensation (see paragraph 20 above).", "81. The Court observes that the applicants took certain general measures to prevent defamatory comments on their portals or to remove them. Both applicants had a disclaimer in their General terms and conditions stipulating that the writers of comments – rather than the applicants – were accountable for the comments. The posting of comments injurious to the rights of third parties were prohibited. Furthermore, according to the Rules of moderation of the second applicant, “ unlawful comments ” were also prohibited. The second applicant set up a team of moderators performing partial follow-up moderation of comments posted on its portal. In addition, both applicants had a notice-and-take-down system in place, whereby anybody could indicate unlawful comments to the service provider so that they be removed. The moderators and the service providers could remove comments deemed unlawful at their discretion (see paragraphs 7-10 above).", "82. The domestic courts held that, by allowing unfiltered comments, the applicants should have expected that some of those might be in breach of the law. For the Court, this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet.", "83. The Court also observes that the injured company never requested the applicants to remove the comments but opted to seek justice directly in court – an element that did not attract any attention in the domestic evaluation of the circumstances.", "Indeed, the domestic courts imposed objective liability on the applicants for “having provided space for injurious and degrading comments” and did not perform any examination of the conduct of either the applicants or the plaintiff.", "(v) Consequences of the comments for the injured party", "84. As the Court has previously held in the context of compensation for the protraction of civil proceedings, juristic persons may be awarded compensation for non-pecuniary damage, where consideration should be given to the company ’ s reputation (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000 ‑ IV). However, the Court reiterates that there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one ’ s dignity, for the Court interests of commercial reputation are primarily of business nature and devoid of the same moral dimension which the reputation of individuals encompasses. In the instant application, the reputational interest at stake is that of a private company; it is thus a commercial one without relevance to moral character (see, mutatis mutandis, Uj, cited above, § 22).", "85. The consequences of the comments must nevertheless be put into perspective. At the time of the publication of the article and the impugned comments, there were already ongoing inquiries into the plaintiff company ’ s business conduct (see paragraph 17 above). Against this background, the Court is not convinced that the comments in question were capable of making any additional and significant impact on the attitude of the consumers concerned. However, the domestic courts do not appear to have evaluated whether the comments reached the requisite level of seriousness and whether they were made in a manner actually causing prejudice to a legal person ’ s right to professional reputation (see paragraph 57 above).", "( vi) Consequences for the applicants", "86. The applicants were obliged to pay the court fees, including the fee paid by the injured party for its legal representation (see paragraph 22 above), but no awards were made for non-pecuniary damage. However, it cannot be excluded that the court decision finding against the applicants in the present case might produce legal basis for a further legal action resulting a damage award. In any event, the Court is of the view that the decisive question when assessing the consequence for the applicants is not the absence of damages payable, but the manner in which Internet portals such as theirs can be held liable for third-party comments. Such liability may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression on the Internet. This effect could be particularly detrimental for a non-commercial website such as the first applicant (compare and contrast Delfi AS, cited above, § 161).", "87. The Constitutional Court held that the operation of Internet portals allowing comments without prior moderation was a forum of the exercise of freedom of expression (see paragraph 25 above). Indeed, the Court stressed on many occasions the essential role which the press plays in a democratic society (see De Haes and Gijsels v. Belgium, cited above, § 37) – a concept which in modern society undoubtedly encompasses the electronic media including the Internet.", "88. However, the Court cannot but observe that the Hungarian courts paid no heed to what was at stake for the applicants as protagonists of the free electronic media. They did not embark on any assessment of how the application of civil-law liability to a news portal operator will affect freedom of expression on the Internet. Indeed, when allocating liability in the case, those courts did not perform any balancing at all between this interest and that of the plaintiff. This fact alone calls into question the adequacy of the protection of the applicants ’ freedom-of-expression rights on the domestic level.", "( vii) Conclusion", "89. The Court considers that the rigid stance of the Hungarian courts reflects a notion of liability which effectively precludes the balancing between the competing rights according to the criteria laid down in the Court ’ s case law (see Von Hannover (no. 2), cited above, § 107).", "90. At this juncture, the Court reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland, cited above, § 67 ).", "91. However, in the case of Delfi AS, the Court found that if accompanied by effective procedures allowing for rapid response, the notice-and-take- down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved. The Court sees no reason to hold that such a system could not have provided a viable avenue to protect the commercial reputation of the plaintiff. It is true that, in cases where third-party user comments take the form of hate speech and direct threats to the physical integrity of individuals, the rights and interests of others and of the society as a whole might entitle Contracting States to impose liability on Internet news portals if they failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties (see Delfi AS, cited above, § 159). However, the present case did not involve such utterances.", "The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "92. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "93. The applicants made no damage claim.", "B. Costs and expenses", "94. The applicants, jointly, claimed 5,100 euros (EUR) for the costs and expenses incurred before the Court. This sum corresponds to 85 hours of legal work billable by their lawyer at an hourly rate of EUR 60.", "95. The Government contested this claim.", "96. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed.", "C. Default interest", "97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicant was born in 1983 and lives in Beaucaire (France). He is represented by Mr D. Dassa Le Deist, a lawyer.", "3. The Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs.", "4. The applicant has been the mayor of the town of Beaucaire since 2014 and president of the Rassemblement national (known as Front national (FN) until 2018) group in the Regional Council of Occitanie. At the relevant time he was the Front national candidate for the Nîmes constituency in the French parliamentary elections. F.P., then a member of the European Parliament (MEP), first deputy to the mayor of Nîmes, was one of his political opponents.", "5. On 24 October 2011 the applicant published a post about F.P. on the publicly accessible “wall” of his Facebook account, which was managed by him personally, reading as follows:", "“While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a Popular Movement] MEP [F.P.], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its home page ...”", "6. A third party, S.B., reacted on the same day to that post, adding the following comment to the wall of the applicant’s Facebook account:", "“This bigwig has turned Nîmes into Algiers, there’s not a street without a kebab shop and mosque; drug dealers and prostitutes reign supreme, no surprise he’s chosen Brussels, capital of the new world order of sharia... Cheers UMPS [amalgam of UMP and PS, Socialist Party], at least we don’t have to pay for the flights and hotel... I love this free version of Club Med... Thanks [F.] and kisses to Leila ([L.])... Finally, a blog that changes our life ...”", "7. Another reader, L.R., wrote the following three comments:", "“Shisha bars all over the town centre and veiled women ... Look what’s become of Nîmes, the so-called Roman city ... The UMP and the PS are Muslim allies.”", "“Drug trafficking run by muslims rue des lombards, it’s been going on for years ... even with CCTV in the street ... more drug dealing in plain sight on avenue general leclerc where riff-raff sell drugs all day long but police never come and in front of schools too, stones get thrown all the time at ‘white people’s’ cars route d’arles at the lights ... Nîmes is the insecurity capital of Languedoc Roussillon.”", "“[P.], councillor for economic development lol hallal economic development boulevard gambetta and (islamic) republic street.”", "8. In the morning of 25 October 2011, L.T., the partner of F.P., became aware of the comments. Feeling directly and personally insulted by comments that she described as “racist”, associating her forename, which “sounded North African”, with the policy of F.P., she immediately went to the hairdressing salon run by S.B., whom she knew personally. S.B., who was unaware of the public nature of the applicant’s Facebook account, deleted his comment just after L.T. left, as he subsequently confirmed when he was interviewed by the gendarmes.", "9. On 26 October 2011 L.T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against the applicant, S.B. and L.R. on account of the offending comments published on the applicant’s Facebook page. With her letter she attached screen shots as evidence of the offending comments.", "10. On 27 October 2011 the applicant posted a message on the “wall” of his Facebook account asking users to “be careful with the content of [their] comments”, but did not do anything about the comments already posted.", "11. L.T. was interviewed by the gendarmes on 6 December 2011. She stated that she had discovered the comments on 25 October 2011 when she was in the office of her partner, an MEP and first deputy to the Mayor of Nîmes. She explained that their relationship was public knowledge and that the racist comments on the applicant’s publicly accessible Facebook page included one associating her North African-sounding forename with that of her partner and his policies. She stated that after she had discovered the posts she had immediately gone to the hairdressing salon run by S.B. to express her indignation. According to her, S.B. had been very surprised and had clearly not been aware of the public nature of this Facebook page, but he had confirmed he was talking about her when he said “Thanks [F.] and kisses to [L.]”. She added that she had then been accompanied to the town hall by the Prefect’s wife, who was just passing by and who had seen how annoyed she was. On the way there she had logged onto Facebook again to find that S.B’s comment had already been removed. The investigation into the applicant’s Facebook account revealed, on the same day, that the comments by L.R. were still there, while those posted by S.B. had indeed disappeared.", "12. For his part, L.R. was identified as being an employee of Nîmes town council. When interviewed by the gendarmes on 23 January 2011 he explained that he worked as an assistant in the applicant’s election campaign and denied that his comments had been racist or an incitement to racial hatred. Explaining that he had never intended to direct his comments against L.T., he explained that in the meantime he had deleted the comments in which F.P. could have recognised himself or have been recognised by others.", "13. During his interview of 25 January 2012 S.B. told the gendarmes that he had been unaware that the applicant’s Facebook page was publicly accessible and had deleted his comments immediately after L.T. had come to see him at his hairdressing salon. He added that he had informed the applicant later that day of his altercation with L.T.", "14. On 28 January 2012 the applicant was also interviewed by the investigators. Recalling that he had been a candidate in Nîmes standing against F.P., L.T.’s partner, he explained that he had been unable to monitor the large number of comments published each week on the “wall” of his Facebook account. He indicated in particular that he had not written the impugned comments himself; he had not had the time to delete the comment by S.B., who had already done so; he had only become aware of L.R.’s comments when he was summoned to the gendarmerie, and he was prepared to delete them if the courts so requested; he consulted his Facebook “wall” every day, but did not often read the comments, which were too numerous given that he had more than 1,800 “friends” who could post comments 24 hours a day, and that he preferred to post content to inform his readers; L.T., whom he knew only by her partner’s surname, had not been mentioned by name and he had not been aware of her forename until she filed a complaint; L.T. had once personally taken him to task at a polling station; she should have telephoned him to ask him to delete these comments, which would have obviated the need for a criminal complaint, but her aim had clearly been to destabilise his candidature, as he was standing against her partner; instead, L.T. had gone to the hairdressing salon of S.B., whom she knew, to insult and threaten him in front of witnesses; lastly, he knew L.R. and S.B., activists in his party who did not hold any office in it. Referring to his foreign origins, he added that he had never displayed any racism or discrimination against anyone, and that he did not perceive any call to murder or violence in the disputed remarks, which he considered to be within the limits of any citizen’s freedom of expression. He emphasised that he had removed public access to his Facebook “wall” a few days before this interview, in order to limit access only to those who chose to be his friends and to avoid any further incidents that were not of his making. After the interview, the investigators were able to confirm that the applicant’s Facebook page was indeed no longer accessible to the public.", "15. The applicant, together with S.B. and L.R., were summoned to appear before Nîmes Criminal Court in connection with the publication of the comments in question on the “wall” of his Facebook account, to answer charges of incitement to hatred or violence against a group, and in particular L.T., on account of their origin or the fact of belonging or not belonging to a specific ethnicity, nation, race or religion. The summons referred to section 23, first paragraph, section 24, eighth paragraph, and section 65-3 of the Law of 29 July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982.", "16. In a judgment of 28 February 2013 the Nîmes Criminal Court found the applicant, S.B. and L.R. guilty as charged and ordered each of them to pay a fine of 4,000 euros (EUR). The applicant was convicted under section 23, first paragraph, and section 24, eighth paragraph, of the Law of 29 July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982. S.B. and the applicant were also ordered jointly to pay EUR 1,000 to L.T., as civil party, in compensation for non-pecuniary damage. However, the court did not see fit to order the sanction of electoral disqualification that had been called for by the public prosecutor.", "17. In its judgment the court began by finding that the various offending comments had specifically defined the group concerned, namely “Muslims”. To equate that group with “drug dealers and prostitutes” who “reign supreme”, “riff raff who sell drugs all day long” or those responsible for “throwing stones at white people’s cars”, was clearly likely, on account of both the meaning and scope of the comments, to arouse a strong feeling of rejection or hostility towards people who belonged, or were assumed to belong, to the Muslim community. It further took the view that L.T. could be regarded as having been provoked by the impugned comments, in view of the references to her partner and the wording “Thanks [F.] and kisses to [L.]” which had had the effect of portraying them both as being responsible for the alleged transformation of “Nîmes into Algiers” and to arouse hatred or violence against them.", "18. As regards the applicant, the court observed that it could be inferred from section 93-3 of the Law of 29 July 1982, as interpreted by the Constitutional Council in its decision of 16 September 2011, that the criminal liability of the producer of a website intended for communication to the general public, including access to messages posted by its users, would only be engaged in respect of such messages if it could be established that the producer had been aware of their content before they were posted or, if not, if he or she failed to act promptly to delete the messages at issue upon becoming aware of them. It dismissed the applicant’s arguments according to which he had not had time to read the comments and that he had not been aware of the comments by S.B. and L.R., on the grounds that: first, comments could only be posted on his wall after he had given access to his “friends” of which there were 1,829 at 25 October 2011, and that he was responsible for checking the content of the posts; second, he must have been aware that his page was likely to attract comments with a political, and thus essential polemical, content, and that he should have been all the more careful to monitor them. The court concluded that, having set up an electronic public communication service on his own initiative for the purpose of exchanging opinions, and having left the offending comments, which had remained visible as of 6 December 2011 according to the investigators, the applicant had failed to act promptly to put an end to their dissemination and was therefore guilty in his capacity as principal.", "19. The applicant and S.B. appealed. S.B. subsequently withdrew his appeal.", "20. In a judgment of 18 October 2013 the Nîmes Court of Appeal upheld the applicant’s conviction, reducing the fine to EUR 3,000. It further ordered him to pay L.T. EUR 1,000 in costs for the appeal proceedings.", "21. In its reasoning the Court of Appeal held that the Criminal Court had been correct in finding that the comments clearly defined the group of people concerned, namely Muslims, and that to associate the Muslim community with crime and insecurity in the city of Nîmes was likely to arouse a strong feeling of rejection or hostility towards that group. Noting that the legislation cited in the proceedings concerned discrimination against a person or group of persons, it found as follows:", "“... the expression ‘kisses to Leila’, referring to [L.T.], and her connection with [F.P.], deputy mayor of Nîmes, who is described in the posts as having contributed to the abandonment of the town of Nîmes to the Muslims and thus to insecurity, is such as to associate her with the transformation of the town and thus to arouse hatred or violence against her; on the basis of these elements, the two posts in question constitute incitement to hatred or violence against a person, namely [F.P.]’s partner, [L.T.], on account of a presumption, because of her forename, that she belonged to the Muslim community ... ”", "22. Referring further to the provisions of section 93-3 of the Law of 29 July 1982 and to the facts of the case, the Court of Appeal noted that there was no evidence that the applicant had been informed of the content of the comments before they were published, but that in his capacity as an elected member of the Front National and a public figure, he had “knowingly made his Facebook wall public and [had] therefore authorised his friends to post comments on it”. The court continued its reasoning as follows:", "“... by thus acting voluntarily he became responsible for the content of the comments published; his status as a political figure required him to be all the more vigilant; he cannot claim not to have been aware of the comments published on his website on 24 October, especially as he stated during the investigation that he consulted it every day; he did not, however, remove the comments, which were subsequently deleted by [S. B.] himself; alerted by the latter to the reaction of the civil party, he did not delete [L.R.’s] comment either, and the latter was still present on his website when consulted by the investigators on 6 December 2011; he cannot be regarded, as the court below rightly found, as having promptly put an end to the dissemination of the offending comments; he legitimised his position by explaining that such comments appeared to him to be compatible with freedom of expression; the fact they were left on his ‘wall’ was thus deliberate on his part; in the light of these elements, the court below was right to find the defendant guilty as charged and the judgment is upheld in respect of his conviction ...”", "23. The applicant appealed to the Court of Cassation, relying in particular on Article 10 of the Convention. In a single ground of appeal, he argued that, for the offence to be made out, the comments had to contain encouragement or incitement to discrimination, hatred or violence, and not merely give rise to a strong feeling of rejection or hostility towards a group or person; that the mere fear of a risk of racism could not deprive citizens of the freedom to express their views on the consequences of immigration in certain towns or neighbourhoods, the comments having specifically deplored the transformation of the town of Nîmes by immigrants of North African origin and of the Muslim faith; that the summons to appear before the court had been unlawful; and, lastly, that the impugned remarks had in no way been directed at L.T. personally and had been distorted by the Court of Appeal.", "24. In a judgment of 17 March 2015 the Court of Cassation dismissed his appeal, in particular with regard to Article 10 of the Convention, stating as follows:", "“... first, the offence of incitement ... is established where, as in the present case, the court finds that, by both their meaning and their scope, the impugned texts may arouse a feeling of rejection or hostility, hatred or violence, towards a group or an individual on account of a particular religion; ... second, since the above-mentioned text falls within the restrictions provided for in paragraph 2 of Article 10 of the European Convention on Human Rights, the principle of freedom of expression enshrined in paragraph 1 of that Article cannot be relied upon; ...”" ]

[ "RELEVANT LEGAL FRAMEWORK", "DOMESTIC LAW Law of 29 July 1881", "Law of 29 July 1881", "Law of 29 July 1881", "25. The relevant provisions in force at the material time read as follows:", "Section 23", "“Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, or by any electronic means of communication to the public, has directly incited the perpetrator or perpetrators to commit a serious crime or major offence ( crime or délit ), and if the incitement has been acted upon, shall be punished as an accessory to the said offence.", "This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime ( crime ) under Article 2 of the Criminal Code.”", "Section 24 (paragraphs 8 and 10-12)", "“Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or because they belong, or do not belong, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions.", "...", "Where a conviction is secured for one of the offences provided for in the two preceding paragraphs, the court may further order:", "1 o The deprivation of the rights listed in paragraphs 2 o and 3 o of Article 131-26 of the Criminal Code for a maximum of five years, save where the offender’s liability is engaged under section 42 and the first paragraph of section 43 hereof, or under the first three paragraphs of section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication.", "2 o The display or dissemination of the decision pursuant to Article 131-35 of the Criminal Code.", "...”", "Section 65-3", "“For the offences ( délits ) provided for in the sixth and eighth paragraphs of section 24, section 24 bis, the second paragraph of section 32 and the third paragraph of section 33, the limitation period prescribed by section 65 shall be one year.”", "Section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication", "26. The relevant provisions as in force at the material time read as follows:", "“Where one of the offences provided for in chapter IV of the Freedom of the Press Act of 29 July 1881 is committed by an electronic means of public communication, the publication director or, in the situation provided for in the second paragraph of section 93-2 hereof, the codirector, shall be prosecuted as the principal, when the content of the impugned message has been fixed prior to its communication to the public.", "In the absence thereof, the author, and failing which the producer, shall be prosecuted as principal.", "Where charges are brought against the publication director or codirector, the author shall be prosecuted as an accessory.", "Any person to whom Article 121-7 of the Criminal Code is applicable may also be prosecuted as an accessory.", "Where the offence stems from the content of a message addressed by an Internet user to an electronic public communication service and made available by that service to the public in a forum of personal contributions identified as such, the publication director or codirector may not be held criminally liable as principal if it is established that he or she had no effective knowledge of the message before it was posted on line or if, upon becoming aware thereof, he or she acted promptly to ensure the deletion of the said message. ”", "27. In a decision of 16 September 2011 (no. 2011-164 QPC), the Constitutional Council declared section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication to be compliant with the Constitution, subject to the following consideration:", "“7. Consequently, taking into account, on the one hand, the specific liability applicable to the publication director under the first and last paragraphs of section 93-3 and, on the other, the characteristics of the Internet which, as the relevant rules and techniques now stand, allow the author of a message disseminated on the Internet to preserve his or her anonymity, the provisions under review could not, without establishing an irrebuttable presumption of criminal liability in breach of the aforementioned constitutional requirements, be interpreted as allowing the creator or administrator of an online public communication site, enabling messages from Internet users to be accessed by the public, to be held criminally liable as a producer solely on account of the content of a message of which he or she was unaware before it was posted online. Subject to that reservation, the provisions under review are not contrary to Article 9 of the Declaration of 1789.”", "28. Subsequently, in a judgment of 30 October 2012 (Appeal no. 10-88825), the Criminal Division of the Court of Cassation ruled as follows:", "“It can be inferred [from section 93-3 of the Law of 29 July 1982] that the criminal liability of the producer of an online public communication site, enabling messages from Internet users to be accessed by the public, will only be engaged, on account of the content of such messages, where it is established that he or she had been aware thereof before they were posted online or that, if that were not the case, he or she refrained from acting promptly to remove them upon becoming aware thereof.", "...", "However, in so deciding, without ascertaining whether, in his capacity as producer, Mr X ... had been aware of the content of the offending message before it was posted online or whether, if that were not the case, he had refrained from acting promptly to withdraw it as soon as he became aware thereof, the Court of Appeal did not correctly apply section 93-3 of the amended Law of 29 July 1982 on audiovisual communication in the light of the above-mentioned reservation of the Constitutional Council. ...”", "29. The Court of Cassation had also developed case-law on the concept of “producer”, adopting this characterisation for a person who had taken the initiative of creating an electronic communication service for the exchange of opinions on pre-defined topics ( Court of Cassation, Criminal Division, 8 December 1998, Bull. crim., no. 335; Court of Cassation, Criminal Division, 16 February 2010, Bull. crim., no. 30 – concerning the liability, as producer, of the managing director of a company operating a website, on account of the dissemination of a number of texts on a discussion forum; and Court of Cassation, Criminal Division, 16 February 2010, Bull. crim., no. 31 – concerning the liability, as producer, of the chair of an association for the dissemination of contentious statements on the latter’s blog). This definition of “producer” was accepted by the Constitutional Council, which, in its decision of 16 September 2011 (see paragraph 27 above), observed:", "“It follows from these provisions, as interpreted by the Court of Cassation in its judgments of 16 February 2010 ..., that a person who has taken the initiative of creating an online communication service for the exchange of opinions on pre-defined topics may be prosecuted in his or her capacity as producer.”", "30. Furthermore, the Court of Cassation has ruled that the use of the Internet is covered by the phrase “any electronic means of public communication” (Court of Cassation, Criminal Division, 6 May 2003, Bull. crim., no. 94; and Court of Cassation, Criminal Division, 10 May 2005, Bull. crim., no. 144), while developing case-law on the concept of “publicity”, which is established when the addressees are not linked to each other by a community of interest and the offending remarks are disseminated via a website accessible to the public (Court of Cassation, Criminal Division, 26 February 2008, Appeal no. 07-87.846, and 26 March 2008, Appeal no. 07-83.672). The Court of Cassation has thus held that insults published on the “wall” of a defendant’s Facebook account, which were accessible only to individuals approved by the defendant, constituted private and not public insults (Court of Cassation, Criminal Division, 10 April 2013, Appeal no. 11-19.530).", "31. As regards the offence ( délit ) of incitement to hatred or violence, the Court of Cassation has consistently held that the comments in question must be such as to arouse immediate reactions from the reader, against the persons targeted, of rejection or even hatred and violence (Court of Cassation, Criminal Division, 21 May 1996, Bull. crim., no. 210), or that the judges must find that both by its meaning and its scope, the text at issue may either arouse a feeling of hostility or rejection, or incite the public to hatred or violence against a specific person or group (Court of Cassation, Criminal Division, 16 July 1992, Bull crim. no. 273; Court of Cassation, Criminal Division, 14 May 2002, Appeal no. 01-85.482; Court of Cassation, Criminal Division, 30 May 2007, Appeal no. 06-84.328; Court of Cassation, Criminal Division, 29 January 2008, Appeal no. 07-83.695, and Court of Cassation, Criminal Division, 3 February 2009, Appeal nos. 06-83.063 and 08-82.402). Comments may also give rise to sanctions if their meaning is implicit (Court of Cassation, Criminal Division, 16 July 1992, Bull. crim., no. 273).", "32. Furthermore, Law no. 2020-766 of 24 June 2020, on the combat against hateful content on the Internet (and which was the subject of Constitutional Council decision no. 2020-801 DC of 18 June 2020, declaring numerous provisions to be unconstitutional) created an online hate “Observatory”. Its mission is to monitor and analyse developments in this area, by involving operators (in particular of social networks such as Facebook), associations, authorities and researchers concerned with the combat against and prevention of such acts. Working groups have been tasked with reflecting on the concept of hateful content, improving knowledge of this phenomenon, analysing the mechanisms of dissemination and the means of combating it and, lastly, ensuring prevention, education and support for Internet users.", "33. The said Law also led to the creation of a national centre for combating online hate, within the Paris tribunal judiciaire, which started operating in January 2021. It exercises jurisdiction based on the complexity of the procedure or the extent of the breach of public order, which may stem in particular from the high media profile or particular sensitivity of a given case (Circular of 24 November 2020 on the combat against online hate – CRIM 2020 23 E1 24.11.2020).", "INTERNATIONAL INSTRUMENTS Internet communication", "Internet communication", "Internet communication", "34. The relevant texts adopted by the Council of Europe’s Committee of Ministers and the United Nations can be found in paragraphs 44 to 49 of the judgment in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015).", "Hate speechUnited Nations", "United Nations", "United Nations", "(a) Human Rights Council", "35. In his report submitted in accordance with Human Rights Council resolution 16/4 (A/67/357, 7 September 2012), the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr Frank La Rue, made the following observations:", "“46. While some of the above concepts may overlap, the Special Rapporteur considers the following elements to be essential when determining whether an expression constitutes incitement to hatred: real and imminent danger of violence resulting from the expression; intent of the speaker to incite discrimination, hostility or violence; and careful consideration by the judiciary of the context in which hatred was expressed, given that international law prohibits some forms of speech for their consequences, and not for their content as such, because what is deeply offensive in one community may not be so in another. Accordingly, any contextual assessment must include consideration of various factors, including the existence of patterns of tension between religious or racial communities, discrimination against the targeted group, the tone and content of the speech, the person inciting hatred and the means of disseminating the expression of hate. For example, a statement released by an individual to a small and restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website. Similarly, artistic expression should be considered with reference to its artistic value and context, given that art may be used to provoke strong feelings without the intention of inciting violence, discrimination or hostility.", "47. Moreover, while States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence under article 20 (2) of the Covenant, there is no requirement to criminalize such expression. The Special Rapporteur underscores that only serious and extreme instances of incitement to hatred, which would cross the seven-part threshold, should be criminalized.", "48. In other cases, the Special Rapporteur is of the view that States should adopt civil laws, with the application of diverse remedies, including procedural remedies (for example, access to justice and ensuring effectiveness of domestic institutions) and substantive remedies (for example, reparations that are adequate, prompt and proportionate to the gravity of the expression, which may include restoring reputation, preventing recurrence and providing financial compensation).", "49. In addition, while some types of expression may raise concerns in terms of tolerance, civility and respect for others, there are instances in which neither criminal nor civil sanctions are justified. The Special Rapporteur wishes to reiterate that the right to freedom of expression includes forms of expression that are offensive, disturbing and shocking. Indeed, since not all types of inflammatory, hateful or offensive speech amount to incitement, the two should not be conflated.”", "(b) Committee on the Elimination of Racial Discrimination", "36. General Recommendation no. 35 of 26 September 2013, on combating racist hate speech, provides guidelines on the requirements of the International Convention on the Elimination of All Forms of Racial Discrimination, the aim being to help the States parties to fulfil their obligations. It is indicated in particular as follows:", "“6. Racist hate speech addressed in Committee practice has included all the specific speech forms referred to in article 4 directed against groups recognized in article 1 of the Convention – which forbids discrimination on grounds of race, colour, descent, or national or ethnic origin – such as indigenous peoples, descent-based groups, and immigrants or non-citizens, including migrant domestic workers, refugees and asylum seekers, as well as speech directed against women members of these and other vulnerable groups. In the light of the principle of intersectionality, and bearing in mind that ‘criticism of religious leaders or commentary on religious doctrine or tenets of faith’ should not be prohibited or punished, the Committee’s attention has also been engaged by hate speech targeting persons belonging to certain ethnic groups who profess or practice a religion different from the majority, including expressions of Islamophobia, anti-Semitism and other similar manifestations of hatred against ethno-religious groups, as well as extreme manifestations of hatred such as incitement to genocide and to terrorism. Stereotyping and stigmatization of members of protected groups has also been the subject of expressions of concern and recommendations adopted by the Committee.", "7. Racist hate speech can take many forms and is not confined to explicitly racial remarks. As is the case with discrimination under article 1, speech attacking particular racial or ethnic groups may employ indirect language in order to disguise its targets and objectives. In line with their obligations under the Convention, States parties should give due attention to all manifestations of racist hate speech and take effective measures to combat them. The principles articulated in the present recommendation apply to racist hate speech, whether emanating from individuals or groups, in whatever forms it manifests itself, orally or in print, or disseminated through electronic media, including the Internet and social networking sites, as well as non-verbal forms of expression such as the display of racist symbols, images and behaviour at public gatherings, including sporting events.", "...", "15. ... On the qualification of dissemination and incitement as offences punishable by law, the Committee considers that the following contextual factors should be taken into account:", "The content and form of speech : whether the speech is provocative and direct, in what form it is constructed and disseminated, and the style in which it is delivered.", "The economic, social and political climate prevalent at the time the speech was made and disseminated, including the existence of patterns of discrimination against ethnic and other groups, including indigenous peoples. Discourses which in one context are innocuous or neutral may take on a dangerous significance in another: in its indicators on genocide the Committee emphasized the relevance of locality in appraising the meaning and potential effects of racist hate speech.", "The position or status of the speaker in society and the audience to which the speech is directed. The Committee consistently draws attention to the role of politicians and other public opinion-formers in contributing to the creation of a negative climate towards groups protected by the Convention, and has encouraged such persons and bodies to adopt positive approaches directed to the promotion of intercultural understanding and harmony. The Committee is aware of the special importance of freedom of speech in political matters and also that its exercise carries with it special duties and responsibilities.", "The reach of the speech, including the nature of the audience and the means of transmission: whether the speech was disseminated through mainstream media or the Internet, and the frequency and extent of the communication, in particular when repetition suggests the existence of a deliberate strategy to engender hostility towards ethnic and racial groups.", "The objectives of the speech: speech protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions.", "...", "39. Informed, ethical and objective media, including social media and the Internet, have an essential role in promoting responsibility in the dissemination of ideas and opinions. In addition to putting in place appropriate legislation for the media in line with international standards, States parties should encourage the public and private media to adopt codes of professional ethics and press codes that incorporate respect for the principles of the Convention and other fundamental human rights standards.”", "The Council of Europe", "(a) The Committee of Ministers", "37. The Annex to Recommendation no. R (97) 20 of the Council of Europe’s Committee of Ministers on “hate speech”, adopted on 30 October 1997, provides in particular as follows:", "“Scope", "The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media.", "For the purposes of the application of these principles, the term ‘hate speech’ shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.", "...", "Principle 1", "The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, anti-Semitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur.", "...", "Principle 4", "National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.", "Principle 5", "National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect’s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.", "Principle 6", "National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyse and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas.", "To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech, on the one hand, and any responsibility of the media and media professionals contributing to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.”", "(b) European Commission against Racism and Intolerance (ECRI)", "38. The relevant passages of ECRI’s General Policy Recommendation no 15 on combating hate speech, adopted on 8 December 2015 reads as follows:", "“ The European Commission against Racism and Intolerance (ECRI):", "...", "Taking note of the differing ways in which hate speech has been defined and is understood at the national and international level as well as of the different forms that it can take;", "Considering that hate speech is to be understood for the purpose of the present General Policy Recommendation as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of ‘race’, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status;", "...", "Recognising also that forms of expression that offend, shock or disturb will not on that account alone amount to hate speech and that action against the use of hate speech should serve to protect individuals and groups of persons rather than particular beliefs, ideologies or religions;", "Recognising that the use of hate speech can reflect or promote the unjustified assumption that the user is in some way superior to a person or a group of persons that is or are targeted by it;", "Recognising that the use of hate speech may be intended to incite, or reasonably expected to have the effect of inciting others to commit, acts of violence, intimidation, hostility or discrimination against those who are targeted by it and that this is an especially serious form of such speech;", "...", "Recognising that the use of hate speech appears to be increasing, especially through electronic forms of communication which magnify its impact, but that its exact extent remains unclear because of the lack of systematic reporting and collection of data on its occurrence and that this needs to be remedied, particularly through the provision of appropriate support for those targeted or affected by it;", "Aware that ignorance and insufficient media literacy, as well as alienation, discrimination, indoctrination and marginalisation, can be exploited to encourage the use of hate speech without the real character and consequences of such speech being fully appreciated;", "Stressing the importance of education in undermining the misconceptions and misinformation that form the basis of hate speech and of the need for such education to be directed in particular to the young;", "Recognising that an important means of tackling hate speech is through confronting and condemning it directly by counter-speech that clearly shows its destructive and unacceptable character;", "Recognising that politicians, religious and community leaders and others in public life have a particularly important responsibility in this regard because of their capacity to exercise influence over a wide audience;", "Conscious of the particular contribution that all forms of media, whether online or offline, can play both in disseminating and combating hate speech;", "Recommends that the governments of member States:", "10. take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion is respected, and accordingly:", "a. ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied;", "b. ensure that the scope of these offences is defined in a manner that permits their application to keep pace with technological developments;", "c. ensure that prosecutions for these offences are brought on a nondiscriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs;", "d. ensure the effective participation of those targeted by hate speech in the relevant proceedings;", "e. provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response;", "f. monitor the effectiveness of the investigation of complaints and the prosecution of offenders with a view to enhancing both of these;", "...”", "39. In its “Explanatory Memorandum” ECRI provides the following clarifications:", "“...", "14. The Recommendation further recognises that, in some instances, a particular feature of the use of hate speech is that it may be intended to incite, or can reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. As the definition above makes clear, the element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular hate speech used.", "15. Intent to incite might be established where there is an unambiguous call by the person using hate speech for others to commit the relevant acts or it might be inferred from the strength of the language used and other relevant circumstances, such as the previous conduct of the speaker. However, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used.", "...”", "European Union law and case-law of the Court of Justice of the European Union (CJEU)", "40. Framework Decision 2008/913/JHA of 28 November 2008 of the Council of the European Union on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ L 328, pp. 55-58) is presented in paragraphs 82 et seq. of the judgment in Perinçek v. Switzerland ([GC], no. 27510/08, ECHR 2015 (extracts)).", "41. In addition, in May 2016 the European Commission launched a code of conduct involving four major IT companies (Facebook, Microsoft, Twitter and YouTube) to address the proliferation of racist and xenophobic hate speech online. The aim of the code is to ensure that requests to remove content are dealt with quickly. To date the Commission has conducted five evaluations of the code of conduct and presented its results in December 2016 and June 2017, and in January 2018, 2019 and 2020. On 1 March 2018 the Commission published Recommendation (EU) 2018/334 on measures to combat illegal content online effectively (OJ L 63, 6 March 2018). Lastly, on 15 December 2020, the Commission published, inter alia, the draft “Digital Services Act” Regulation, with the aim of having it adopted in 2022, to enable the implementation of a new regulatory framework, introducing across the European Union a series of new harmonised obligations for digital services (COM/2020/825 final).", "42. As to the case-law of the CJEU, it held in its judgment Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v. Wirtschaftsakademie Schleswig-Holstein GmbH of 5 June 2018 (C-210/16, EU:C:2018: 388), that the administrator of a fan page hosted on Facebook must be characterised as being responsible for the processing of the data of individuals visiting the page and therefore shares joint liability with the operator of the social network, within the meaning of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281 of 23 November 1995, pp. 31-50).", "43. In its judgment in Fashion ID of 29 July 2019 (C-40/17, EU:C:2019:629), it held that the manager of a website, who inserts a “like” module from the social network Facebook, may be regarded as responsible, within the meaning of Directive 95/46, for the collection and communication of the personal data of visitors to his or her website.", "44. In Glawischnig-Piesczek v. Facebook Ireland of 3 October 2019 (C- 18/18, EU:C:2019:821), the CJEU held that Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178 of 17 July 2000, pp. 1-16), in particular Article 15(1) thereof, must be interpreted as not precluding a court of a Member State from: ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information; ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content; and ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law.", "TERMS OF USE OF social NETWORK Facebook", "45. At the relevant time a “Statement of rights and responsibilities” governed Facebook’s relations with its users, who were deemed to agree to it upon accessing the network. It provided in particular as follows: “when you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information and to associate it with you (i.e. your name and profile picture)” (point 2.4). The statement also contained a provision on “hateful” content (replaced by “hate speech”, then “hateful speech” on subsequent amendment – cf. Part III, point 12 “Hate Speech”, in the latest version of “Community Standards”).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "46. The applicant argued that his criminal conviction, on account of comments posted by third parties on the “wall” of his Facebook account, had breached Article 10 of the Convention, which reads as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "Admissibility", "47. Noting that this complaint is not manifestly ill-founded and is not inadmissible on any other grounds within the meaning of Article 35 of the Convention, the Court declares it admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "48. The applicant submitted, by way of preliminary argument, that the domestic courts had extrapolated from the expression “kisses to [L.]” that it was directed against the partner of the deputy mayor of Nîmes and they had relied upon it in convicting him for incitement to racial hatred and discrimination, whereas L.T. had not been the subject of, or identifiable in, S.B.’s comment. He also stressed that he had not been aware, at the time of their publication, of the comments that had been posted on the “wall” of his Facebook account. He pointed out that S.B. had deleted his comments after his discussion with L.T., on the same day, and argued that he could not therefore be criticised for failing to react promptly to a publication that had materially existed for less than twenty-four hours and in respect of which L.T. had not sent him any notice to delete, even though his contact details, in his capacity as a local councillor, were in the public domain. The applicant stated that he was not a close friend of the couple, the deputy mayor of Nîmes and his partner, that he knew neither the surname nor the forename of the partner and that she was not a public figure. Lastly, he noted that, after the comments containing the expression “kisses to [L.]” had immediately been removed by their author, S.B., only the comments published by L.R. remained, and the latter had made no reference to L.T. The applicant concluded that his conviction had been decided in breach of the requirement of foreseeability of the law, since he had not been able to anticipate its application to the circumstances of the case.", "49. The applicant further submitted that the Court’s case-law attached the utmost importance to the protection of freedom of expression in the context of political controversy, especially during an election period. L.R. had therefore been legitimately entitled to post his unseemly comments about the deterioration of the town of Nîmes during the term of office of the outgoing mayor. He also submitted that in their case-law prior to the events, the domestic courts had required much harsher language, which had to “contain an incitement or an encouragement to commit an act”. The applicant also saw in this a failure to ensure foreseeability and legal certainty.", "50. By analogy with the case-law concerning the lack of liability of journalists who merely “disseminated” statements made by third parties (referring to Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, 2 February 2016), the applicant submitted that his conviction, in his capacity merely as publisher or producer, did not appear to be a necessary and proportionate restriction of his freedom to impart information, given that the authors of the impugned statements had been identified and punished. He also criticised the courts for not taking into account the fact that at no time had the person who considered herself the target of the comments asked him to delete them. In his view this would entail a strict liability potentially requiring him to close the commenting space altogether and thus entailing a chilling effect on freedom of expression.", "51. Lastly, the applicant contended that by requiring him to ensure particular vigilance on account of the fact that his Facebook profile was likely to attract comments of a political nature that were in essence polemical, the courts had placed a special burden of liability upon him.", "(b) The Government", "52. The Government began by stating that the criminal offences provided for in the Freedom of the Press Act of 29 July 1881, where they were committed not by the written press but by an audiovisual or online means of communication, were subject, in view of the specific nature of such media, to a special system of criminal liability governed by sections 93-2 and 93-3 of Law no. 82-652 of 29 July 1982.", "53. They added that Facebook pages fell within the category of online communication to the public, which was itself included in the broader category of electronic means of public communication. They emphasised that, according to the Court of Cassation and the Constitutional Council, the “producer” was “the person who took the initiative of creating an online public communication service for the exchange of opinions on pre-defined themes”.", "54. The Government acknowledged that there had been no other case-law concerning the criminal liability of an individual who owned a Facebook “wall” on account of comments posted there by third parties. They noted, however, that the Court of Cassation had previously held that the use of the Internet was covered by the phrase “any electronic means of communication to the public”, while developing case-law on the concept of “publicity”, which was established when the addressees were not linked to each other by a community of interest and the offending remarks were disseminated via a website accessible to the public (see paragraph 29 above). They further referred to two cases in which the Court of Cassation had handed down judgments relating to the criminal liability of private individuals, producers of an online public communication site enabling messages from Internet users to be accessed by the public, under section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication: one concerned the agent of a chain of shops (creator of a “discussion forum” on the Internet aimed at allowing non-salaried managers of the chain’s shops to express their views), who had been sued for defamation on account of comments posted on the forum ( Court of Cassation, Criminal Division, 31 January 2012, Appeal no. 11-80.010); the second concerned the chair of an association for the defence of local residents of a municipality, on account of comments posted by Internet users on the personal contribution page of the association’s website (Court of Cassation, Criminal Division, 30 October 2012, Appeal no. 10-88.825).", "55. The Government did not deny that the applicant’s conviction constituted an interference with the exercise of his right to freedom of expression and in particular with his right to impart information. However, they took the view that this interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.", "56. They first pointed out that the Court had previously held that a conviction under section 24 of the Act of 29 July 1881 was “prescribed by law” within the meaning of Article 10 § 2 of the Convention ( Soulas and Others v. France, no. 15948/03, 10 July 2008). As to whether the offence could be imputed to the applicant, they noted that the concept of producer of an online communication site, the definition of which had not changed since the Court of Cassation’s judgment of 8 December 1998, had been perfectly foreseeable and accessible to the applicant, a fact which the latter had not disputed. They took the view that the applicant was merely challenging the domestic courts’ in concreto assessment of the constituent elements of the offence.", "57. The Government added that the applicant’s analysis of the grounds for his conviction was incorrect. In actual fact, the domestic courts had noted his status as a politician in order to characterise him as a producer, establishing that he had deliberately chosen to set up an online communication site, and they had convicted him on the ground that he had not promptly deleted the hateful comments. His status as a politician had been noted among other evidence and facts, including his own statements about his daily consultation of the site, the fact that he could not have been unaware of the comments or the fact that he had been informed of the civil party’s anger.", "58. As to the legitimate aim, the Government stressed that section 24 of the Act of 29 July 1881 punished conduct which induced a feeling of hostility, rejection or hatred towards members of a community. The interference had sought to ensure the “protection of the reputation or rights of others”, this being one of the legitimate aims enumerated in the second paragraph of Article 10.", "59. As to the necessity of the interference, the Government noted that the issue was a novel one, while acknowledging that similar subjects had been analysed in the Court’s case-law.", "60. They submitted that, in view of the context of the case and the nature of the remarks made, the State had enjoyed a wide margin of appreciation. While this margin was narrower in the case of remarks made by a politician in a political or general-interest debate, this was not the case where they actually constituted hate speech.", "61. They noted that the applicant had not been convicted for posting, on his Facebook “wall”, comments expressing a mere political opinion on changes in the town of Nîmes, but comments that had incited hatred towards the Muslim community in general and L.T. in particular. In their view, the aim and effect of the impugned remarks had been to arouse a strong feeling of rejection and hatred towards those targets, whilst the applicant had maintained that they “remained within the limits of freedom of expression” since they contained “no call to murder or violence”. In the Government’s submission, the test for hate speech was not whether or not it called for murder, but whether it aroused significant feelings of rejection and hatred. The impugned statements therefore fell within the scope of hate speech, in respect of which States had a broader margin of appreciation in view of the serious consequences that such speech could have.", "62. The Government further argued that, as a politician, the applicant had special “duties and responsibilities” in relation to hate speech, thus affecting the margin of appreciation to be afforded to the State.", "63. As to the existence of sufficient and relevant grounds, the Government first noted the electoral context and, consequently, the fact that the Facebook “wall” was likely to receive numerous hits. L.R.’s comment had been left there even though the applicant had issued a statement urging commentators to be careful, thus showing that he had read the posts on the “wall” of his Facebook account. Therefore, the retention of L.R.’s comment, together with the warning given, could have led the reader to believe that the applicant had not regarded it as problematic and that he was associating himself with it. His conviction had therefore been in keeping with the need to combat hate speech effectively during election campaigns.", "64. With regard to the status of the person targeted by the impugned comments, they pointed out that L.T. was well known but without being a public figure. She could therefore legitimately expect not to be associated, like the Muslim community, with the alleged insecurity in the town of Nîmes.", "65. The Government further submitted that the national courts, in well-reasoned decisions, had found that the remarks in question amounted to incitement to hatred. They had convicted the applicant because he had deliberately left a hateful comment on the “wall” of his Facebook account, despite being aware of its existence. The applicant had chosen to allow comments to be posted on his “wall” and to make it publicly accessible.", "66. The Government pointed out that, contrary to the applicant’s submission, the case-law prior to the relevant events had not required much harsher language “containing an incitement or encouragement to commit an act”. On the contrary, according to the Court of Cassation, trial courts had to find that the impugned remarks “may incite the public to discrimination, hatred or violence against a specific person or group”, incitement already being defined as any remarks capable of inciting the public to discrimination, hatred or violence against a specific person or group.", "67. The Government submitted, lastly, that the severity of the penalty was proportionate to the offence committed.", "The Court’s assessment", "68. The Court notes that it is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such interference will infringe Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 and was “necessary” in a democratic society in order to achieve the aim or aims in question.", "(a) “Prescribed by law”", "69. The applicant began by complaining about the lack of foreseeability of his criminal conviction, alleging a breach of the principle of legal certainty. The Court, however, agrees with the Government’s observation that the applicant merely called into question the in concreto assessment by the domestic courts of the elements of the offence (see paragraph 56 above). It thus notes that the applicant, who did not raise any arguments to dispute the point that the interference was “prescribed by law” within the meaning of Article 10 of the Convention in the context of his appeal on points of law (see paragraph 23 above), was in fact complaining about the assessment by the domestic courts in the circumstances of the case (see paragraphs 48 et seq. above), this being relevant to an examination of the “necessity” of the interference and not to whether the interference was “prescribed by law”.", "70. Moreover, the Court notes that the applicant’s criminal conviction was handed down mainly on the basis of section 23 first paragraph, section 24, eighth paragraph, of the Law of 29 July 1881 and section 93-3 of Law no. 82-652 of 29 July 1982 (see paragraphs 16 and 25-26 above).", "71. It observes that it has previously found that a criminal conviction under sections 23 and 24 of the Law of 29 July 1881 meets the requirement of foreseeability of the law within the meaning of Article 10 of the Convention (see, among other authorities, Garaudy v. France (dec.), no. 65831/01, 24 June 2003; Soulas and Others v. France, no. 15948/03, § 29, 10 July 2008; and Le Pen v. France (dec.), no. 18788/09, 20 April 2010 ). It does not see any reason to depart from that finding in the present case.", "72. The Court also notes that the applicant was prosecuted as principal, in his capacity as producer within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982, in line both with the Constitutional Council’s decision of 16 September 2011 and the Court of Cassation’s case-law prior to the applicant’s conviction concerning the concept of “producer” (see paragraphs 27-29 above). Admittedly, it finds that the responsibility of a Facebook account holder on account of remarks posted on the “wall” had not previously given rise to any specific case-law. The Court would point out, however, that the novel character, particularly in the light of case-law, of the legal question thus raised does not constitute in itself a breach of the requirements of accessibility and foreseeability of the law, in so far as the solution adopted was one of the possible and reasonably foreseeable interpretations (see, mutatis mutandis, Soros v. France, no. 50425/06, § 58, 6 October 2011; Huhtamäki v. Finland, no. 54468/09, § 51, 6 March 2012; and X and Y v. France, no. 48158/11, § 61, 1 September 2016 ). In addition, and above all, the applicant has not called into question this legal basis in terms of the requirements of Article 10, not having raised such an objection in the context of his appeal on points of law either (see paragraph 23 above). The Court does not therefore find it necessary to address this aspect of the foreseeability of the law.", "73. In those circumstances, the Court does not see any reason to find that the interference was not “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention.", "(b) Legitimate aim", "74. The Court finds that the measure pursued the legitimate aim of protecting the reputation or rights of others ( see Soulas, cited above, § 30; Le Pen, cited above; and Delfi AS v. Estonia [GC], no. 64569/09, § 130, ECHR 2015 ).", "(c) Whether the interference was “necessary in a democratic society”", "(i) General principles", "75. The Court would refer to the general principles for assessing the necessity of an interference with the exercise of freedom of expression, those principles having been frequently reaffirmed by the Court since the Handyside v. the United Kingdom judgment (7 December 1976, Series A no. 24), and restated more recently in Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015), Delfi AS (cited above, §§ 131-139), and Perinçek v. Switzerland ([GC], no. 27510/08, §§ 196-97, ECHR 2015 (extracts), with the case-law references therein).", "76. The Court thus reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.", "77. The adjective “necessary” in Article 10 § 2 implies the existence of a pressing social need. In general, the “need” for an interference with the exercise of the freedom of expression must be convincingly established. Admittedly, it is primarily for the national authorities to assess whether there is such a need capable of justifying that interference and, to that end, they enjoy a certain margin of appreciation. However, the margin of appreciation goes hand in hand with European supervision, embracing both the law and the decisions that apply it.", "78. In exercising its supervisory jurisdiction, the Court must examine the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and that, moreover, they relied on an acceptable assessment of the relevant facts.", "(ii) Application to the present case", "79. The Court observes that the domestic courts found the applicant guilty of the offence of incitement to hatred or violence against a group in general, and the individual L.T. in particular, on account of their origin or the fact of belonging, or not belonging, to a given ethnicity, nation, race or religion. The Nîmes criminal court, relying on the provisions of section 93-3 of the Law of 29 July 1982, as interpreted by the Constitutional Council in its decision of 16 September 2011, found that the applicant, by taking the initiative of creating an electronic public communication service for the exchange opinions, and by allowing L.R.’s comments to remain visible almost six weeks after they had been posted, the applicant had not promptly put an end to this dissemination and was therefore guilty in his capacity as principal (see paragraph 18 above). Subsequently, the Nîmes Court of Appeal, while upholding the first-instance judgment, noted for its part that there was no evidence that the applicant had been informed of the content of the comments before they were published, but that in his capacity as an elected representative and public figure, which required him to be particularly vigilant, he had knowingly made the “wall” of his Facebook account public and had thus authorised his friends to post comments on it, thereby becoming liable for the content of any such posts. It also found that the applicant had not promptly stopped the dissemination of the impugned comments, while noting that he had further justified his position by claiming that such comments were compatible with freedom of expression and that he had deliberately left them on his Facebook “wall” (see paragraph 22 above).", "80. In the light of the reasoning of the domestic courts, the Court must, in accordance with its constant case-law, examine whether their finding of liability on the part of the applicant was based on relevant and sufficient grounds in the particular circumstances of the case (see, in relation to a major Internet news portal, Delfi AS, cited above, § 142). In doing so, and in assessing the proportionality of the impugned penalty, it will consider the context of the comments, the steps taken by the applicant to remove the comments once published, the possibility that the authors might have been held liable instead of the applicant and, lastly, the repercussions of the domestic proceedings for the applicant (see, inter alia, Delfi AS, cited above, §§ 142-43, and Jezior v. Poland [Committee], no. 31955/11, § 53, 4 June 2020).", "(α) Context of impugned comments", "‒ Nature of impugned comments", "81. The Court notes at the outset that the comments posted on the “wall” of the applicant’s Facebook account were clearly unlawful in nature (see, mutatis mutandis, Delfi AS, cited above, § 140). Both the Criminal Court, in its judgment of 28 February 2013 (see paragraph 17 above), and the Nîmes Court of Appeal, in its judgment of 18 October 2013 (see paragraph 21 above), established in reasoned decisions that: first, the impugned remarks clearly defined the group concerned, namely Muslims, and that to equate the Muslim community with delinquency and insecurity in the city of Nîmes, by associating this group with “drug dealers and prostitutes” who “reign supreme”, “riff-raff [who] sell drugs all day long” or those who throw stones “at ‘white people’s’ cars”, sought, in meaning and scope, to arouse a strong feeling of rejection and hostility towards the group of people who were known or presumed to be Muslims; on the other hand, the expression “Kisses to [L.]” referring to L.T., who was associated with F.P., a deputy mayor of the town of Nîmes portrayed in the comments as having contributed to the abandonment of the town to Muslims and thus to insecurity, was such as to associate her – because she was presumed, on account of her forename, to belong the Muslim community – with the alleged transformation of the town and thus to arouse hatred and violence against her personally.", "82. The applicant indeed claimed that L.T. had not been the subject of S.B.’s comment and had not been identifiable (see paragraph 48 above) and that L.R.’s remarks, made in an electoral context, had not exceeded the limits of the right to freedom of expression (see paragraphs 14 and 49 above).", "83. On this point, the Court reiterates that its role is limited to ascertaining whether the interference at issue in the present case can be regarded as “necessary in a democratic society” and that Contracting States enjoy, under Article 10, a certain margin of appreciation in assessing the need for and extent of an interference in the freedom of expression protected by that Article (see Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 59, ECHR 2012 (extracts)). This margin is defined by the type of expression in question; in this connection, there is little scope under Article 10 § 2 of the Convention for restrictions on political expression or on debate on questions of public interest (see Perinçek, cited above, § 197).", "84. As regards the electoral context relied upon by the applicant, the Court would emphasise that the promotion of free political debate is a very important feature of a democratic society. It attaches the highest importance to freedom of expression in the context of political debate and considers that very strong reasons are required to justify restrictions on political speech. Allowing broad restrictions on political speech in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001 VIII, and Féret v. Belgium, no. 15615/07, § 63, 16 July 2009). However, the freedom of political debate is undoubtedly not absolute in nature. A Contracting State may make it subject to certain “restrictions” or “penalties”, but it is for the Court to give a final ruling on the compatibility of such measures with the freedom of expression enshrined in Article 10 (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236, and Féret, cited above).", "85. The Court thus reiterates that tolerance and respect for the equal dignity of all human beings are the cornerstones of a democratic and pluralistic society. It follows that, in principle, it may be considered necessary in democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “sanctions” imposed are proportionate to the legitimate aim pursued (see Féret, cited above, § 64).", "86. The Court also attaches particular importance to the medium used and the context in which the offending remarks were disseminated, and therefore to their potential impact on public order ( ordre public ) and social cohesion (ibid., § 76). The present case concerned the “wall” of a Facebook account which was freely accessible to the public and used in the context of an election campaign, representing a form of expression which was aimed at the electorate in the broad sense, and thus the entire population. As the Court has previously held, in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet, which includes blogs and social media (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 168, 8 November 2016), plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general (see Delfi AS, cited above, § 133). However, while user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression, alongside these benefits certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before (ibid., § 110; Savva Terentyev v. Russia, no. 10692/09, § 79, 28 August 2018; and Savcı Çengel v. Turkey (dec.), no. 30697/19, § 35, 18 May 2021).", "87. In an electoral context, while political parties should enjoy broad freedom of expression in order to try to convince their electorate, in the case of racist or xenophobic discourse such a context may contribute to stirring up hatred and intolerance, as the positions of election candidates tend to become more rigid and slogans or stereotyped formulae are given more prominence than reasonable arguments. The impact of racist and xenophobic discourse is then likely to become greater and more harmful (see Féret, cited above, § 76). The Court reiterates that the particular responsibility of politicians in combating hate speech has also been emphasised by the Committee on the Elimination of Racial Discrimination in its General Recommendation no. 35 of 26 September 2013 (see paragraph 36 above) and by ECRI in its General Policy Recommendation no. 15 (see paragraph 38 above).", "88. The Court has examined the offending remarks posted by S.B. and L.R., who were not themselves politicians or active members of a political party speaking on its behalf. It considers that the domestic courts’ findings regarding these posts were fully justified. The language used clearly incited hatred and violence against a person on account of his or her religious association and this fact cannot be disguised or minimised by the electoral context (see, mutatis mutandis, Féret, cited above, § 76) or the intended reference to local problems. The Court reiterates, as a matter of principle, that inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering certain parts of the population or specific groups thereof, or to incite hatred and violence against a person on account of his or her religious association, as was the case in the present instance, will be sufficient for the authorities to seek to combat such xenophobic or otherwise discriminatory speech in response to freedom of expression which has been exercised in an irresponsible manner and is harmful to the dignity, or even the safety, of those parties or groups (ibid., § 73, and Atamanchuk v. Russia, no. 4493/11, § 52, 11 February 2020). The Court would also refer to the Explanatory Memorandum in respect of ECRI’s General Policy Recommendation No. 15 of 8 December 2015 (see paragraph 39 above), according to which, in some instances, a particular feature of the use of “hate speech” is that it may be intended to incite, or can reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. The element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular “hate speech” used. Intent to incite might be established where there is an unambiguous call by the person using hate speech for others to commit the relevant acts or it might be inferred from the strength of the language used and other relevant circumstances, such as the previous conduct of the speaker. However, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used (see also Kilin v. Russia, no. 10271/12, § 73, 11 May 2021).", "‒ The applicant’s liability in respect of comments by third parties", "89. The Court would point out that the comments in question were expressed in the context of the local political debate, more specifically an election campaign for the forthcoming parliamentary elections, and that they were posted on the “wall” of the Facebook account of the applicant, an elected politician and candidate in those elections. While the Court attaches the utmost importance to freedom of expression in the context of political debate and considers that political discourse cannot be restricted without compelling reasons (see paragraph 84 above), and it is particularly important in the period preceding an election that opinions and information of all kinds are permitted to circulate freely (see Orlovskaya Iskra v. Russia, no. 42911/08, § 110, 21 February 2017, and Magyar Kétfarkú Kutya Párt, cited above, § 56), it would nevertheless refer back to its finding as to the clearly unlawful nature of the impugned comments (see paragraphs 81-88 above). Therefore, in addition to the fact that comments made in the context of political debate must not exceed certain limits, particularly as regards respect for the reputation and rights of others (see Le Pen v. France (dec.), no. 45416/16, § 34, 28 February 2017), in view of “the vital importance of combating racial discrimination in all its forms and manifestations” (see Jersild v. Denmark, 23 September 1994, §§ 30-31, Series A no. 298), the applicant’s status as an elected official cannot be regarded as a circumstance mitigating his liability (see Féret, cited above, § 75). In this connection, the Court reiterates that it is crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance (see Erbakan v. Turkey, no. 59405/00, 6 July 2006, § 64) and, since they too are subject to duties and responsibilities under Article 10 § 2 of the Convention, they should also be particularly careful to defend democracy and its principles, especially in an electoral context characterised, as in the present case, by local tensions, their ultimate aim being to govern (see Féret, cited above, § 75).", "90. The Court notes, moreover, that the applicant was not reproached for using his right to freedom of expression, particularly in the political debate, but for his lack of vigilance and reaction to certain comments posted on the “wall” of his Facebook account.", "91. The Court observes in this connection that F.P. was precisely one of the applicant’s political opponents (see paragraphs 4-5 above) and that the events took place in a particular local political context, with clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists.", "92. The Court has previously emphasised that national authorities are better placed than the Court to understand and appreciate the specific societal problems faced in particular communities and contexts (see Maguire v. the United Kingdom (dec.), no. 58060/13, § 54, 3 March 2015). From this perspective, the Court considers that the Nîmes Court of Appeal’s close knowledge of the local context of the events at issue enabled it to have a better grasp of the context of the impugned comments.", "93. The Court concludes from the foregoing that both the Criminal Court and the Court of Appeal based their reasoning as to the applicant’s liability on relevant and sufficient grounds under Article 10 of the Convention.", "(β) Steps taken by the applicant", "94. The Court notes that the Nîmes Court of Appeal held that there was no evidence that the applicant had been informed of the content of the comments before they were posted. Like the first-instance court, it thus examined the applicant’s conduct only in relation to the period after those comments appeared.", "95. The domestic courts relied on a number of factors in finding the applicant liable. Both the Criminal Court and the Nîmes Court of Appeal noted first of all that the applicant had knowingly made the “wall” of his Facebook account public and had thus authorised his friends, namely 1,829 individuals as at 25 October 2011 according to the first-instance court, to post comments on it. They concluded that the applicant was therefore under an obligation to monitor the content of the comments posted. Moreover, the Criminal Court emphasised that the applicant could not have been unaware of the fact that his account was likely to attract comments with an inherently polemical political content and that he had a heightened duty to monitor them specifically (see paragraph 18 above). The Court of Appeal considered, in the same vein, that his status as a political figure required him to be all the more vigilant (see paragraph 22 above). The Criminal Court accordingly rejected the applicant’s arguments that he had not had time to read the comments and was not aware of what S.B. and L.R. had posted, while the Court of Appeal pointed out that he had told the investigators that he consulted the “wall” of his Facebook account every day.", "96. The Court further notes that it is not in dispute that S.B. himself deleted the comment of which he was the author within minutes after L.T.’s arrival at his workplace, the morning after it was posted. L.T. formally acknowledged this to the investigators, stating that she had been able to see that the comment had disappeared shortly after her discussion with S.B. (see paragraph 11 above). The impugned comment, which was in fact the only one directed at L.T. and was widely relied upon by the domestic courts in their reasoning, was thus promptly withdrawn by its author, less than twenty-four hours after its publication. Accordingly, assuming that the applicant had indeed had the time and opportunity to see this comment before its deletion, the Court considers that to require him to have acted even more promptly, bearing in mind that the domestic authorities were unable to show the existence of such an obligation in the light of the particular circumstances of the case, would amount to requiring excessive and impracticable responsiveness (see, mutatis mutandis, Jezior, cited above, § 58).", "97. However, the Criminal Court expressly found that L.R.’s comments, for their part, were still visible on 6 December 2011 (see paragraph 18 above), that is to say, almost six weeks after they were posted (compare Delfi AS, cited above, and Pihl v. Sweden (dec.), no. 74742/14, 7 February 2017, cases where the unlawful content remained online for six weeks and nine days, respectively; contrast Jezior, cited above, § 57). The Court observes that, although the applicant informed the investigators that public access to the “wall” of his Facebook account had been removed, the deletion did not take place until a few days before his interview, that is to say, approximately three months after the events (see paragraph 14 above), even though S.B. had told the gendarmes that he had informed the applicant of his altercation with L.T. on the very same day, 25 October 2011 (see paragraph 13 above). Admittedly, on 27 October 2011 the applicant also posted a message on his “wall” inviting contributors to “be careful of the content of [their] comments”, but without deleting the impugned comment (see paragraph 10 above) and, in view of his statement that he had been unaware of L.R.’s remarks before being summoned by the gendarmes, without having taken the trouble to check, or have checked, the comments that were then publicly accessible.", "98. In addition, in the Court’s view there is, without any doubt, a shared liability between the holder of a social media account and the operator of the network (see, in the same vein, albeit concerning a fan page and not an individual account on Facebook, the CJEU judgment in Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v. Wirtschaftsakademie Schleswig-Holstein GmbH, paragraph 42 above). Moreover, Facebook’s terms of use already included the prohibition of hate speech, indicating that consent to this rule was given by all users upon accessing the network (see paragraph 45 above).", "99. In these circumstances, the Court is of the view that the grounds given by the Criminal Court and the Court of Appeal were, one again, in respect of the steps taken by the applicant, relevant and sufficient within the meaning of Article 10 of the Convention. It considers, moreover, that this finding is strengthened by the applicant’s claims, as taken into account by the Nîmes Court of Appeal, that such comments remained within the limits of freedom of expression (see paragraphs 14 and 22 above).", "(γ) Possibility of authors of comments being held liable instead", "100. The Court notes that the authors of the impugned remarks were identified, whether directly by L.T., who immediately recognised S.B. (see paragraph 8 above), or by the investigators in the case of L.R. (see paragraph 12 above). It points out that the applicant was nevertheless held liable, on the basis of section 93-3 of the Law of 29 July 1982, in his capacity as the producer of an online public communications site, allowing Internet users to post publicly accessible messages and incurring liability, in particular, by failing to remove unlawful messages as soon as he became aware of them. It thus notes that, although the applicant was considered by law to be the “perpetrator” of the offence and was sentenced accordingly by the domestic courts, he had in fact been accused of conduct which was separate from that of those who actually posted the comments on the “wall” of his Facebook account. In other words, the domestic courts established the facts for which the applicant was liable and he was not prosecuted instead of S.B. and L.R., who were dealt with separately, but on account of a particular form of conduct directly linked to his status as holder of the “wall” of his Facebook account. In the Court’s view, it is legitimate for such status to entail specific obligations, in particular where, like the applicant, the holder of a Facebook “wall” decides not to avail himself of the possibility of restricting access to it, choosing instead to make it accessible to the general public. Like the domestic courts, the Court considers that this is particularly true in a context which is conducive to the expression of clearly unlawful comments, as in the present case.", "101. Admittedly, as advocated in the Annex to Recommendation No. R (97) 20 of the Committee of Ministers of the Council of Europe on “hate speech” (see paragraph 37 above), domestic law and practice should draw a clear distinction between, on the one hand, the liability of the author of expressions of hate speech and, on the other, the potential liability of the media and media professionals who contribute to its dissemination as part of their task of imparting information and ideas on matters of public interest. In the present case, however, the comments were clearly unlawful (see paragraphs 81-88 above) and, moreover, contrary to Facebook’s terms of use (see paragraph 45 above).", "102. The domestic courts therefore relied on relevant and sufficient grounds in this connection.", "(δ) Repercussions of domestic proceedings for applicant", "103. The Court observes that the applicant was ordered to pay a fine, the amount of which was reduced by the Nîmes Court of Appeal to an amount of three thousand euros. It reiterates that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (see, among many other authorities, Leroy v. France, no. 36109/03, § 47, 2 October 2008, and Féret, cited above, § 79). It takes the view that, having regard to the sentence and the fact that there was no other established repercussion for the applicant, the interference with his right to freedom of expression was not disproportionate on this basis.", "(ε) Conclusion", "104. In conclusion, having regard to the specific circumstances of the present case, the Court finds that the decision of the domestic courts to convict the applicant, for not having promptly deleted the unlawful comments published by third parties on the “wall” of his Facebook account, used in the context of his election campaign, was based on relevant and sufficient reasons, having regard to the margin of appreciation afforded to the respondent State. The interference may thus be regarded as “necessary in a democratic society”.", "105. Accordingly, there has been no violation of Article 10 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants were born in 1950 and 1945 and live in İstanbul and Ankara respectively. They are university professors specialising, inter alia, in human rights protection.", "A. The facts common to the three applications", "1. The applicants ’ appointment to the Consultative Council on Human Rights", "6. On 5 February 2002 the applicants were appointed as members of the Consultative Council on Human Rights ( “the Consultative Council” ), a public body answerable to the Prime Minister which was set up under Law No. 4643 of 12 April 2001 and is responsible for providing the Government with opinions, recommendations, proposals and reports on the whole range of issues relating to the promotion and protection of human rights.", "7. At its first meeting on 26 February 2003 the Consultative Council elected Mr Kaboğlu as its chairman. At its second meeting on 9 May 2003 the Consultative Council elected Mr Oran chairman of the Working Group on issues relating to minority and cultural rights.", "2. Report on minority and cultural rights", "8. On 1 October 2004 the General Assembly of the Consultative Council discussed and adopted a report on minority and cultural rights ( “ the report ” ), presented by the above- mentioned working group. On 22 October 2004 the report, as amended by Mr Oran in line with the comments put forward by members of the Consultative Council at the meeting on 1 October 2004, was submitted to the Deputy Prime Minister responsible for Human Rights Affairs. The report first of all dealt with the concept and definition of and the historical background to the protection of minority and cultural rights in worldwide and in Turkey. It then went on to consider issues relating to the protection of minorities in Turkey, relying on the relevant provisions of the Treaty of Lausanne, national legislation and practice and the case-law of the higher courts. According to the report, there were two primary reasons for the problematical situation of minorities in Turkey: a theoretical reason tending to define the supra-identity in terms of “race” ( ırk ) and religion as Turkish ( Türk ) and not as Türkiyeli (“coming from Turkey”, “citizen of Turkey”), which resulted in alienating the infra-identities of citizens who do not belong to the Turkish “race” or the Muslim religion; and an historical/political reason stemming from the paranoia ( paranoya ) inherited from the dismantling of the country in the recent past, a syndrome referred to in the report as “the Sèvres syndrome” [1].", "9. Having explained that the Governments in the 1920 s and 1930 s had attempted to create a homogeneous and monocultural nation, the report stated that, having regard to the presence in the country of a patchwork of different cultures and identities, and in the light of global developments as regards the organisation of society up until the 2000 s, now was the time to revise the citizenship concept and to adopt, like all the European nations, a multi-identity, multicultural, democratic, liberal and pluralist societal model. It consequently proposed rewriting the Constitution and the relevant legislation from a liberal, pluralist and democratic angle, including the participation of the organised fringes of society; guaranteeing the rights of persons laying claim to different identities and cultures to preserve and develop those identities on the basis of equal citizenship; making central and local administrations more transparent and democratic such as to ensure participation and oversight by the citizens; signing and unreservedly ratifying the international treaties laying down the universal standards of human rights, and in particular the Council of Europe ’ s Framework Convention for the Protection of National Minorities; and, as regards international treaties, discontinuing the practice of entering reservations or interpretative declarations tending to negate infra-identities in Turkey.", "3. Reactions and events following the adoption of the report", "10. Following the publication of the report, several articles were published in broadly ultranationalist newspapers disparaging the text and criticising the applicants. Furthermore, a number of political leaders and senior officials criticised the report and its authors. On 26 October 2004, for example, an MP speaking in the National Assembly used, with regard to the authors of the report in question, expressions such as “ hired boffins” ( entel devşirme ), “ individuals spitting their venomous saliva ”, “ people in the pay of foreigners ”, “ persons who hate the words ‘ Turkish nation ’ ”, “ traitors ”, “ those who want to split up the Republic of Turkey ”, and “ enemy of the Turks ”. The Deputy Prime Minister spoke of a “ marginal report by marginal people ”, claiming that the authors had drawn it up without informing the Government of its content. The Minister of Justice described the report as “sowing intellectual discord ”. The Deputy Chief -of- Staff also criticised the report, declaring that the unitary structure of the State was beyond question. Moreover, the Director of Human Rights at the Prime Minister ’ s Office questioned the validity of the report by alleging that there had been no quorum when it had been adopted by the Assembly of the Consultative Council.", "11. On 1 November 2004 Mr Kaboğlu, in his capacity as Chairman of the Consultative Council, organised a press conference in order to reply to the criticisms of the report in question. At the beginning of the conference, which was shown on television, an ultranationalist trade unionist, F.Y., who was also a member of the Consultative Council, interrupted the meeting by ripping up a copy of the report in front of Mr Kaboğlu and saying “this report is fake and unlawful, we will not allow it to be read. ”", "12. In February 2005 the Prime Minister ’ s Office informed the applicants and twelve other members of the Consultative Council that their term of office would end on 5 February 2005. The Consultative Council has not been reconvened by the Government since that date.", "13. On 14 November 2005 the Ankara public prosecutor brought proceedings against the applicants on charges of incitement to hatred and hostility and denigration of the State judicial organs on account of the content of the report. After criminal proceedings lasting some four years and seven months, the applicants were acquitted on the charge of incitement to hatred and hostility; as regards the charge of denigration of the State judicial organs, since the Justice Minister had not consented to the opening of criminal proceedings – a legal precondition for that particular offence – the case was struck off the list.", "14. In that context, the applicants received death threats from ultranationalist groups and individuals by mail and email. In view of the threats and at the request of counsel for Mr Kaboğlu, the Istanbul Police Department granted him personal protection as from 2007, which protection has been renewed every year since that date. In January 2007 the Ankara police department decided ex officio to task a police officer with protecting Mr Oran. In January 2013 the measure was converted into one of on-call protection.", "B. Application no. 1759/08: proceedings concerning the articles authored by N.K.Z., B.A. and A.T.", "1. Civil proceedings against N.K.Z.", "15. On 28 October 2004 the daily newspaper Halka ve Olaylara Tercüman published an article by N.K.Z. on the subject of the report on minority and cultural rights. In the article, the author stated the following:", "“ These people should not be considered as liberal intellectuals. Some of them may be bona fide liberals. But their ringleaders are nothing less than traitors ...; there are no two ways about it : the Turkish nation, the Turkishness of Turkey and the Republic of Turkey are facing all-out treason ...; if [ the country ’ s Turkish majority ] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...; you obscurantists ( karanlıkçılar ) who present yourselves as liberal intellectuals ..., you can stick your phoney minorities up your Europe ( siz o uydurma azınlıklarınızı alın da gidin Avrupa ’ nıza sokun )! ... I would warn some of [ those who are going too far ] not to play with fire. ”", "16. On 31 December 2004 the applicants brought civil proceedings against the author of the article and the newspaper publishers. They claimed compensation for the non-pecuniary damage which they had sustained on account of the insulting and threatening language used by the author of the article against them.", "17. By judgment of 25 January 2005 the Ankara Regional Court dismissed the applicants ’ claim. The court ruled that the impugned article had not directly targeted the claimants since their names had not been cited, and that it was only to be expected that opinions which had been set out in a scientific report designed to guide government policies, but which had prompted concern about the preservation of Turkey ’ s unitary structure, should be severely criticised.", "18. On 20 April 2006 the applicants appealed on points of law. They submitted that since the author of the article had referred to their report he had obviously been directing his insults and threats at them and not at any unnamed persons. They further argued that the court ’ s refusal to condemn the impugned article, which, they submitted, had comprised insults and incited to violence against them, had amounted to an infringement of their right to freedom of expression.", "19. On 14 June 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 10 July 2008.", "2. Civil proceedings against B.A.", "20. On 27 October 2004 the daily newspaper Yeniçağ published an article relaying statements made by B.A., the Chairman of the Public Employers ’ Union Confederation, Kamu -Sen, concerning the applicants ’ report. B.A. had said :", "“ This report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with. ”", "21. On 8 November 2004 the daily newspaper Ortadoğu also published B.A. ’ s statements, including the following :", "“ This report is the result of a line of thought that has been put about for years with a view to dividing and separating us ... I would appeal to those responsible, and I swear that the price of the soil is blood, and if need be blood will be shed. ”", "22. On 7 January 2005 the applicants brought civil proceedings against B.A. They claimed compensation for the non-pecuniary damage which they considered they had sustained on account of the insults and threats against them contained in those two statements.", "23. By judgment of 25 July 2006 the Ankara Regional Court dismissed the applicants ’ claim on the grounds that their report was the subject of public debate, that in view of their social status they should tolerate criticism, including virulent critiques, and that B.A. ’ s statements had remained within the bounds of acceptable criticism. The court also considered that the expression “the price of the soil is blood, and if need be blood will be shed” was a popular saying which meant that people could lay down their lives for their country, rather than being a threat to the applicants. Furthermore, the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report.", "24. The applicants appealed on points of law. They argued that the impugned statements by B.A. had amounted to a clear and concrete call to violence, and had been intended to intimidate them and single them out as targets.", "25. On 22 October 2007 the Court of Cassation upheld the first-instance judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. That judgment was served on counsel for the applicants on 26 November 2007.", "3. Civil proceedings against A.T.", "26. On 26 October 2004 A.T. published an article in the daily newspaper Yeniçağ including the following passages:", "“ The rapporteur for the second set of Sèvres negotiations, Prof. Dr Baskın Oran ... ”, “ the treasonous report ( ihanet raporu ) penned by Baskın Oran ”, “ when the time is ripe, they will be held to account for having prepared a treasonous report ... ”", "27. Another article by A.T., published on 31 October 2004 in the same newspaper, contained the following passage:", "“ ... The report, concerning minority and cultural rights, [ was drafted by ] twenty-four leftist, separatist, subversive [persons] unhappy about the unity of the country [ who deserve ] the death penalty ... ”", "28. On 4 November 2004 the Yeniçağ newspaper published another article signed by A. T. which included the following sentences :", "“ F.Y. vehemently protested against İbrahim Kaboğlu and Baskın Oran, who had prepared and defended a report which might as well be called the ‘ report on the second set of Sèvres negotiations ’ ”; “ the leaders of the traitor networks say that there are millions of ülkücü [ ‘ idealists ’, extreme right-wing activists ] ...: so all these people are idiots and you are intelligent, is that it? Kaboğlu ’ s and Oran ’ s bad faith has been revealed on many occasions. Irregularities in the operation of the Consultative Council have been exposed. Why do these gentlemen ignore the protests against the irregularities committed during the preparation of this report, [ and why ] do they prefer to attack those who exercise their right to tear up this bumph dubbed as a ‘ report ’? ”", "29. In another article published on 5 November 2004 in the same paper, A.T. stated the following :", "“ ... The lickspittles with their report on minorities and cultural rights are threatening the country ’ s integrity ... İbrahim Kaboğlu says ‘ Atatürk did not say Türk, he said Türkiyeli ’ ... Anyone who goes so far as to hijack the words of Mustafa Kemal shows his bad faith, separatist aims and treachery ...”", "30. Another article by A.T., published on 6 November 2004 in Yeniçağ, contained the following statements and expressions:", "“ Within the Prime Minister ’ s office people are working on dismantling Turkey, and when we intervene we are accused of using brute force ...; be careful, twenty-four persons did vote for this report, but they did not sign it. The traitors are emerging when Turkey is weakened. ... The main pro- Sèvres cheerleader, Kaboğlu, ... was going to present the report to the public ... No one sees the unlawfulness, the deviousness, the betrayal underlying this case. They condemn as brutal F.Y. ’ s act of snatching the report from the hands of the pro- Sèvres cheerleader and ripping it up. If someone had kicked and punched the pro- Sèvres leader and his treacherous assistants, that would have been brutality. In my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing... No punches were thrown, and yet they consider the ripping up of the bumph as a brutal act ... ”", "31. On 7 November 2004, A.T. wrote the following in his article published in the same newspaper:", "“ ... No one mentions the fact that the intention had been to publish the treasonous document [ clandestinely ]. They pay scant attention to the treachery, but on the other hand they consider that in tearing up the report F.Y. had committed a brutal act ... just because they sup from the same dog- bowl as İbrahim Kaboğlu and Baskın Oran. ”", "32. On 31 December 2004 the applicants brought an action for damages against A.T. and the company owning the newspaper having published the impugned articles.", "33. By judgment of 25 July 2006, the Ankara Regional Court dismissed the applicants ’ claim on the grounds that the statements in the impugned articles fell within the ambit of the provisions protecting their author ’ s freedom of expression. The court held that insofar as the report in issue contained virulent criticism of the governments of the Republic and dismissed those who objected to their ideas as paranoiacs, the applicants should also tolerate the same kind of criticism, or indeed even more virulent criticism, short of actual violence.", "34. The applicants appealed on points of law. They complained that the Regional Court had failed to protect them in the exercise of their freedom of expression and had considered that the insults against them had fallen within the ambit of the legal provisions protecting freedom of expression.", "35. By judgment of 12 November 2007 the Court of Cassation upheld the impugned judgment on the grounds that it had complied with the requisite procedure and law and that it had not been based on any erroneous assessment of the evidence. In a dissenting opinion, one member of the Court of Cassation considered that A.T. ’ s articles had overstepped the bounds of the right to criticism as protected under the right to freedom of expression, on the grounds that those articles had comprised insulting expressions explicitly targeting the applicants. The judgment was served on counsel for the applicants on 2 January 2008.", "C. Applications nos. 50766/10 and 50782/10: proceedings relating to S.K. ’ s article", "36. In an article published in the daily newspaper Akşam on 27 October 2004, S.K. wrote the following on the subject of the applicants ’ report :", "“ ... After the European Union ’ s ‘ never make any progress ’ report of 6 October 2004, it was expected, as a ‘ conditioned reflex ’, that those in the pay of the wild west ( vahşi batının beslemeleri ), almost all of whom are former ... communists, would follow their masters, and even surpass them. The comparison is perfectly apt. Like little dogs rolling over and wagging their tails when their food is served in their dog- bowls or when [they are promised] a bone, they begin their subtle attacks ... Those who pose as the eyes, ears and spleen of the Trojan horse infiltrating our country, the fools and idiots posing as smart alecs ...; in this report on minorities prepared by this insolent, perfidious and pathetic minority, the losers, who would never have dared commit this type of treason before, are clearly targeting the indivisible integrity of the State and the nation ...; some losers who, their whole lives long, have never got rid of their paranoia about Turks ... designate as ‘ Sèvres paranoia ’ the watchful and persevering attitude of those who represent the heart, head and intelligence of our nation against the new Sèvres dictates and are attempting to insult them, driven on by their wilfulness; their shared characteristic is apostasy ...; someone has said ‘ he who is not a communist at the age of twenty is an ass, and he who is not a capitalist at the age of thirty is the ass ’ s son ’. Being a liboş [ a derogatory word for liberals in Turkey ] under the auspices of the [ European Union] suits these ex-communist apostates perfectly.", "Just look at this assailant ( baskıncı [2] eleman ) who drew up this scandalous report on minorities on behalf of the Consultative Council on Human Rights ... This is the treacherous dagger which this man, ... disguised as a scientist, and the minority which he is using, has perfidiously stabbed into the heart of the Republic of Turkey and into the unity and peace of our nation...!", "And there is another man whose life depends on the fact of eating and swallowing; the more dogfood he eats, the more applause he attracts ... A miserable spy and apostate. Are his windows flung open not to the world, but to his stomach? Alongside a Statesman, the miniature poodle aspires to the status of a large poodle. Now he constantly growls. Perhaps he thinks [that if he continues to ] bark ever more loudly, his western masters will one day make a man of him. Oh the poor little chap! God has made him a dogfood gobbler. Calm down a little, [ you might scratch ] the Rolex on your front paw. Carry on anyway with your bird - brain dividing, dismantling and growling. In any case we are not forced to listen to you. The most you will manage to do is tug at the backs of a few trouser legs. We have seen lots of crawlers like you, you know, and how many have we stoned? If someone like you, rootless and without a pedigree, can [ bark ] at people, how unfortunate for you! Oh crack-voiced, short-breathed bootlicker! Go on then! Waste your saliva! What a pity [you are allowed to] talk, what a shame [you are listened to and people are allowed] to listen to you ... ”", "37. On 7 January 2005 the applicants brought an action for damages for insult and defamation against the author of that article and the company owning the newspaper which had published it.", "38. By judgment of 8 June 2006 the Ankara Regional Court upheld the applicants ’ claim. Considering that the impugned article overstepped the bounds of admissible criticism and infringed the dignity of the applicants, the court ordered the defendants to pay the latter damages in respect of the non-pecuniary damage sustained.", "39. By judgment of 31 January 2008 the Court of Cassation (4 th Civil Chamber ) quashed the first-instance judgment. It found that the first section of the impugned article had consisted of severe criticism of the attitude of Turkish intellectuals to national issues, that the second section on Baskın Oran had amounted to a statement of a critical opinion on the report in question, and that the expressions used in the last section had not concerned the applicants. The Court of Cassation consequently considered that the article in question had comprised not any gratuitous attacks on the applicants but a series of acerbic and virulent critiques of their report, and that it had not overstepped the bounds of admissible criticism. In a separate dissenting opinion, one member of the Court of Cassation expressed the view that the first- instance judgment should be confirmed.", "40. On 20 November 2008 the Ankara Regional Court decided not to follow the Court of Cassation ’ s judgment and to uphold the judgment which it had delivered on 8 June 2006.", "41. On 3 June 2009 the Plenary Assembly of the Civil Chambers of the Court of Cassation, upholding the arguments put forward in the cassation judgment of 31 January 2008, set aside the Ankara Regional Court ’ s judgment.", "42. By judgment of 3 December 2009 the Ankara Regional Court, bound by the judgment of the Plenary Assembly of the Civil Chambers, dismissed the action brought by the applicants. That judgment was served on counsel for the applicants on 28 January 2010." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Additional section 5 of Law no. 4643", "43. Additional section 5 of Law no. 4643 of 12 April 2001 provides :", "“ The Consultative Council on Human Rights, attached to a State Minister appointed by the Prime Minister, is set up in order to ensure dialogue between the State authorities and the relevant civil society organisations and to act as an advisory body on national and international issues relating to human rights. The Consultative Council is composed of representatives of the ministries, public institutions and professional associations concerned by human rights, representatives of civil society organisations working in the human rights field and persons having worked and published in this sphere. The chairman of the Consultative Council shall be elected from among its members. The secretarial services of the Consultative Council shall be provided by the human rights directorate. The Consultative Council shall be financed from the budget of the Private Office of the Prime Minister. ”", "B. Judgment delivered by the Constitutional Court on 18 April 2018", "44. The Constitutional Court delivered a judgment on an individual appeal lodged by the applicant Baskın Oran (appeal no. 2014/4645) concerning the criminal proceedings brought following that applicant ’ s complaint about the death threats which he had received after the publication of the report on minority and cultural rights. After those criminal proceedings, which had lasted some five years and nine months, the criminal courts had sentenced the instigator of the threats, opting for the minimum penalty allowed for the offence in question, to one year and eight months ’ imprisonment, before staying the delivery of that judgment. Since the criminal proceedings in question had closed on 5 March 2014, that is to say after the entry into force of the law on individual appeal before the Constitutional Court on 23 September 2012 ( for the relevant provisions of Law no. 6216 introducing individual appeal before the Constitutional Court, see Hasan Uzun v. Turkey ( dec. ), no. 10755/13, § 25, 30 April 2013), the applicant had had the option of lodging an individual appeal with that court in order to put forward his complaints concerning the said criminal proceedings. In his individual appeal the applicant alleged a violation of his rights to life and freedom of expression, arguing that the criminal proceedings in question had not been effective owing to their excessive length and the failure to actually penalise the instigator of the threats.", "45. By judgment of 18 April 2018, the Constitutional Court found a violation of the applicant ’ s rights to life and to freedom of expression on the grounds that the judicial authorities ’ reaction to the death threats issued against the applicant had had no deterrent force. As regards the applicant ’ s freedom of expression, the Constitutional Court pointed out that the positive obligations in the sphere of freedom of expression required States, in particular, to establish an effective mechanism for the protection of writers and journalists in order to create an environment conducive to the involvement in public debate of all those concerned, so that they could voice their opinions and ideas without fear. The Constitutional Court further noted that the applicant had been working on minority rights for much of his career and that he was continuing to work on similar matters. It noted that as regards the judicial authorities ’ ineffective investigations into the death threats issued against the applicant on account of his work on minority rights, he had not benefited from an environment conducive to the safe pursuit of that work. Considering that the ineffective judicial investigations and proceedings had had a chilling effect on the applicant ’ s exercise of his freedom of expression, the Constitutional Court found that in his case the authorities had failed in their positive obligations in relation to freedom of expression.", "46. In the section of its judgment on the relevant international law, the Constitutional Court referred, inter alia, to the judgments in the European Court cases of Özgür Gündem v. Turkey (no. 23144/93, ECHR 2000 ‑ III) and Dink v. Turkey (nos. 2668/07 and 4 others, 14 September 2010) in order to clarify the principles relating to the State ’ s positive obligations in terms of freedom of expression.", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "47. Given the similarity of the three applications in factual and legal terms, the Court decided to join them in accordance with Rule 42 § 1 of the Rules of Court.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "48. Relying on Article 8 of the Convention, the applicants complained that they had been unable to obtain compensation for the non-pecuniary damage sustained on account of the press articles which they claimed had comprised insults, threats and hate speech directed against them, infringed their dignity and been part of a “ lynching campaign” geared to stirring up public feeling against them.", "49. Further relying on Article 2 of the Convention, the applicants alleged, in the framework of application no. 1759/08, that the authorities had failed to take the requisite action to protect them from the lynching campaign against them which had endangered their lives. They explained that it was customary practice in Turkey to intimidate, to frighten, to endanger, indeed to eliminate, persons who had voiced opinions different from that of the majority in society, singling them our as targets, and that various academics and journalists murdered in recent years, such as Fırat Dink, provided concrete examples of that practice. They therefore accused the national authorities of having left them without protection vis-à-vis the hate speech and calls to violence against them set out in the press articles at issue, and of thus having helped encourage the death threats which they had received.", "50. The Court notes that, as regards the applicants ’ allegation concerning the authorities ’ failure to protect them against the death threats and violent reactions, the applicants have not provided evidence of any possible concrete acts of violence perpetrated against them in the wake of the impugned articles. It reiterates, in this regard, that treatment which does not reach a level of severity sufficient to bring it within the ambit of Articles 2 and 3 may nonetheless breach the private-life aspect of Article 8, if the effects on the applicant ’ s physical and moral integrity are sufficiently adverse ( see Király and Dömötör v. Hungary, no. 10851/13, § 42, 17 January 2017). It also notes that the only remedy which the applicants seem to have used in the present case was the civil action for damages which they lodged in respect of the impugned articles.", "51. The Court considers that with their complaints under Articles 2 and 8 of the Convention, the applicants are complaining primarily of the domestic authorities ’ failure to protect their physical and moral integrity against the infringement constituted by those articles. It reiterates that, being the master of the characterisation to be given in law to the facts of a case, the Court is not bound by the characterisation given by the parties. In the present case, having regard to the wording of the applicants ’ complaints and the nature of the proceeding which they had brought against the outcome of the latter, the Court considers that the facts in issue should be assessed solely under Article 8 of the Convention, the relevant part of which provides:", "“ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. ”", "A. Admissibility", "52. The Government raised an inadmissibility objection of failure to exhaust domestic remedies. In that regard, they submitted that the applicants had not used their right to publish a reply correcting the articles, which procedure the Government claimed should, in principle, be considered as an effective remedy in cases of allegations of unlawful interference with the right to protection of reputation. The Government referred, in that connection, to a relevant Constitutional Court decision.", "53. The applicants replied that the right to publish a reply did not constitute an effective remedy for them inasmuch as the impugned articles had comprised insults, offensive remarks and threats against them, and not mere erroneous information to be corrected.", "54. The Court reiterates that an applicant must have made normal use of domestic remedies which are likely to be effective and sufficient and that, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required ( see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009). It also reiterates that according to domestic law as interpreted and implemented by the Constitutional Court, the effective and appropriate remedy in domestic law for complaints of infringements of the right to protection of reputation is a civil action for damages before the civil courts ( see Yakup Saygılı v. Turkey ( dec. ), no. 42914/16, § 39, 11 July 2017). The Court further observes that the right-of-reply procedure laid down in domestic law for cases of publication of information contrary to the truth or infringing the honour and dignity of persons is an exceptional emergency procedure ( see Eker v. Turkey, no. 24016/05, §§ 15 and 29, 24 October 2017).", "55. In the instant case, the Court notes that the applicants lodged actions for damages with the civil courts alleging interferences with their private lives on account of the insulting and threatening content of the impugned articles. It further notes that the question which the applicants brought before the domestic courts was not whether factual errors in the impugned articles could be quickly corrected, but rather whether the publication of the articles overstepped the bounds of the freedom of the press and infringed the applicants ’ private lives. Finally, it observes that the action for damages brought by the applicants enabled them to seek a finding of the breaches committed by the aforementioned articles of their right to respect for private life and to obtain appropriate compensation.", "56. The Court considers therefore that in the circumstances of the present case, the remedy which would have provided them with optimum redress was indeed the civil action for damages. It follows that the Government ’ s objection must be rejected.", "57. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Parties ’ submissions", "(a) The applicants", "58. The applicants submitted that their report, which had focused on such issues as minority status, citizenship, identity, equality and the prevention of discrimination, had not been such as to revive the trauma of Turkey ’ s geographical break-up.", "59. They considered that the State authorities had failed to take all the requisite precautions to protect them against the insulting and threatening writings of ultranationalist authors, who, they claimed, had been encouraged by the criticism levelled at them by a number of political leaders and officials. They added that the impugned articles, which they submitted had contained serious insults and threats rather than mere critical opinions, could not be deemed to have remained within the bounds of freedom of expression.", "(b) The Government", "60. The Government submitted that, having regard to the duties discharged by the applicants in the Consultative Council on Human Rights – a public body – and in view of that body ’ s mission, which was to guide and influence governmental policies in the human rights field, the applicants had held an atypical status akin to that of politicians, and that they could not therefore be considered as ordinary civil servants. Consequently, having regard to the applicants ’ duties within an official body attached to the Prime Minister ’ s office, the Government considered that the applicants should have been more open to criticism. Furthermore, they argued that the criticism prompted by the report prepared by the applicants in the framework of their activities in the Consultative Council had been levelled not at the applicants but at their positions within the Consultative Council – a governmental body operating under the supervision of the Prime Minister ’ s office.", "61. The Government further argued that the “revolutionary” content of the report on such controversial topics as citizenship, identity, mother tongue and equality, which had been perceived as the expression of the applicants ’ ideological stance, combined with alleged irregularities in the adoption of the text, had drawn public attention. They therefore considered that the impugned articles had contributed to a public -interest debate.", "62. Moreover, the Government submitted that the criticisms and comments set out in the impugned articles had amounted to value judgments and that they had not been devoid of any factual basis. They explained that the proposals set out in the report concerning minority status, the definition of citizenship, the concepts of supra - and infra- identity and the issue of the official State language had provided the factual basis for the impugned articles. Furthermore, as regards the factual basis of the criticism levelled at the applicants, the Government referred to statements by certain political leaders to the effect that they had not requested such a report and that irregularities had been committed during the adoption of the text, adding that the applicants ’ ideological stance was a matter of public knowledge. The authors of the impugned articles had resorted to some degree of exaggeration, which was permissible for journalists under the Court ’ s case-law.", "63. The Government further considered that the unfavourable reactions to the applicants had not been caused by the impugned articles but had derived inevitably from the trauma caused by the “dismantling of Turkey” in the recent past. They argued that the authorities had provided the applicants with adequate protection.", "64. Finally, the Government considered that the domestic courts had carried out a balancing exercise compatible with the Court ’ s case-law, taking into account the contribution of the impugned articles to a public - interest debate, the background to the publication of the articles, the applicants ’ positions within the Consultative Council, the radical change of paradigm in public policies adumbrated by the proposals in the report, and the attack which the applicants had allegedly launched in their report against their ideological adversaries by presenting them as paranoid.", "2. The Court ’ s assessment", "( a) General principles", "65. The Court first of all reiterates that the concept of private life is a broad notion which extends to aspects relating to personal identity, such as a person ’ s name, picture or physical and moral integrity (see Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI). The case-law of the Court accepts that a person ’ s right to protection of reputation is covered by Article 8 of the Convention as part of the right to respect for private life ( see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015; Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016; and Medžlis Islamske Zajednice Brčko and Others v. Bosnia ‑ Herzegovina [GC], no. 17224/11, § 76, ECHR 2017). The Court has already ruled that a person ’ s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her private life ( see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007, and Petrie v. Italy, no. 25322/12, § 39, 18 May 2017). The same considerations apply to a person ’ s honour ( see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007, and A. v. Norway, no. 28070/06, § 64, 9 April 2009). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life ( see Axel Springer AG, cited above, § 83; Delfi AS, cited above, § 137; Bédat, cited above, § 72; and Medžlis Islamske Zajednice Brčko and Others, cited above, § 76).", "66. The Court further reiterates that the freedom of the press fulfils a fundamental and essential function in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice. Thus the national authorities ’ margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” ( see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III; Thoma v. Luxembourg, no. 38432/97, § 45, ECHR 2001-III; and Amorim Giestas and Jesus Costa Bordalo v. Portugal, no. 37840/10, § 25, 3 April 2014). Nevertheless, journalists must act in good faith in order to provide “ accurate and reliable ” information in accordance with the ethics of journalism ( see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I; Radio France and Others v. France, no. 53984/00, § 37, ECHR 2004-II; and July and Sarl Libération v. France, no. 20893/03, § 69, ECHR 2008). That having been said, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation ( see Fressoz and Roire, cited above, § 45, and Mamère v. France, no. 12697/03, § 25, ECHR 2006-XIII).", "67. The Court nevertheless acknowledges that distorting the truth, in bad faith, can sometimes overstep the bounds of acceptable criticism : a correct statement can be qualified by additional remarks, by value judgments, by suppositions or even insinuations, which are liable to create a false image in the public mind ( see, for example, Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 45, 27 May 2004). Thus the task of imparting information necessarily includes duties and responsibilities, as well as limits which the press must impose on itself spontaneously. That is especially so where a media report attributes very serious actions to named persons, as such “ allegations ” comprise the risk of exposing the latter to public contempt ( see Falakaoğlu and Saygılı v. Turkey, no. 11461/03, § 27, 19 December 2006).", "68. The Court also reiterates that in the judgments in the cases of Lingens v. Austria (8 July 1986, § 46, Series A no. 10) and Oberschlick v. Austria (( no. 1 ), 23 May 1991, § 63, Series A no. 204), inter alia, it drew a distinction between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof, and in that case a requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention ( see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997-I). However, in the case of a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement : otherwise, that value judgment may itself be excessive (see De Haes and Gijsels, cited above, § 47; Oberschlick v. Austria (no. 2), 1 July 1997, § 33, Reports 1997-IV; Brasilier v. France, no. 71343/01, § 36, 11 April 2006; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007 ‑ IV). In order to distinguish between a factual allegation and a value judgment it is necessary to take account of the circumstances of the case and the general tone of the remarks ( see Brasilier, cited above, § 37), bearing in mind that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact ( see Paturel v. France, no. 54968/00, § 37, 22 December 2005).", "69. The Court further observes that when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not vary depending on whether it was lodged under Article 8 by the person who was the subject of the impugned press article or under Article 10 by the author of the same article, because in principle the rights under these Articles deserve equal respect ( see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania ( dec. ), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § ..., ECHR 2015 ( extracts ) § 91). Accordingly, the margin of appreciation should in theory be the same in both cases ( see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012; Axel Springer AG, cited above, § 87; and Couderc and Hachette Filipacchi Associés, cited above, § 91).", "70. Moreover, the Court reiterates that in cases such as the present one, it is incumbent on it to determine whether the State, in the framework of its positive obligations under Article 8 of the Convention, struck a fair balance between the applicant ’ s right to respect for his private life and the opposing party ’ s right to freedom of expression as secured under Article 10 ( see Petrie v. Italy, cited above, § 40). In several of its judgments the Court has summarised the relevant criteria for balancing the right to respect for private life and the right to freedom of expression as follows : contribution to a public- interest debate, whether the person concerned is well-known, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, as well as, if appropriate, the circumstances of the case ( see Von Hannover (no. 2) [GC], cited above, §§ 108-113, and Axel Springer AG, cited above, §§ 89-95; see also Couderc and Hachette Filipacchi Associés, cited above, § 93). If the two rights in question have been balanced in a manner consistent with the criteria established by the Court ’ s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts ( see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011).", "71. Finally, noting that in the present case the applicants allegedly suffered infringements of their right to respect for their private live on account of the exercise of their freedom of expression, the Court reiterates that the genuine, effective exercise of this freedom does not depend merely on the State ’ s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons ( see Palomo Sánchez and Others, cited above, § 59, and Appleby and Others v. the United Kingdom, no. 44306/98, § 39, ECHR 2003 ‑ VI).", "(b) Application of those principles to the present case", "72. The Court notes that the present applications concern press articles whose content the applicants claimed had interfered with their private lives, and had, in particular, damaged their reputations. As regards the right to protection of reputation, it reiterates that that right, as an aspect of private life, falls within the scope of Article 8 of the Convention ( see paragraph 65 above ). The Court considers that in the present case, having regard to the virulent criticisms levelled against the applicants in the impugned articles, the infringement of their reputations reaches the requisite severity threshold for the application of Article 8 of the Convention.", "73. The Court then notes that the applicants complained not about any action taken by the State but rather about the latter ’ s failure to protect their private lives against the attacks launched against them in the impugned articles. In the circumstances of the case, therefore, it is incumbent on the Court to seek to establish whether the domestic courts failed to protect the applicants against the alleged infringements. To that end the Court will proceed to assess the impugned circumstances of the case in the light of the relevant criteria emerging from its case-law ( see paragraph 70 above ).", "74. The Court observes from the outset that the applicants are university professors specialising in human rights and that at the material time they had been appointed as members of the Consultative Council on Human Rights, a public body responsible for advising the Government on human rights issues ( see paragraph 6 above ). It considers that having regard to the applicants ’ status and duties within the Consultative Council, which were akin to those of experts appointed by the public authorities to examine specific issues, and given the advisory functions of the Consultative Council, they could not be compared to politicians who had to display a greater degree of tolerance ( see Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 52, ECHR 1999 ‑ VIII). Therefore, insofar as the criticism levelled at the applicants had been based on the work which they had conducted in the framework of their duties within the Consultative Council, it cannot be accepted that they should have displayed a greater degree of tolerance of such criticism.", "75. The Court further observes that the impugned press articles set out their authors ’ reactions to the report on minority and cultural rights adopted by the Consultative Council. That report, whose content had given rise to heated public debate, extensively covered by the media, had proposed solutions to the problems encountered in the field of minority and cultural rights in Turkey, broadly advocating a transition from the idea of a homogeneous and monocultural nation, which had been the policy pursued by previous governments, towards a conception of a multi-identity, multicultural, democratic, liberal and pluralist society, which was the model adopted by contemporary European democracies ( see paragraphs 8 and 9 above ). The articles in question, which had concerned that report, had thus been dealing with topical public-interest subjects.", "76. Moving on to a meticulous assessment of the content of the impugned articles, the Court observes that they comprised harsh criticism expressed sometimes directly and incisively and sometimes ironically, with allusions not only to the report in question but also to its authors. It notes in that regard that the articles seem to present the applicants as the main authors of the report, probably, first of all, on account of their respective roles as Chairman of the Consultative Council and Chairman of the working group having drafted the report ( see paragraph 7 above ) and secondly, because of their opinions on such matters, which had been known to the general public and which, according to the Government, had been reflected in the report ( see paragraph 61 above ).", "77. The Court observes that the impugned articles, as a whole, questioned the applicants ’ bona fide and integrity and designated them as intellectuals insensitive to the interest of the Turkish nation, guided and bribed by foreign powers. In that connection, they accused them, by name, of being traitors ( see paragraphs 26, 29 and 31 above ), of being pro- Sèvres ( see paragraphs 26, 28 and 30 above ) – that is to say of advocating the dismantling of Turkey ( see paragraph 8 above ) – of displaying bad faith ( see paragraphs 28 and 29 above ) and of “ supping from ... [a] dog- bowl ” ( see paragraph 31 above ). Moreover, they described the members of the Consultative Council and, in particular, the main instigators of the report – probably including the applicants – though this time without giving names, using words such as “traitor” ( see paragraphs 15, 28, 30 and 36 above ), “ subversive persons [who deserve the] death penalty ” ( see paragraph 27 above ), “lickspittles” ( see paragraphs 29 and 36 above ), “deviousness” ( see paragraph 30 above ), “in the pay of the wild west ” ( see paragraph 36 above ), “little dogs” ( see paragraph 36 above ), “ Trojan horse infiltrating our country” ( see paragraph 36 above ), “losers” ( see paragraph 36 above ), “apostates” ( see paragraph 36 above ), “ spy” ( see paragraph 36 above ), “poodle” ( see paragraph 36 above ) and “rootless and without a pedigree” ( see paragraph 35 above ).", "78. The Court considers that those articles, having regard to their content as described above, had all the hallmarks of value judgments. It notes that the harsh criticism levelled by the impugned articles at the applicants echoed the content of the report in question, which contrasted with the legislation in force and existing practice in terms of minority rights protection in Turkey at the material time, on account, in particular, of the ideas and proposals put forward in the text, which involved a sea- change in mentalities in that sphere.", "79. The Court therefore notes that the articles in question were indisputably linked to a public- interest debate triggered by the aforementioned report, concerning the place and the rights of minorities in the structure of society. It reiterates in that regard that the role of “ public watchdog ” played by the press authorises journalists, in the context of a public debate, to have recourse to a certain degree of exaggeration or provocation, or indeed bluntness. Whilst an individual taking part in a public debate on a matter of general concern is required not to overstep certain limits as regards – in particular – respect for the reputation and rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements ( see Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008). Noting further that some of the impugned articles – particularly that written by S.K. and published in the Akşam daily newspaper ( see paragraph 36 above ) – had recourse to satire, the Court reiterates that satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate ( see Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 33, 25 January 2007). The Court considers that satire contributes to public debate.", "80. As regards the offensive nature of certain passages of the impugned articles, the Court reiterates that offensive language may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult; but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes ( see Tuşalp v. Turkey, nos. 32131/08 and 41617/08, § 48, 21 February 2012.", "81. In the instant case, the Court considers that the impugned articles used acerbic terms to express the authors ’ reaction to and indignation about the Consultative Council ’ s report and to discredit its drafters, the applicants included, in the public mind. The Court takes the view that the provocative, aggressive and somewhat offensive style and content of the articles in question cannot, by and large, be considered as lacking an adequate factual basis and as being wantonly insulting in the context of the heated public debate on a report dealing with issues of vital importance to Turkish society.", "82. The Court now comes to the applicants ’ allegation that the impugned articles also comprise passages which they describe as calls to violence and hate speech against them. It considers that, in assessing this allegation, it must draw inspiration from the principles which it formulated in its previous case-law under Article 10 of the Convention concerning oral or written statements alleged to have stirred up violence, hatred and intolerance ( see Király and Dömötör, cited above, § 73). The key factors in the Court ’ s assessment were whether the statements had been made against a tense political or social background ( see Zana v. Turkey, 25 November 1997, §§ 57-60, Case Reports 1997 - VII; Soulas and Others v. France, no. 15948/03, §§ 38-39, 10 July 2008; and Balsytė-Lideikienė v. Lithuania, no. 72596/01, § 78, 4 November 2008); the question whether the statements, being correctly interpreted and assessed in their immediate or broader context, can be seen as a direct or indirect call to violence or as condoning violence, hatred or intolerance ( see, among other authorities, Özgür Gündem v. Turkey (no. 23144/93, ECHR 2000 ‑ III) § 64; Féret v. Belgium, no. 15615/07, §§ 69-73 and 78, 16 July 2009; and Fáber v. Hungary, no. 40721/08, §§ 52 and 56-58, 24 July 2012); and the manner in which the statements were made, and their capacity – direct or indirect – to lead to harmful consequences ( see Karataş v. Turkey ([GC], no. 23168/94, §§ 51-52, ECHR 1999-IV, and Vejdeland and Others v. Sweden, no. 1813/07, § 56, 9 February 2012). In all of the above cases, it was the interplay between the various factors rather than any one of them taken in isolation that determined the outcome of the case. The Court ’ s approach to that type of case can thus be described as highly context-specific ( see Perinçek v. Switzerland [GC], no. 27510/08, § 208, ECHR 2015 ( extracts )).", "83. In the instant case, therefore, the Court will examine very closely, in the light of the aforementioned criteria, the words used in the impugned articles, the background to their publication and their capacity to lead to harmful consequences. In that connection, it first of all notes that the articles had been published against the background of a heated public debate on the proposals put forward by the aforementioned report concerning effective protection for minority rights in Turkey. The Court acknowledges that this is a difficult subject liable to raise concerns in nationalist circles as to the unitary structure of the Turkish nation and State. The press statements and articles criticising the applicants were therefore published in the context of a reactionary campaign conducted by the said nationalist circles against the report and its main authors, that is to say the applicants. The latter had in fact exercised their freedom of expression by drafting that report, setting out their point of view on the status and place of minorities in a democratic society, without, however, using derogatory or insulting language in connection with those holding different views on the subject. The Court considered in that regard that in order to gauge the level of tension prevailing at that time, it is sufficient to recall, firstly, the incident at the press conference organised by the applicant İbrahim Kaboğlu, when F.Y., a member of a nationalist-leaning trade union, tore up a copy of the report laid in front of Mr Kaboğlu, thus breaking up the conference ( see paragraph 11 above ), and secondly, the death threats received by the applicants, which forced the authorities to grant them special police protection ( see paragraph 14 above ) and which, in the absence of an effective judicial reaction, led the Constitutional Court to find a violation of the applicant Baskın Oran ’ s right to life and to freedom of expression ( see paragraph 45 above ).", "84. As regards the words used in the impugned articles, the Court considers that certain passages of the articles are ambiguous in that they would seem to be stereotypical phrases with a nationalist ideological wording, but could also be read as condoning violence, at least by some readers with insufficient knowledge of the jargon in question who are liable to take the words in question literally. In the Court ’ s view, this applies, inter alia, to the following passages: “if [the country ’ s Turkish majority] begins to growl, shout and roar, the traitors will find no hiding or breathing place ...” ( see paragraph 15 above); “... I would warn some of [those who are going too far] not to play with fire” ( see paragraph 15 above ), and “ this report is a real piece of treachery, and those who wrote it should have it ripped to shreds over their heads. Those who want to see the Turkish nation as a minority in this country will have us to contend with ” (see paragraph 20 above ).", "85. Conversely, the Court considers that some other passages are clearly such as to call directly or indirectly to violence or to condone violence. For example, it would place the following passages in that category : “ I swear that the price of the soil is blood, and if need be blood will be shed ” ( see paragraph 21 above); “in my view, if those individuals had been beaten up, people would have been relieved. The Sèvres apologists deserved a good thrashing... ” ( see paragraph 30 above ). The Court takes the view that those phrases, taken in conjunction with the stigmatising expressions used throughout the impugned articles, such as “ traitor ”, “ subversive persons [who deserve the] death penalty ”, “ Trojan horse infiltrating our country ” and “ spy ”, stirred up hatred for the persons targeted, that is to say the authors of the report, including the applicants, and exposed them to a risk of physical violence ( see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV), especially since the statements had been published in national daily newspapers.", "86. The Court considers that in the present case the risk should have been borne in mind that such articles might incite people to commit acts of violence against the applicants. It reiterates in this connection, as the applicants pointed out ( see paragraph 45 above ), that a Turkish journalist, Fırat Dink, was murdered by an ultranationalist following a stigmatisation campaign accompanied by death threats against Dink because of his unorthodox opinions on an issue which is considered sensitive in Turkish society ( see Dink v. Turkey (nos. 2668/07 and 4 others, 14 September 2010) §§ 8-17 and 107).", "87. The Court considers therefore that the verbal attacks and physical threats made in the impugned articles in this context against the applicants were geared to repressing their intellectual personality, inspiring in them feelings of fear, anguish and vulnerability capable of humiliating and debasing them and of breaking their will to defend their ideas ( see, mutatis mutandis, Ülke v. Turkey, no. 39437/98, § 62, 24 January 2006).", "88. Finally, the Court will now examine the domestic courts ’ judgments dismissing all the actions for damages brought by the applicants against the impugned articles. It observes that those courts, without ever explicitly characterising the articles – factual statements, value judgments or hate speech/incitement to violence – concluded that those articles had not directly targeted the applicants or comprised wanton attacks against them, that the applicants should tolerate the harsh criticism levelled at them on account, firstly, of their status, and secondly, of the criticism that they themselves had levelled in the report at their ideological adversaries, and that the articles fell within the scope of the legal provisions protecting their authors ’ freedom of expression ( see paragraphs 17, 23, 33 and 39 above ). The Court also notes that apart from the Ankara Regional Court, the domestic courts paid little or no attention to the threatening and violent expressions used in the impugned articles. In its 25 July 2006 judgment, the Ankara Regional Court held that the phrase “ the price of the soil is blood, and if need be blood will be shed ” was a popular saying and was not a threat to the applicants, and that the statement “those who want to see the Turkish nation as a minority in this country will have us to contend with” was only a criticism of the opinions expressed in the report ( see paragraph 23 above ). The Court cannot subscribe to those viewpoints for the above- mentioned reasons.", "89. The Court considers that the conclusions adopted by the domestic courts are not such as to enable it to establish that they conducted an adequate balancing exercise between the applicants ’ right to respect for their private lives and the freedom of the press, pursuant to the aforementioned relevant criteria ( see paragraph 70 above ). Indeed, it holds that the judgments delivered by the domestic courts did not provide a satisfactory reply to the question whether freedom of the press could, in the circumstances of the instant case, justify the infringement of the applicants right to respect for their private lives by passages of articles liable to amount to hate speech and a call to violence, and therefore likely to expose the applicants to public condemnation ( see Mater v. Turkey, no. 54997/08, § 55, 16 July 2013).", "90. Having regard to the foregoing considerations, the Court finds that in the present case the domestic courts failed to strike a fair balance between the applicants ’ right to respect for their private lives and the freedom of the press. Therefore, there has been a violation of Article 8 of the Convention.", "III. ALLEGED VIOLATIONS OF ARTICLES 10 AND 14 OF THE CONVENTION", "91. Relying on Article 10 of the Convention, the applicants alleged that the State authorities had failed in their positive obligation to safeguard the exercise of their right to freedom of expression against press articles geared to intimidating them and stifling the debate initiated by the report on minority rights.", "92. Also relying on Article 14 of the Convention, the applicants alleged, in the framework of applications nos. 50766/10 and 50782/10, that they had suffered discrimination on the grounds of their opinions. In that regard, they submitted that the authorities had failed to protect them against infringements by third persons of their right to freedom of expression in response to the opinions which they had expressed in their report on minority rights.", "93. Having regard to the violation found in respect of Article 8 of the Convention ( see paragraph 90 above ), the Court considers that it has considered the main legal issue arising in the present case. In view of all the facts of the case and the parties ’ pleadings, it holds that it is no longer necessary to examine separately the admissibility or the merits of the complaints under Articles 10 and 14 of the Convention ( for a similar approach, see Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "94. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\"", "A. Damage", "95. The applicants claimed 40, 000 euros (EUR) in respect of non- pecuniary damage.", "96. The Government considered that there was no causal link between the alleged violation and the claims in respect of non- pecuniary damage, which, in their view, were excessive and did not correspond to the awards made by the Court in its case-law.", "97. The Court considers that the applicants should be awarded EUR 1, 500 each in respect of non- pecuniary damage.", "B. Costs and expenses", "98. The applicants also claimed 4,202.60 Turkish Lire (TRY) (EUR 1,088.08) for the costs and expenses incurred before the domestic courts and TRY 64,000 (EUR 16,570.01) in respect of legal fees. They presented in support of their claim in respect of procedural costs for one of the four sets of proceedings a schedule of costs totalling TRY 293. 70 ( EUR 76. 04) and four invoices to a total of TRY 345. 60 ( EUR 89. 48). As regards legal fees, they presented eight fee agreements concluded between each of the two applicants and their lawyer for each of the four sets of proceedings in the domestic courts, to a total of TRY 8, 000 ( EUR 2, 071. 25) in legal fees for each set of proceedings.", "99. The Government stated that the applicants had submitted no proof of payment in support of their claim in respect of costs and expenses.", "100. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 4,000 covering costs under all heads, and therefore awards it jointly to the applicants.", "C. Default interest", "101. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The first applicant was born in 1996 and lives in Kaunas. The second applicant was born in 1995 and lives in Panevėžys.", "7. At the time that the application was lodged with the Court, the first applicant was a secondary-school student at the Kaunas School of Applied Arts. He graduated from that school in June 2017. He is an openly gay man in a same-sex relationship with the second applicant.", "At the time of the lodging of the application with the Court, the second applicant was a theology student at the Vytautas Magnus University in Kaunas. In August 2015 he discontinued his theology studies and instead began studying psychology at the same university.", "Both applicants are members of the LGL Association.", "8. As can be seen from the material provided and relied on by the Government – namely, copies of public posts on the Facebook pages of the first and the second applicants – on 31 December 2013 the second applicant publicly posted on Facebook that on that day he had “met for the first time” the first applicant. On 26 March 2014 the first applicant publicly posted on his Facebook account, asking: “Do I have any homophobic ‘friends’ who are against LGBT people?” On 17 May 2014 the first applicant publicly posted a summary of the main arguments cited by homophobic commenters (such as the assertion that homosexuality was a disease and a perversion that was against the laws of nature). On 30 May 2014 the first applicant stated in a public post that he had excluded homophobic persons from his Facebook “friends”. On 4 July 2014 the first applicant announced in a public post that he was “in a relationship” with the second applicant.", "1. The photograph in question, and the comments and reaction that followed", "9. On 8 December 2014 the first applicant posted a photograph on his Facebook page depicting a same-sex kiss between him and the second applicant. The picture was accessible not only to his Facebook “friends”, but also to the general public.", "As stated by the applicants in their application to the Court, the intention of posting the picture publicly was to announce the beginning of the applicants’ relationship.", "10. According to the applicants, “the picture went viral online and it received more than 2,400 ‘likes’ and more than 800 comments”. They also submitted that the majority of online comments had been aimed at inciting hatred and violence against LGBT people in general, while numerous comments had directly threatened the applicants personally. The posted comments, of which the Lithuanian law-enforcement authorities were notified afterwards, included the following (the Lithuanian has not been corrected):", "“I’m going to throw up – they should be castrated or burnt; cure yourselves, jackasses – just saying” ( Vimtelsiu, kastruot ar degint tokius, pasigydykit asilai, tik sakau )", "“If you were born perverts and have this disorder, then go and hide in basements and do whatever you like there, faggots. But you will not ruin our beautiful society, which was brought up by my mum and dad, where men kiss women and do not prick their skewers together. I genuinely hope that while you are walking down the street, one of you will get your head smashed in and your brain shaken up” ( Jei jau gimet isgamom ir turit liga, eikit pasislepe rusiuose ka norit ir darykit pyderastai. Bet musu grazios visuomenes, kuria uzaugino mama ir tetis ir vyrai buciuoja moteris, o ne badosi spagom tarpusavyje – nesugadinsit. As labai nuosirdziai tikiuosi kad kazkuriam is jusu einant gatve atitrenks galva kazkas ir atpurtys smegeneles )", "“These faggots fucked up my lunch; if I was allowed to, I would shoot every single one of them” ( Supisti pietai per siuos pyderastus, leistu visus iki vieno issaudyciau )", "“Scum!!!!!! Into the gas chamber with the pair of them” ( Urodai!!!!!! I duju kameras abu )", "“Hey fags – I’ll buy you a free honeymoon trip to the crematorium.” ( Ei pyderai medaus menesio kelione nupirksiu nasaram y krematoriuma )", "“Fucking faggots – burn in hell, garbage” ( Kurwa pydarai blt, dekit pragare siuksles )", "“Into the bonfire with those faggots ...” ( Pydarastus and lauzo ... )", "“For fuck’s sake ... You fucking gays – you should be exterminated FU” ( Eik tu nahui... Gėjai jūs supisti, jus naikint nx )", "“Because you’re faggots, and children can see photos such as these, it’s not only the Jews that Hitler should have burned” ( Tuom kad jus pydarasai esat ir vaikai mato tokias ft issigimeli, galėjo Hitleris netik žydus deginti )", "“Burn the faggots, damn it” ( Sudeginti piderastus ku*va )", "“Fags! Into the bonfire those bitches!” ( Gaidžiai! Ant laužo kurvas! )", "“Fuck you – damn it, kill yourselves, faggots” ( Eik to nahui krw nusizudykit piderai )", "“Satan, please allow me to smash their heads into a wall” ( Šetone prašau duok man leidimą daužys tokiem galvas į sienas )", "“Oh for fuck’s sake – get the fuck out of Lithuania and don’t shame us, you fucking capon; we should put your head under a car and into the noose, you fucking faggot” ( Oj kurwa pidaras pusk is lt nedares gedos wisgaidy tu krw jabanas galwa po masina pakist ir sniurais suka tu kwr jabanas )", "“Kill ...” ( Zudyt ... )", "11. On 9 December 2014 the photograph was reposted by LGBT-friendly Vilnius (an organisation upholding the rights of LGBT people) on its public Facebook page with the following comment:", "“Two young men, who live in Kaunas – Pijus and Mangirdas – today caused a big commotion on Lithuanian Facebook pages, provoking a huge number of ‘likes’, ‘shares’; and hateful comments ... Why? The reason is simple: a kiss. Nothing more, nothing less.", "We asked them what prompted their choice to make this nice photograph public.", "Here is Pijus’s wise reply: ‘We hope that maybe some lonely person, who is being condemned by others, will see this photograph and will no longer feel lonely. Maybe, [standing] on the roof of some house, or on the edge of a window sill or balcony, he or she will move to a safer spot, where nothing will threaten him or her and his or her life will not be just a statistic.’", "Thank you Pijus, and thank you, Mangirdas! Your courage inspires and gives hope.", "Let’s express our support by sharing [the link to the post carrying the photograph] and expressing our opinion.”", "12. On 10 December 2014 the LGL Association shared the photograph on its Facebook page and publicly posted the following:", "“We are happy about the bravery of these young men. Now they need support – more than ever – here on Facebook, and also in their everyday life. So, is it just a kiss? What is the reaction of Lithuanians who avoid being labelled as homophobes? Please pay attention to their opinions expressed in the comments.”", "13. Subsequently, on 12 December 2014, the LGL Association stated in a public post on its Facebook page:", "“Homophobia seeps through not only anonymous comments on Internet portals but also on Facebook, where people post under their true names. We did as we said we would: the meanest comments and their authors have already been denounced to the law-enforcement institutions. Do express your opinion respectfully and responsibly ...", "There are thousands of comments and thousands of people making them. You cannot catch them all, but this is not our purpose. It is more important to show society that [making such hateful comments] is against the law and that hatred cannot be tolerated.”", "14. In that context, the Government also provided a screenshot of the first applicant’s Facebook page from December 2016, where he had written “Two years ago we were causing a commotion” and provided a link to the photograph in question.", "15. In June 2016 LGBT-friendly Vilnius shared on its Facebook page both applicants’ impressions of the Baltic Pride event. The applicants expressed their satisfaction that the parade had gone well and had passed off without incidents such as the throwing of eggs or disruptions staged by “supporters of traditional values”. The two applicants had marched at the forefront of the parade, carrying the Lithuanian flag.", "2. The attempts to have criminal proceedings opened", "16. On 10 December 2014 both applicants lodged a written request with the LGL Association, of which they were both members (see paragraph 7 above), asking it to notify, in its own name, the Prosecutor General’s Office of the hateful comments left under the photograph posted on the first applicant’s Facebook page. They submitted that the comments were not only degrading, detrimental to their dignity and incited discrimination, but also “incited violence and physically violent treatment”. The comments were therefore frightening both to homosexual people in general and to the applicants in particular. The applicants considered that such actions were criminal and merited pre-trial investigation. They reasoned in their request that their wish for the LGL Association, as a non-governmental organisation that defended the public interest, to act on their behalf was based on the applicants’ view that the Lithuanian legal system did not provide any additional procedural guarantees for alleged victims of homophobic hate crimes. The applicants also wrote that they feared retaliation by the authors of the online comments should they personally lodge such a complaint with the prosecutor. They also believed that were they to lodge a personal complaint it would not be treated seriously by law-enforcement officials.", "17. On 12 December 2014 the LGL Association lodged a complaint with the Prosecutor General’s Office, asking that criminal proceedings be initiated regarding thirty-one comments posted on the first applicant’s public Facebook page (see paragraph 10 above). The complaint was lodged on the basis of Article 170 §§ 2 and 3 of the Criminal Code (“Incitement against any national, racial, ethnic, religious or other group of people” – see paragraph 30 below) and Article 19 § 1 (3) of the Law on the Provision of Information to the Public, which prohibits publishing in the media information that incites hatred or violence against a group of people because of their sexual orientation (see paragraph 33 below). It was indicated in the complaint that the comments in question had ridiculed and expressed contempt for individuals of homosexual orientation, and incited discrimination, hatred and violence against them. The LGL Association also added a hard copy of the photograph in question and the comments posted below it.", "18. On 30 December 2014 a prosecutor at the Klaipėda district prosecutor’s office took the decision not to initiate a pre-trial investigation regarding the LGL Association’s complaint. Having examined the thirty-one comments referred to by the LGL Association, the prosecutor noted that of those thirty-one comments, twenty-seven people had written one comment each, and two people had written two comments each. For the prosecutor, this was easy to establish, since the commenters had placed those comments under their personal profiles. The prosecutor held that in order to assess whether the comments in question were of a criminal nature, it was necessary to take into account not only the comments as such, but also the context in which those comments had been written. Given that the comments had been written by different people, each comment had to be assessed individually, and not collectively. It was also essential to establish whether those comments constituted an active attempt ( aktyvus siekis ) to incite other people to disseminate degrading comments and to incite them to commit violence. The prosecutor then considered that active attempts required “systematic action”. In the applicants’ case, however, that criterion had not been met because various individuals had written only one or two comments, which was not enough to be considered as constituting a systematic attempt to incite hatred or violence against people distinguishable by their sexual orientation. From this it followed that the objective element of a crime, as established under Article 170 §§ 2 and 3 of the Criminal Code, was absent. Furthermore, the fact that the “expression of opinion” in question had been non-systematic and isolated meant that there had been no subjective element – namely, that of direct intent – in the crime in question, because by posting the comments the authors thereof had merely been “expressing their opinion”, instead of seeking to incite hatred or violence against individuals who were distinguishable by their sexual orientation. Even though the authors of the comments had reacted “unethically” in respect of the image portrayed in the photograph of the two applicants, such “immoral behaviour” did not constitute an element of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The prosecutor lastly considered that the Supreme Court was of a similar view, in view of the fact that by a ruling of 18 December 2012 in case no. 2K-677/2012 it had acquitted a person who had posted a comment stating that gay people were “perverts” and “belonged in a psychiatric hospital”. In that case the Supreme Court had considered that such a comment, even though unethical, had not actively incited hatred or discrimination against homosexual people (for a more detailed description see paragraphs 39-41 below). The prosecutor thus found that his conclusion was in line with the Supreme Court’s practice in such cases – that is to say, that comments of such a tenor were unethical but not criminal.", "19. On 9 January 2015 the LGL Association lodged an appeal against the prosecutor’s decision with the Klaipėda City District Court. The LGL Association pointed out that the prosecutor had taken the decision not to prosecute on two grounds: firstly, that the actions of the people who had commented on the above-mentioned Facebook post had not been systematic in nature, and secondly, that in respect of cases concerning similar situations (that is to say, comments of a similar nature) the authorities routinely considered that no crime had been committed. The LGL Association noted that in more than 90% of cases in Lithuania, hatred was promoted through the electronic sphere – for example, by the creation of hatred-promoting groups on the Facebook social network or on Internet forums. The LGL Association also relied on Lithuanian court decisions of 2014 at district court (that is to say, first-instance) level which had found that a single comment had been sufficient to find the author thereof guilty of a crime under Article 170 § 2 of the Criminal Code (see paragraphs 50-51 below). The LGL Association thus disputed the prosecutor’s conclusion that such actions had to be systematic in nature in order for criminal liability to arise. The LGL Association argued that the question of whether or not comments could be deemed to be systematic in nature could be taken into account when assessing the gravity of a crime and imposing a punishment on the author of such comments, but it did not amount to a constitutive element of that crime. As to the applicants’ case in particular, it also argued, inter alia, that several terms contained in the comments had promoted the infliction of physical harm and even the killing of members of the group in question (for example, advocating burning and extermination), which had indicated their authors’ “particular attitude” ( ypatingą nusiteikimą ) towards people of non-traditional sexual orientation and had clearly intentionally articulated a call for violence. On this point the LGL Association relied on the Court’s judgment in Vejdeland v. Sweden (no. 1813/07, §§ 54-55, 9 February 2012), in which it had held that Sweden had not breached the rights of the applicants in that case by prosecuting them, even if their statements had not called for violence. Lastly, the LGL Association argued that if the comments under the photograph of the applicants on Facebook had been only “expressing [the authors’] opinion”, it was totally unclear what could be considered to constitute “publicly ridiculing, expressing contempt, urging hatred or inciting discrimination” within the meaning of Article 170 § 2 of the Criminal Code. That norm of criminal law was destined to become a “dead letter”, which the law-enforcement authorities chose not to apply “by giving unjustified preference to freedom of expression, or perhaps owing to other motives which, although not related to law, had an influence on law”.", "20. By a ruling of 23 January 2015, the Klaipėda City District Court dismissed the LGL Association’s appeal. The court shared the prosecutor’s view that the authors of the impugned comments “had chosen improper words” ( pavartojo netinkamus žodžius ) to express their disapproval of homosexual people. Even so, the “mere use of obscenities” ( tik necenzūrinių žodžių pavartojimas ) was not enough to incur criminal liability under Article 170 § 2 of the Criminal Code. The court considered that in making such comments their authors had not been inciting others to discriminate against or hate homosexuals.", "21. The District Court also pointed out that the first applicant’s Facebook page, where the picture of the two men kissing had been posted, had been public, visible and accessible not only to his acquaintances and friends, but also to individuals who were completely unknown to him. Therefore, a person who posted in the public sphere ( viešoje erdvėje ) a picture “of two men kissing” should and must have foreseen that such “eccentric behaviour really did not contribute to the social cohesion of those who had different views or to the promotion of tolerance” ( ekscentriškas elgesys tikrai neprisideda prie visuomenėje kitokias pažiūras turinčių asmenų tarpusavio supratimo bei tolerancijos ugdymo ). The owner of a social network profile on which such an image was posted, by exercising his freedom to express his convictions and freedom to promote tolerance, had to take into account the fact that that freedom was inseparable from the obligation to respect the views and traditions of others. According to the court, “the majority of Lithuanian society very much appreciate[d] traditional family values” ( itin vertina tradicinės šeimos vertybes ). Indeed, that view was enshrined in Article 38 of the Constitution, which read that the family should be the basis of society and the State, and that marriage should be undertaken on the basis of the free mutual consent of a man and a woman. The District Court also referred to a passage from the Constitutional Court’s ruling of 28 September 2011 (see paragraph 34 below), and from that ruling inferred that “the family, as a constitutional value, is a union between a man and a woman”. Lastly, the court stated that criminal proceedings were an ultima ratio measure and that they should therefore be initiated only when serious grounds and all the elements of a crime existed. This was not the situation in the case at hand. In its view, the decision not to prosecute the authors of the comments had been reasonable.", "22. The LGL Association lodged an appeal on 29 January 2015. It pleaded that certain comments had been clearly meant to incite violence, thus directly constituting an objective element of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The LGL Association noted that even milder public comments, although concerning racial or ethnic discrimination, had been considered by the Lithuanian courts to constitute a crime. The LGL Association also argued that the subjective element of a crime, that is to say direct intent, should be assessed only after the identification of the alleged perpetrators and during subsequent criminal proceedings, not at the time that a procedural decision was taken regarding whether to start a pre-trial investigation or not. Responding to the District Court’s statement that the majority of Lithuanian society very much appreciated “traditional family values”, the LGL Association underlined that a criminal offence could not be justified by the views and traditions of either an individual or the majority of society. In that connection the LGL Association also relied on the Court’s case-law, which held that freedom of expression was applicable not only to “information” or “ideas” that were favourably received or regarded as inoffensive or as a matter of indifference, but also those that offended, shocked or disturbed. The LGL Association lastly referred to the Court’s judgment in Balsytė-Lideikienė v. Lithuania (no. 72596/01, § 82, 4 November 2008) to the effect that one right, such as the freedom of speech of the authors of the comments, could be restricted if such a restriction was necessary because that speech was offensive.", "23. By a final ruling of 18 February 2015 the Klaipėda Regional Court dismissed the LGL Association’s appeal, upholding the prosecutor’s and the District Court’s reasoning, including that court’s arguments regarding the applicants’ “eccentric behaviour”. The Regional Court also underlined the fact that the first applicant had posted the photograph in question publicly and had not restricted it to his friends or “like-minded people” ( bendraminčiams ), even though the Facebook social network allowed such a possibility. Such an action could therefore be interpreted as constituting “an attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments”. The court also considered that, in the absence of objective and subjective elements of a crime under Article 170 of the Criminal Code, it would constitute a “waste of time and resources”, or even an unlawful restriction of the rights of others [that is to say, Internet commenters’] to open criminal proceedings. Lastly, criminal proceedings constituted an ultima ratio measure, and not all actions merited them.", "3. Subsequent developments, as presented by the parties", "24. In their application to the Court the applicants stated that the proceedings before the domestic courts had generated a lot of interest in both the local and international media. As a result, they had experienced an increased level of attention and hostility both in the private and in the public spheres. The first applicant had been summoned by his secondary-school headmaster, who had requested him “not to disseminate his ideas”. The second applicant had been summoned by the dean of the university theology faculty, who had requested him to change his course of study because his “lifestyle did not correspond with the faculty’s values”. On several occasions the applicants had been verbally harassed in public places. They had also received a number of threatening private messages in their social network mailboxes. None of those incidents had been reported to the police, because the applicants had been steadily losing their faith in the effectiveness of the law-enforcement system in Lithuania in the light of their unsuccessful attempts to launch a pre-trial investigation in connection with the initial hateful comments.", "25. For their part, the Government referred to a number of educational programmes at the first applicant’s secondary school aimed at raising children’s understanding of such issues as respect, solidarity and non-discrimination. They also could not speculate on the reasons for the second applicant changing his course of study. The Government lastly pointed out that the applicants themselves had never attempted to persuade the domestic authorities to initiate any kind of pre-trial investigation regarding any alleged subsequent discriminatory acts." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution, laws and other legal acts", "26. The Constitution reads:", "Article 21", "“... Human dignity shall be protected by law.", "It shall be prohibited to torture or injure a human being, degrade his dignity, subject him to cruel treatment, or to establish such punishments ...”", "Article 22", "“Private life shall be inviolable.", "...", "The law and courts shall protect everyone from arbitrary or unlawful interference with his private and family life, as well as from encroachment upon his honour and dignity.”", "Article 25", "“Everyone shall have the right to have his own convictions and freely express them.", "No one may be hindered from seeking, receiving, or imparting information and ideas.", "The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order.", "The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation ...”", "Article 29", "“All persons shall be equal before the law, courts, and other State institutions and officials.", "Human rights may not be restricted; no one may be granted any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views.”", "Article 38", "“The family shall be the basis of society and the State.", "Family, motherhood, fatherhood and childhood shall be under the protection and care of the State.", "Marriage shall be entered into upon the free mutual consent of a man and a woman ...”", "Article 43", "“...", "There shall be no State religion in Lithuania.”", "27. The Civil Code reads:", "Article 3.7. Concept of marriage", "“1. Marriage is a voluntary agreement between a man and a woman to create legal family relations executed in the procedure provided for by law.", "2. A man and a woman who have registered their marriage in the procedure provided for in law shall be deemed to be spouses.”", "In Lithuania, there is no legislation in force to regulate a partnership between a man and a woman, or between two persons of the same sex. Attempts to pass such legislation have been unsuccessful. In particular, as early as in 2000, the Law on the Approval, Entry into Force and Implementation of the Civil Code provided that the norms of the Civil Code regarding partnership – common life between a man and a woman before entering into marriage – would come into force once the Law on Partnership had been enacted. No such law has been passed to this day.", "28. The old Criminal Code of 1961 provided that sexual intercourse between two men was a criminal act (Article 122). Criminal liability for such conduct was lifted in 1993, Lithuania having regained independence in 1990.", "29. The Law on Associations at the relevant time read:", "Article 2. Concept of an association", "“1. An association shall be a public legal person of limited civil liability who has its name and whose purpose is to coordinate activities of the association members, to represent interests of the association members and to defend them or to meet other public interests.", "...”", "30. The Criminal Code, at the relevant time, between 2007 and 2017, read:", "Article 170. Incitement against any national, racial, ethnic, religious or other group of people", "“...", "2. A person who publicly ridicules, expresses contempt for, urges hatred of or incites discrimination against a group of people or a person belonging thereto on the grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views", "shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years.", "3. A person who publicly incites violence or the physically violent treatment of a group of people or a person belonging thereto on the grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views or finances, or who otherwise supports such activities", "shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to three years ...”", "31. Methodological recommendation no. 12.14-40 of 23 December 2009 on the organisation, supervision and specifics of the conduct of the pre-trial investigation with regard to criminal acts that are committed on the grounds of race, nationality, xenophobia, homophobia or other forms of discrimination, issued by the Prosecutor General’s Office to the heads of regional and district prosecutors’ offices and the police, reads as follows:", "“33. ... the launch of a pre-trial investigation by the pre-trial investigation bodies and prosecutors’ offices should not be formalistic. A person who has provided information about an alleged criminal act in a non-standard ... way (e.g. orally, by telephone or by other electronic means) should not be requested to lodge a written complaint, if that person evidently does not wish to do so or refuses to do so because he/she does not wish to disclose his/her identity or for other reasons. Information about hate-related incidents (or allegedly committed criminal acts of such a nature) that is provided in such a manner cannot be left without procedural evaluation. ... Information regarding an allegedly committed criminal act should be evaluated as factual grounds for the pre-trial investigation officer or prosecutor while they themselves establish the elements of the criminal act [in question]. ... In the event that an anonymous application (submitted in whatever form) is received, the same procedure indicated in this paragraph is applicable.", "34. [C]riminal acts that are committed on the grounds of racial, national, xenophobic, homophobic [or] religious hatred or on other grounds of a discriminatory nature ... usually attract quite a high degree of public awareness, both within society and in the domestic and foreign media ... [They] [i] can do harm to the international reputation of the State, [ii] can make the [courts] the object of criticism by society and endanger the security of society. Therefore, expeditious and serious reaction on the part of the pre-trial investigation officials or the prosecutors to a written application received ... or any oral or written information submitted in any ... way about criminal acts that are allegedly committed on the grounds of ... homophobia ... or other reasons of a discriminatory nature, and the expeditious, qualified and immediate evaluation of the facts ... by adopting without delay the relevant procedural decisions ... leads to the stabilisation of the situation in society, suppression of anxiety provoked by the public incidents or attacks of an extremist nature in all society or in its most vulnerable members, and prevents the deterioration of the international reputation of the State.”", "32. The Code of Criminal Procedure, as worded at the relevant time, provided that when elements of a crime were discovered, a prosecutor or the investigating authorities had, within the limits of their authority, to undertake all measures provided by law to institute criminal proceedings in order to establish that a criminal act had been committed and ensure that the guilty parties were punished (Article 3). A prosecutor had to employ all measures available under the law in order to eliminate any violations of laws (Article 24).", "33. The Law on the Provision of Information to the Public ( Visuomenės informavimo įstatymas ), in so far as relevant, reads:", "Article 19. Information which should not be made public", "“1. It shall be prohibited to make public in the media information that:", "...", "(3) instigates war or hatred, ridicule, humiliation, ... discrimination, violence, or the physically violent treatment of a group of people or a person belonging to that group because of age, sex, sexual orientation, ethnic origin, race, nationality, citizenship, language, origin, social status, belief, convictions, views or religion ...”", "Article 49. The Inspector of Journalistic Ethics", "“1. The Inspector of Journalistic Ethics (hereinafter – the Inspector) is a State official who oversees how the principles of this Law are implemented ...”", "Article 50. The duties of the Inspector", "“1. The Inspector performs the following functions:", "(1) examines complaints (applications) [lodged by] persons regarding a violation of their honour and dignity in the media;", "(2) examines complaints (applications) [lodged by] persons regarding a violation of their right to private life;", "...", "(8) on the basis of the conclusions by the groups of experts ... establishes whether information made public in the media incites discord [ skatina nesantaiką ] on the grounds of gender, sexual orientation, race, nationality, language, descent, social status, convictions or views ...”", "B. The courts’ practice", "1. The Constitutional Court", "(a) Regarding the concept of “family” and the State’s obligation to protect human dignity", "34. By a ruling of 28 September 2011 in a case regarding the compliance with the Constitution of the Seimas’s Resolution on the approval of the State family policy concept, which related to the question whether only married persons and children born in such a union could be considered to constitute a family, the Constitutional Court held:", "“15.1. In the context of the constitutional ... case at issue it needs to be noted that the constitutional concept of family may not be derived solely from the institution of marriage, which is entrenched in the provisions of paragraph 3 of Article 38 of the Constitution. The fact that the institutions of marriage and family are entrenched in the same Article 38 of the Constitution indicates an inseparable and unquestionable relationship between marriage and family. Marriage is one of the foundations of the constitutional institution of the family [and serves] the [purpose of] the creation of family relations. It is a historically established family model that undoubtedly has exceptional value in the life of society and which ensures the viability of the nation and the State, as well as their historical survival.", "However, this does not mean that the Constitution – inter alia, the provisions of Paragraph 1 of Article 38 thereof – does not protect and defend families other than those founded on the basis of marriage – inter alia, the relationship between a man and a woman living together without having concluded a marriage, which is based on the permanent bonds of emotional affection, reciprocal understanding, responsibility, respect, shared upbringing of children and similar bonds, as well as on the voluntary determination to take on certain rights and responsibilities, which form a basis for the constitutional institutions of motherhood, fatherhood and childhood.", "Thus, the constitutional concept of family is based on mutual responsibility between family members, understanding, emotional affection, assistance and similar relations, as well as on the voluntary determination to take on certain rights and responsibilities – that is to say the content of the relationship – whereas the form of expression of such relationships has no essential significance for the constitutional concept of family.”", "35. More recently, in a ruling of 11 January 2019 in a case concerning the issuance of a temporary residence permit in Lithuania to a foreign national in the context of family reunification, and in response to a request for interpretation lodged by the Supreme Administrative Court regarding the constitutionality of the Law on the Legal Status of Aliens, the Constitutional Court held that a refusal to issue such a permit could not be based solely on the gender identity and/or sexual orientation of a foreign national.", "As to the State’s obligation to protect human dignity, it held:", "“29. ... Under paragraph 2 of Article 21 of the Constitution, human dignity is protected by law; paragraph 3 of the same Article establishes a prohibition, inter alia, on degrading human dignity.", "When interpreting those constitutional provisions, the Constitutional Court has held that dignity is an inalienable characteristic of a human, being of the greatest social value; every member of society has innate dignity; all people by nature are to be deemed equal in their dignity and rights. Human dignity should be regarded as constituting a special constitutional value. Dignity is characteristic of every human being, irrespective of how he/she assesses himself/herself or other people assess him/her.", "The Constitution establishes the State’s duty to ensure the protection and defence of human dignity. State institutions and officials have the duty to respect human dignity as a special value ...", "...", "30.1. The Constitutional Court has held that private life is the personal life of an individual: his or her way of life, marital status, ... relationships with other people, views, convictions, or habits ..., his/her physical or psychological state, health, honour, dignity, etc. The inviolability of private life, which is enshrined in the Constitution, gives rise to the right of a person to privacy, which includes ... the physical and psychological inviolability of a person, his/her honour and reputation ...", "The provision of Paragraph 4 of Article 22 of the Constitution is one of the most important guarantees of the inviolability of an individual’s private life: the private life of an individual is protected from unlawful interference by the State, other institutions, their officials, and other persons; this provision enshrines one of the aspects of the family concept confirming the constitutional significance of the family as a protected and fostered constitutional value.", "If the private life of an individual is interfered with in an arbitrary and unlawful manner, then, at the same time, his/her honour and dignity are encroached upon; the protection of human dignity is inseparable from the protection of the private life of a person.", "...", "31.2. The Constitutional Court has held that discrimination is most often understood as a restriction of the rights of an individual on the basis of gender, race, nationality, language, origin, social status, belief, convictions, views, or other characteristics...", "... It should be noted that one of the forms of discrimination prohibited under Article 29 of the Constitution is the restriction of the rights of a person on the grounds of his/her gender identity and/or sexual orientation; such a restriction should also be regarded as degrading human dignity.", "31.3. [O]nly ... a State that has respect for the dignity of every human being can be considered to be truly democratic. It should be emphasised that, as noted by the Constitutional Court, the Constitution is an anti-majoritarian act, which protects an individual.", "In view of this fact, ... it should be noted that, in a democratic state [operating] under the rule of law, the attitudes or stereotypes prevailing over a certain period of time among the majority of members of society may not, on the basis of the constitutionally important objectives, inter alia, ensuring public order ... or public policy, serve as constitutionally justifiable grounds for discriminating against persons solely on the basis of their gender identity and/or sexual orientation [or] for limiting the right, as guaranteed under Paragraphs 1 and 4 of Article 22 of the Constitution, to the protection of private and family life [or] the protection of relationships with other family members.", "31.4. The Constitutional Court has noted on more than one occasion that the constitutional principle of the equality of persons, which is enshrined in Article 29 of the Constitution, should be followed both in passing and applying laws.”", "36. Regarding the concepts of family and marriage, the Constitutional Court extrapolated:", "“32.3. In its ruling of 28 September 2011, the Constitutional Court held that the constitutional concept of the family may not be derived solely from the institution of marriage, as enshrined in Paragraph 3 of Article 38 of the Constitution [see also paragraph 34 above];", "...", "the duty, stemming from Paragraph 1 of Article 38 of the Constitution, for the State to establish, by means of laws and other legal acts, a legal regulation that would ensure the protection of the family as a constitutional value implies the obligation of the State not only to establish such a legal regulation that, inter alia, would create the preconditions for the proper functioning of families, strengthen family relationships, and defend the rights and legitimate interests of family members, but also to regulate, by means of laws and other legal acts, family relationships in such a way that no preconditions would be created in respect of discrimination against certain participants in family relationships (such as against a man and a woman who live together without having registered their union as a marriage, their children/adopted children, or single parents raising their child/adopted child).", "32.4. In this context, it should be noted that Paragraph 3 of Article 38 of the Constitution enshrines the constitutional concept of marriage concluded by the free mutual consent of a man and a woman. It should be emphasised that a different concept of marriage may not be enshrined under the laws of the Republic of Lithuania unless Paragraph 3 of Article 38 of the Constitution is amended accordingly.", "The Constitutional Court has noted that marriage is one of the grounds for the constitutional institution of the family for the [purpose of the] creation of family relationships; it is a historically established family model that has undoubtedly been of exceptional value in the life of society and ensures the viability of the nation and the State, as well as their historical survival.", "32.5. ... It should be noted that, unlike the constitutional concept of marriage, the constitutional concept of the family, among other things, is neutral in terms of gender. Under Paragraphs 1 and 2 of Article 38 of the Constitution – interpreted in conjunction with the principle of the equality of persons and the prohibition of discrimination, as established in Article 29 of the Constitution – the Constitution protects and defends all families that meet the constitutional concept of the family, which is based on ... permanent or long-lasting relationships between family members (i.e. reciprocal understanding and responsibility, emotional affection, and help and similar bonds, as well as on the voluntary determination to take on certain rights and duties). ...” (References to earlier rulings of the Constitutional Court omitted.)", "37. In its ruling the Constitutional Court made numerous references to the case-law of the Court of Justice of the European Union, including to its judgment of 5 June 2018 in case no. C-673/16 (see also paragraph 66 below). The Constitutional Court also relied extensively on the case-law of the Court.", "(b) Regarding Lithuania as a secular State", "38. On 13 June 2000 the Constitutional Court examined the compliance of certain provisions of the Law on Education with the Constitution. It held:", "“5. ...", "The freedom of convictions and their expression establishes ideological, cultural and political pluralism. No views or ideology may be declared mandatory and thrust on an individual, i.e. a person who freely forms and expresses his own views and who is a member of an open, democratic, and civil society. This is an innate human freedom. The State must be neutral in matters of convictions; it does not have any right to establish a mandatory system of views. ...", "7. Paragraph 7 of Article 43 of the Constitution establishes the principle of the absence of a State religion in Lithuania. This constitutional norm and the norm providing that there are traditional churches and religious organisations in Lithuania mean that the tradition of religion should not be identified with its belonging to the State system: churches and religious organisations do not interfere with the activity of the State, of its institutions or of its officials, they do not form State policy, and the State does not interfere with the internal affairs of churches and religious organisations; they function freely according to their canons and statutes ...", "Construing the norms set down in paragraph 7 of Article 43 of the Constitution that there is no State religion in Lithuania, in paragraph 4 of the same Article that churches and religious organisations are to function freely according to their canons and statutes, in paragraph 1 of Article 40 that State and municipal establishments of teaching and education are secular, as well as systemically in other constitutional provisions, the conclusion should be drawn that the principle of the separation of the State and the church is established in the Constitution. The principle of the separateness of the State and the church is the basis of the secularity of the State of Lithuania, its institutions and their activities. This principle, along with the freedom of convictions, thought, religion and conscience which is established in the Constitution, together with the constitutional principle of equality of all persons and the other constitutional provisions, determine the neutrality of the State in matters of world view and religion.”", "2. Criminal courts’ case-law referred to by one or both parties in their submissions to the Court or during the domestic proceedings", "(a) The Supreme Court", "(i) Cases that ended in acquittal", "(α) Ruling of 18 December 2012", "39. On 18 December 2012 the Supreme Court delivered a ruling in criminal case no. 2K-677/2012. The proceedings concerned the conviction of J.J. under Article 170 § 2 of the Criminal Code and her acquittal under Article 170 § 3. Those verdicts had been reached by trial and appellate courts. J.J. was found guilty of having posted on the Internet site of a daily newspaper underneath an article entitled “Young people protesting in front of the Seimas have not captured parliamentarians’ attention” ( Prie Seimo protestuojantys jaunuoliai nesulaukė parlamentarų dėmesio ) the following comment:", "“[S]ome people who empathise with ... such fags showing off are themselves the same [kind of] perverts and mentally ill people. Comments are being posted here also by participants in that public assembly of perverts. Shame on the organisers and participants of that assembly. There is a word – REPROBATE [ PASILEIDĖLIS ] – that characterises the person who cannot control his or her urges. Accordingly – reprobates are in front of our eyes. And not ordinary [reprobates], but reprobates of a special kind – these are PERVERTS [ IŠKRYPĖLIAI ]. They should be urgently sent to a psychiatric hospital. Their place is THERE.”", "40. The Supreme Court firstly noted that, under Article 25 of the Constitution, everyone had the right to have his own convictions and to freely express them, but that that freedom was incompatible with criminal actions, including incitement to hatred, violence and discrimination. That principle was specified in more detail by Article 170 of the Criminal Code, which mainly aimed at protecting the equality of persons but also at protecting their honour and dignity. The Supreme Court also pointed out that for criminal liability under Article 170 § 2 to arise, it was sufficient for the person concerned to publicly make “negative, degrading or demeaning” ( neigiami, niekinantys ar žeminantys ) statements towards one of the groups of persons defined in that provision, or by “inciting and urging” ( skatindamas ir kurstydamas ) negative feelings, hatred or discrimination in others in respect of that group of persons, or a member thereof. In that connection, the crime was considered to have been committed as soon as such statements were made ( nusikaltimo sudėtis formalioji ), and it was not relevant whether any consequences arose because of such statements ( pasekmių atsiradimas nėra svarbus ). As to the manner in which such a crime was committed – a necessary constitutive element of such a criminal act – the actions (or statement) in question had to be made publicly. In addition, the subjective element of a crime was that of direct intent ( tiesioginė tyčia ).", "41. Regarding the facts of that particular case, the Supreme Court considered that the trial and appellate courts had failed to take into account the “context of the events” which had prompted the comment in question. Namely, they had overlooked the fact J.J. had been referring to an unauthorised event ( nesankcionuotas renginys ) that had taken place near the Seimas. Accordingly, for the Supreme Court, “the convicted person’s negative reaction towards the unlawful event as such had [constituted] her natural civic position ( natūrali pilietiška pozicija )”. In that connection one also had to bear in mind the “provocative aspect” of the event and the unlawful manner, that is to say in the course of an unauthorised public gathering, in which the participants of that event had chosen to express their views ( pažiūros ) and ideas. The Supreme Court held:", "“The unauthorised event near the house of the Seimas [and] the eccentric behaviour of the participants truly did not contribute towards ... an understanding of others who had other points of view or towards building tolerance. The participants in that event, when using their right to freely express their beliefs and promote tolerance, should have had regard to the fact that that freedom is inseparable from the obligation to respect the views and traditions [ pažiūros ir tradicijos ] of others. This has a basis in Article 38 of the Constitution, [which states that] the family shall be the basis of society and the State ... and marriage shall be concluded upon the free mutual consent of a man and a woman. ... Under the legal regulation that today is in force in Lithuania, and the values protected by the Constitution, family – as a value protected by the Constitution – is a union between a man and a woman ...”", "42. The Supreme Court furthermore noted that J.J. had been found guilty under Article 170 § 2 of the Criminal Code of having publicly ridiculed ( viešai niekino ) “persons of homosexual orientation” by using the words “perverts” and “reprobates”. The Supreme Court then pointed out that according to both the Lithuanian Language Dictionary ( Lietuvių kalbos žodynas ) and the Contemporary Lithuanian Language Dictionary ( Dabartinės lietuvių kalbos žodynas ), a “pervert” was one who had a perversion, was a “degenerate” ( išsigimėlis ), or “a person who did not have a proper lifestyle” ( netvarkingai gyvenąs žmogus ). A “reprobate” was a person who was “naughty” ( išdykęs ), “fidgety” ( nenuorama ), “debauched” ( palaidūnas ) or “profligate” ( ištvirkėlis ). The Supreme Court thus concluded that even though those words had “negative and demeaning” ( neigiama ir niekinama ) connotations in the Lithuanian language, the mere use of those words in the impugned comment, without any concrete and direct statement inciting hatred or discrimination towards this group of persons, meant that there were no objective elements of a crime, as listed in Article 170 § 2 of the Criminal Code.", "43. The Supreme Court likewise considered that although J.J.’s use of the terms “pervert” and “reprobate” to express her opinion of an unauthorised public gathering of homosexual persons had not been ethical, they had not been dangerous enough to render her criminally liable under Article 170 § 2 of the Criminal Code. Lastly, the use of only two such unethical terms in the public sphere was not sufficient to establish the subjective element of a crime – namely that of the direct intent to incite hatred or discrimination in Internet users reading J.J.’s comment against homosexual persons.", "(β) Ruling of 1 March 2016", "44. On 1 March 2016 the Supreme Court delivered a ruling in criminal case no. 2K-86-648/2016, which concerned V.G.’s conviction under Article 170 §§ 2 and 3 of the Criminal Code by the trial court and his acquittal by the appellate court. Although the prosecutor lodged an appeal on points of law, arguing that V.G.’s comment “Such broken-asses should be given some trimming” ( Duot į kailį tokiems išdraskytašikniams ) underneath an article about gay persons’ rights posted on the Internet portal of a major daily news website merited criminal liability, the Supreme Court did not share that view. It admitted that discrimination on the basis of sexual orientation was just as perilous as discrimination on the basis of race or colour of skin. Moreover, comments on the Internet, in the event that they instigated hatred or violence, were dangerous, given the fact that persons could be inclined to write such comments because of the protection that anonymity afforded them and the fact that, because of the nature of the Internet, such comments could be read by a large number of persons, especially when published on one of the most popular websites, as was the situation in that case. The Supreme Court also pointed out that “the topic of sexual minorities’ rights in Lithuania was pertinent ( tema aktuali ) and was surrounded by a certain social tension that was linked, among other things, to a rather conservative (or negative) attitude on the part of society towards sexual minorities”.", "45. That being so, the comment at issue in those criminal proceedings was not such as to merit limitations on freedom of expression and the application of the criminal law as an ultima ratio measure. The Supreme Court acknowledged that V.G.’s comment had been of a negative and demeaning nature and directed against homosexuals. Nevertheless, even if the author of that comment had used his right to freedom of expression inappropriately, such a comment could not have posed a real danger to the values protected by Article 170 of the Criminal Code, that is to say it could not have breached homosexuals’ right of equality, collectively or individually, or their dignity. The comment also could not have genuinely incited readers of the Internet portal in question to commit violence against that group or individuals belonging to that group. For the Supreme Court, that conclusion stemmed from the fact that the comment in question had been “laconic” rather than specific (that is to say, the author had not further elaborated on his views in order to incite others against the group of persons in question); and “violence had been discussed only in an abstract manner and through the means of idiom”. The Supreme Court thus concluded that V.G.’s actions had lacked both the objective and subjective elements of a crime and that he had therefore been correctly acquitted.", "(ii) Cases that ended in conviction", "(α) Ruling of 2 March 2010", "46. On 2 March 2010 the Supreme Court delivered a ruling in criminal case no. 2K-91/2010, which concerned V.I.’s conviction for having used the expression “fucking nigger” in respect of a person of colour. The court noted that V.I. had used that term on one occasion in a public space – on the street in Vilnius. In an appeal on points of law V.I. had pleaded that she had used the term “negro”. The Supreme Court considered that the latter term, if used in Lithuania – which had no history of slave labour, segregation or social conflict on the basis of certain people belonging to another race and where the word “negro” therefore did not have a demeaning connotation – could not have been considered discriminatory on the basis of race. This also stemmed from the fact that “[historically], there were practically no persons of non-Caucasian race living in Lithuania”. The image of a “negro” in Lithuanian culture was linked to that of a person who had been exploited and was hard-working, and who therefore deserved compassion. However, the word “nigger”, which came from the English language, had a demeaning and vulgar connotation, especially when used together with word “fucking”. Accordingly, V.I. had been correctly convicted under Article 170 § 2 of the Criminal Code.", "(β) Ruling of 3 October 2017", "47. On 3 October 2017 the Supreme Court delivered a ruling in criminal case no. 2K-206-693/2017 upholding R.P.’s conviction under Article 170 §§ 2 and 3 of the Criminal Code for having posted a number of offensive and discriminatory comments in respect of persons of Russian ethnicity underneath articles posted on a major Internet news portal. The Supreme Court referred to the Court’s judgments in Mižigárová v. Slovakia (no. 74832/01, § 114, 14 December 2010) and Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005 ‑ VII) to the effect that discrimination on account of, inter alia, a person’s ethnic origin was a form of racial discrimination – a particularly invidious kind of discrimination that, in view of its perilous consequences, required from the authorities special vigilance and a vigorous reaction.", "(b) Lower courts", "(i) A case that ended in acquittal", "48. On 14 January 2011, in criminal case no. 1A-111/2011, the Vilnius Regional Court upheld the acquittal of Ž.R., who had been on trial under Article 170 § 1 of the Criminal Code for having once shouted: “These bastards ... should go back to their homeland, to Israel” during a public demonstration in Vilnius. Although the prosecutor argued that that statement had been discriminatory towards the Jewish people, the appellate court found that the Jewish nation had not been explicitly mentioned in that statement. In the view of the court, Israel was the homeland not only of the Jews, but also of persons of other nationalities, such as Arabs. Furthermore, a large number of Jewish people lived in the United States of America, and those people considered that country to be their homeland.", "(ii) Cases that ended in conviction", "49. On 26 May 2011 the Klaipėda Regional Court, in case no. 1A-411-107/2011, found V.M. guilty under Article 170 § 2 of the Criminal Code and gave him a fine. The case concerned a comment posted by V.M. on the Internet: “Children should be educated not to become faggots. And should they wish to become such, they should be thrown out of home like trash” ( Vaikus reikia auklėti, kad netaptų pederastais. O jei užsimano juo būti, reikia iš namų išmesti, kaip kokią šiukšlę ). The court considered that although the comment had not called for violence against homosexuals, it had clearly been degrading and discriminatory. The court also emphasised that the comment posted on the Internet had been public and accessible to a large number of people, not only to one or several persons participating in a discussion on the Internet. Moreover, by placing such a comment in a public space ( viešojoje erdvėje ) the author had aimed at his opinion becoming known to other Internet users, and this was the manner in which his intent to commit the crime manifested itself.", "50. In its appeal (see paragraph 19 above), the LGL Association relied on the below-mentioned decisions of 5 June 2014 and 27 June 2014.", "By a final decision of 5 June 2014 in criminal case no. 1-900-560/2014, the Kaunas District Court found T.K. guilty under Article 170 § 3 of the Criminal Code for having posted underneath an article on the Internet site of a major newspaper the comment “Fucking faggots, they should all be hanged without mercy, they should all be exterminated”. T.K. had confessed in full and had expressed regret for having posted such a comment. The criminal proceedings in that case had been brought by a non-governmental organisation, the Human Rights Monitoring Institute.", "51. By a final decision of 27 June 2014 in criminal case no. 1-1048-288/2014 the Kaunas District Court convicted but released on parole T.M., who had placed the comment “I would categorise homosexual people as handicapped” underneath an article on an Internet news portal. The court delivered that decision having established that although the comment had been correctly deemed to fall under Article 170 § 2 of the Criminal Code, T.M. had fully confessed and regretted his actions. In that case T.M.’s identity had been established through his computer’s IP address, which had been provided by his Internet service provider, and criminal proceedings had been opened on the basis of a complaint lodged by a non-governmental organisation, the Tolerant Youth Association ( Tolerantiško jaunimo asociacija ). The court also cited the conclusion reached by the Inspector to the effect that the comment at issue had been intended to ridicule homosexuals.", "52. On 24 May 2016, in criminal case no. 1A-335-209/2016, the Vilnius Regional Court found D.B.-L. guilty of inciting hatred against Jews. The court noted that D.B.-L., having received a university education, and being mentally healthy, understood the meaning of words such as “ Juden RAUS! ”, “Lithuania for Lithuanians, and Jews to the oven”, that she had posted in the comments sections underneath a number of articles on the Internet website of a major daily newspaper. The court confirmed that the crimes set out in Article 170 §§ 2 and 3 were committed once the expression containing a hateful comment had been made. The court also underlined that D.B.-L. had “posted her so-called comments twelve times! Such acts cannot be seen as accidental or imprudent ( atsitiktinės ar neapgalvotos )”. That being so, the court held that the statements that D.B.-L. had made had not incited violence and that her actions therefore fell under Article 170 § 2 of the Criminal Code, instead of the third paragraph of that provision.", "53. On 7 July 2017 in criminal case no. 1A-151-360/2017 the Klaipėda Regional Court upheld V.L.’s conviction under Article 170 § 2 of the Criminal Code. It established that on an unidentified social media profile V.L. had posted numerous anti-Semitic and anti-homosexual comments, as well as comments praising Lithuania’s occupation by the USSR. The appellate court pointed out that V.L.’s actions had not been accidental; they had been undertaken systematically and with the aim of stirring up discord in society ( sukiršinti visuomenę ).", "54. By a court order ( baudžiamasis įsakymas ) of the Kaunas District Court in case no. 1-2500-738/2014, P.Š. was found guilty under Article 170 § 3 of the Criminal Code for having made a single anti-homosexual comment (“Breivik should be called to come to the [gay parade in Kaunas]”) on a Facebook page. P.Š. had confessed to the crime and been given a fine.", "On 27 August 2014 in case no. 1-2540-311/2014, the Kaunas District Court found R.P. guilty under Article 170 § 2 of the Criminal Code for having made a single comment on the Internet site of a major daily newspaper (“better not go to the streets, faggots, because there will be much blood”). R.P. had also fully confessed to the crime and been given a fine.", "On 17 April 2015 the Trakai District Court found L.B. guilty under Article 170 § 2 of the Criminal Code and sentenced him to six months of deprivation of liberty, for having thrown eggs during a concert at a singer of homosexual orientation.", "C. Other relevant legal acts", "55. According to the information on the Internet site of the LGL Association, it is the only non-governmental organisation in Lithuania exclusively representing the interests of the local LGBT community. It is one of the most stable and mature organisations within the civil sector in the country, founded in December 1993. It aims at attaining effective social inclusion and integration of the local LGBT community in Lithuania and strives for consistent progress in the field of human rights for LGBT people.", "The statutes of the LGL Association, approved in 2015, provide that one of its main tasks is that of promoting measures to prevent homophobic hate crimes (point 10.1) and assisting people who have suffered discrimination to exercise their right to a defence, as well as representing such persons before pre-trial and other institutions and before courts at all levels of jurisdiction (point 10.3).", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Report by the European Commission against Racism and Intolerance", "56. The European Commission against Racism and Intolerance (ECRI) on 7 June 2016 published a report on Lithuania. The report noted that in addition to incidents of racist hate speech and violence, which were mainly directed at historical minorities, Lithuania was experiencing a problem involving the widespread incitement of homophobic/transphobic hatred and acts of violence against LGBT people. The growing level of intolerance against sexual minorities had remained largely unchecked. Furthermore, discrimination against LGBT people persisted in many areas of social life.", "57. As to homophobic/transphobic hate speech, including that posted on the Internet, the ECRI report specifically noted:", "Homo-/transphobic hate speech", "“22. In 2012, out of the 263 recorded incidents of hate speech, 47 were of a homo-/transphobic nature. In 2011, there had been 208 such incidents. According to human rights organisations met by ECRI’s delegation, homo- and transphobic hate speech, verbal harassment and inappropriate comments are common amongst the general public, as well as in the media and political discourse, resulting in LGBT persons feeling constantly discriminated against and excluded in day-to-day life. LGBT NGOs report a general atmosphere of intimidation, which results in LGBT persons not feeling confident to be open about their identity. Homo-/transphobic hate speech has also been described by civil society organisations as creating an atmosphere in which violence against LGBT persons becomes increasingly accepted. ...”", "Hate speech on the Internet", "“25. In Lithuania, hatred is often incited in cyberspace through online comments, blogs, social networks and other fora. Some 90% of reported hate speech cases ... are occurring in this sphere. Human rights activists monitoring hate speech in Lithuania noticed a trend towards creating web-pages hosted on US servers to post hate speech and attempt to circumvent Lithuanian anti-hate speech legislation. The sites are usually not restricted or shut down and remain available to be viewed also by Lithuanian Internet users.", "26. Homo- and transphobic hate speech is widespread on the Internet, in particular in online fora and in comments sections of news portals, rather than the articles themselves. Online hate speech goes largely unchecked and unpunished...", "27. The Internet is also used to make threats of violence. There have been several cases of threats against members of minorities, such as Poles and Jews. On numerous occasions, threats of violence were also made against LGBT persons or groups, especially through social networks”.", "58. As to measures taken by the Lithuanian authorities, the ECRI report noted:", "“ Measures taken by the authorities", "“28. ECRI considers hate speech particularly worrying because it is often a first step in the process towards actual violence. Appropriate responses to hate speech include law enforcement channels (criminal and administrative law sanctions, civil law remedies) but also other mechanisms to counter its harmful effects, such as self-regulation, prevention and counter speech. The Lithuanian authorities have taken various measures to combat hate speech, but more needs to be done.", "- Criminal law, administrative law and civil law responses", "29. The Prosecutor General’s Office reported that out of the thirty six pre-trial investigations under Article 170 of the Criminal Code on incitement against a national, racial, religious or other group carried out in 2010, 23 cases were transferred to the courts. 13 persons were found guilty and sentenced. In 2014, out of 106 cases reported to the law enforcement authorities, 43 resulted in prosecution.", "...", "31. ... The woman, who in 2009 had posted homophobic comments on a news website ... was convicted by the Kaunas District Court on 9 March 2012 of incitement to hatred under Article 170 § 2 of the Criminal Code. However, on 18 December 2012, the Supreme Court overturned the verdict and found that her words had been merely inappropriate, but did not constitute incitement to hatred. The Supreme Court was also of the opinion that the woman’s homophobic comments were provoked by the nature of the pro-LGBT event in front of the Seimas and the “eccentric conduct” of the protesters which violated the constitutionally protected traditional family values. Moreover, the Supreme Court emphasised that, in its view, criminal prosecution of homophobic hate speech should only be a measure of last resort [see paragraphs 39-43 above]. In spite of the Supreme Court judgement mentioned above, a Vilnius district court, in January 2013, found a person guilty of encouraging mockery, defiance, discrimination and physical violence against a group of people because of their sexual orientation and ordered him to pay a fine ... for having posted on Facebook: “What we need is another Hitler to exterminate those fags because there’s just too many of them multiplying.”", "32. ECRI would like to point out to the Lithuanian authorities that in a general climate of homo-/transphobia, firm, proportionate and appropriate actions, including criminal prosecutions, need to be taken to combat hate speech.", "33. A number of threats of violent attacks have been investigated by the prosecutorial authorities, but human rights defenders met by ECRI’s delegation criticise that some cases were dismissed by the courts on the basis that the threats did not appear sufficiently likely to be carried out.", "...", "Training of law enforcement officials and members of the judiciary", "35. In 2012, 37 judges and 15 prosecutors were trained on legal and social aspects in the fight against discrimination. Furthermore, the Lithuanian authorities trained a total of 350 police officers on the fight against racism and on promoting tolerance in general, but have not yet carried out planned trainings for them on relevant provisions of the Criminal Code, notably [Article 170], which had been part of one of ECRI’s priority recommendations ... However, the authorities informed ECRI that an agreement between the Ministry of Interior and the Office for Democratic Institutions and Human Rights (ODIHR) of the OSCE to provide assistance for such trainings, was concluded.", "36. ECRI recommends that the authorities fully investigate racist and/or homo-/transphobic threats and ensure that a lack of probability does not constitute an obstacle for convicting a perpetrator. Furthermore, the training programme for police officers on the fight against racism and promotion of tolerance should be expanded and the planned training sessions on relevant provisions of the Criminal Code be conducted. ECRI also recommends that the authorities carry out an evaluation of the impact the trainings had with a view to ensuring that further elements necessary to enable law enforcement officials and members of the judiciary to fight racist and homo-/transphobic hate speech, including threats, more effectively are identified and included in future training programmes.", "Monitoring and combatting online hate speech", "37. The previously existing Special Investigation Division within the Prosecutor General’s Office, which also dealt with hate crime, was dissolved in 2010, mainly due to lack of finance. The functions of this division have been allocated to two specialised prosecutors in the Prosecutor General’s Office and some 20 prosecutors at district level. The authorities also informed ECRI’s delegation that cybercrime investigation units have been established at 10 district police headquarters. These units are tasked to investigate criminal offences committed on the Internet, including racist and homophobic hate speech. Furthermore, the Cybercrime Law came into effect on 1 January 2015 and is the new legal basis for being able to close websites and Internet fora in cases where criminal content is discovered.", "38. Lithuania also participated in the EU programme Safer Internet, under which the Inspector for Journalist Ethics monitors online content. In 2014, 102 texts were reviewed and in 48 cases, expert advice was sought. Most of the investigated texts were not found in the news sections themselves, but in the readers’ comments sections. The largest group concerned racist hate speech, followed by anti-LGBT hate speech. The Inspector also organised eight training sessions for journalists in 2014.”", "59. The ECRI report then specifically tackled the issue of homophobic/transphobic violence:", "“ Homo-/transphobic violence", "53. All LGBT and human rights activists met by the ECRI delegation agreed that homo- and transphobic violence is a growing problem in Lithuania. There is, however, no full official data on such acts. According to LGBT representatives, this is mainly due to a fear of revealing one’s LGBT identity and lack of trust in the willingness of the police to investigate such crimes. According to the 2013 EU LGBT Survey, 39% of the 821 respondents in Lithuania said they were physically/sexually attacked or threatened with violence, but only 16% reported incidents of hate-motivated violence to the police. A monitoring report prepared by a local NGO reveals nine instances of violence against LGBT persons that occurred between January and November 2013, including one case of extreme physical violence, four cases of assault, and four cases of damage against property. The authorities, on the other hand, did not record any cases for 2013.", "54. The scale of the problem is also underestimated because of lack of awareness among police officers of the importance to register homo-/transphobic motivations as such. An example is the case of a young man who was beaten up in a bar in Vilnius, after having been approached by the perpetrator with the words ‘Are you gay?’ When he reported the case, the police were unwilling to record it as a homophobic attack and in the course of collecting testimony from the victim an investigator allegedly implied that he had been attacked because he provoked the perpetrator with unwanted advances of a sexual nature.", "55. Fear of living openly with one’s LGBT identity increases further as a result of violent attacks against public figures who do so, in particular if the bias-motivation is not formally acknowledged and the perpetrators are not apprehended and convicted. On 24 July 2014, for example, an explosive device was thrown at the openly homosexual singer R.K. during a concert in the village of Linksmakalnis. This was not the first attack against the singer. In February 2013, eggs were thrown at him during a concert, hitting him in the face [see also paragraph 54 in fine above]. In early July 2014, the partner of a transsexual artist was severely beaten by two attackers who also burned his face. They used homophobic insults prior to the attack.”", "60. As to measures taken by the Lithuanian authorities to combat hate crimes, the ECRI report specifically noted:", "“ Measures taken by the authorities", "56. According to the OSCE/ODHIR hate crime statistics, two cases were prosecuted per year in 2011, 2012 and 2013. These six court cases, with five convictions achieved, cover 40% of the 15 cases recorded by the police during this period.", "57. The authorities report that within the framework of the Inter-Institutional Action Plan on the Promotion of Anti-discrimination for 2012-2014, training courses were organised for police officers, prosecutors and judges on racist and homo-/transphobic violence. Although an evaluation of these trainings is not available, there seems to be a growing trend to investigate incidents of racist violence more effectively, including attacks against property. In a case of vandalism against a synagogue, for example, the perpetrator was speedily identified, prosecuted and sentenced to payment of a fine. The same cannot be said, however, for homo-/transphobic acts of violence ...", "58. The police service has an internal complaints mechanism, which also deals with complaints made by persons alleging to be victims of acts of racist and/or homo-/transphobic violence by police officers. There is, however, no independent specialised police complaints mechanism, which could be approached by individuals whose lack of trust in the police service prevents them from lodging a complaint.", "59. ECRI recommends further training for police officers, prosecutors and judges on how to deal with racist, and in particular homo-/transphobic acts of violence. This should include improved procedures for recognising bias-motivations, as well as confidence-building measures between the police and minority representatives and LGBT groups. ECRI also recommends the creation of an independent police complaints service that will be tasked to investigate, inter alia, allegations of racist and/or homo-/transphobic violence committed by law enforcement officials.”", "61. As to other topics specific to Lithuania, including legislation on the protection of minors against harmful impact and the position taken by the Inspector, the ECRI report also noted:", "“ Legislation: Restrictions of public information and awareness-raising", "90. Current legislation limits some types of public activities of LGBT persons. [The] Law on the Protection of Minors against the Detrimental Effect of Public Information ... bans ‘public defiance of family values’, which includes public information which ‘expresses contempt for family values, (or) encourages the concept of entry into a marriage and creation of a family other than that stipulated in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania’, which defines marriage as between a man and a woman.", "91. This law has been applied on several occasions recently. In May 2014, following complaints from the Lithuanian Parents’ Forum and a group of conservative MPs to the Ministry of Culture and the Lithuanian University of Educational Sciences (LEU), the children’s book Gintarinė širdis (Amber Heart) by author [N.D.], which had been published six months previously by the LEU, was withdrawn from bookshops. The book contains fairy tales featuring members of socially vulnerable groups, such as same-sex couples, Roma, and disabled people, and aims at promoting tolerance and respect for diversity among children. Following the complaints, the LEU explained the withdrawal of the book by suddenly describing it as ‘harmful, primitive and biased homosexual propaganda’. Furthermore, the Office of the Inspector of Journalistic Ethics concluded that two fairy tales that promote tolerance for same-sex couples are harmful to minors. The Inspectorate’s experts deemed the stories in violation of the Law on the Protection of Minors because they encourage ‘the concept of entry into a marriage and creation of a family other than stipulated in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania’. The experts also considered the stories to be ‘harmful, invasive, direct and manipulative’.", "92. In September 2014, fearing a potential violation of the Law on Protection of Minors, Lithuanian TV stations refused to broadcast a TV spot promoting tolerance towards LGBT people which had been prepared by an NGO for the campaign Change It. Subsequently, this decision was confirmed by the Inspector of Journalistic Ethics on the grounds that the TV spot seemed to portray a same-sex family model in a positive light, which the Inspectorate considered to have a negative impact on minors and to be in violation of the law.”", "62. Most recently, on 6 June 2019 ECRI published conclusions on the implementation of its recommendations in respect of Lithuania, subject to interim follow-up:", "“2. In its report on Lithuania (fifth monitoring cycle), ECRI recommended that the Lithuanian authorities, as part of the Inter-Institutional Action Plan for 2015-2020 on Non-Discrimination, set up an inter-institutional working group to develop a comprehensive strategy to tackle effectively the problem of racist and homo-/transphobic hate speech. This group should include the relevant authorities, as well as civil society organisations, including, amongst others, representatives of the LGBT community.", "In November 2016, the Lithuanian Ministry of Interior created a working group on hate crime monitoring, analysis and evaluation. ECRI has been informed by the authorities that this working group consists of experts from the Ministry of Interior, including the Ministry’s Information Technology and Communications Department, the Police Department, the Criminal Police Bureau, the Prosecutor’s Office, the Government Department for National Minorities, the Law Institute and civil society organisations, including the Human Rights Monitoring Institute, the Lithuanian Centre for Human Rights and representatives of the Jewish community and the LGBT community. The group met twice in 2016 and 2017. No meetings took place in 2018 and uncertainties remain as to the agreed tasks of the working group. Some activities, however, continued. On 8 March 2018, a seminar took place organised by the OSCE/ODIHR and the EU-FRA, jointly with the Ministry of Interior, for civil society members of the working group on improving monitoring of hate crime and the collection of related data in Lithuania in line with international standards.", "ECRI was also informed that the Prosecutor’s Office, the Office of the Inspector for Journalist Ethics and the Ministry of Interior started the implementation of a joint 20-months project entitled ‘Strengthening responses to hate crimes and hate speech in Lithuania’. The project aims to ensure effective investigations, prosecutions and adequate sentencing in hate crime cases; raise awareness among national authorities about the impact of hate crime and hate speech; understand the needs of vulnerable communities; address the problem of under-reporting and intensify efforts to counter on-line hate speech.", "Furthermore, in 2017, 12 police officers took part in the OSCE/ODIHR’s ‘Training against Hate Crimes for Law Enforcement (TAHCLE)’ programme and in 2018 the Police Commissioner General ordered the training of some 200 law enforcement officers on hate crime issues at the Lithuanian Police School and its partner institutions. Such training for police officers is implementing measures foreseen in the Action Plan for the Promotion of Non-discrimination (2017-2019). While ECRI recognises the positive intentions contained in the Action Plan, its overall level of coordination does not appear to be well developed, which is also highlighted by the fact that the Action Plan was adopted by only one Ministry, namely the Ministry of Social Security and Labour, and shows no evidence of being based on an integrated interagency strategy.", "In spite of some useful steps taken by the authorities, ECRI concludes that the various measures do not yet constitute a comprehensive strategic approach to effectively tackle the problem of racist and homo-/transphobic hate speech. The inter-institutional working group has also not arrived at developing such a strategy. ECRI encourages the Lithuanian authorities to continue and scale up its efforts to prevent and combat hate speech and hate crime and to overcome fragmentation by making effective use of the existing working group.", "ECRI considers that this recommendation has been partially implemented.”", "B. Surveys by the European Union Agency for Fundamental Rights and the Eurobarometer", "63. On 2 April 2012 the European Union Agency for Fundamental Rights launched, online, a study entitled the “European Union survey of discrimination and victimisation of lesbian, gay, bisexual and transgender persons”. The results showed that in Lithuania 61% of Lithuanian LGBT respondents had felt discriminated against or harassed on the grounds of their sexual orientation within the previous twelve months – the highest proportion in the European Union (EU), where the overall average stood at 47%. Furthermore, 27% of Lithuanian respondents had felt discriminated against while at work within the previous twelve months – the second highest number in the EU, where the overall average stood at 19%. The average number of violent incidents against LGBT people in Lithuania was 525 per 1,000 respondents – again, the highest proportion in the EU.", "64. On 1 October 2015 the European Commission published the results of the Eurobarometer survey “Discrimination in the EU in 2015”. 27,718 respondents from the EU (including 1,004 respondents from Lithuania) took part in the survey that was conducted from 30 May to 8 June 2015. Lithuanian respondents indicated that the most widespread forms of discrimination were on the grounds of sexual orientation (57%), age (50%), and gender identity (46%).", "50% of all Lithuanian respondents stated that gay, lesbian and bisexual people should not necessarily have the same rights as heterosexual people (the EU average was 23%). 71% of Lithuanians who participated in the study would not support same-sex marriages being legalised throughout Europe (the EU average was 33%). 59% would feel uncomfortable about having an LGB person in the highest elected political position (the EU average was 21%); 44% of Lithuanians would feel uncomfortable about having an LGB person as one of their colleagues at work (the EU average was 13%); 66% disapproved of sexual relationships between two persons of the same sex (the EU average was 27%); 47% of Lithuanians did not agree that school lessons and material should include information about diversity in terms of sexual orientation (the EU average was 27%).", "C. The case-law of the Court of Justice of the European Union", "65. On 7 November 2013, in Joined Cases C‑199/12 to C‑201/12, the Court of Justice of the European Union (CJEU), when interpreting Directive 2004/83EC in connection with questions concerning minimum standards relating to the conditions for the granting of refugee status or subsidiary protection status, including membership of a particular social group, held:", "“When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.”", "66. On 5 June 2018, in Case C-673/16, the Grand Chamber of the CJEU delivered a preliminary ruling, holding that in a situation in which an EU citizen had made use of his freedom of movement by moving to and taking up genuine residence in a member State other than that of which he was a national, and, while there, had created or strengthened a family life with a third-country national of the same sex to whom he was joined by a marriage lawfully concluded in the host member State, Article 21 § 1 of the Treaty on the Functioning of the European Union, which provided for EU citizens’ right to move and reside freely within the territory of the member States, had to be interpreted as precluding the competent authorities of the member State of which the EU citizen was a national from refusing to grant that third-country national a right of residence in its territory on the ground that its law did not recognise marriage between persons of the same sex.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8", "67. The applicants complained that they had been discriminated against on account of their status, which had been the reason underlying the domestic authorities’ refusal to open a pre-trial investigation into hateful comments posted on the first applicant’s social network page. They claimed a breach of Article 14 of the Convention taken in conjunction with Article 8, which, in so far as relevant, read as follows:", "Article 8", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... or other status.”", "A. Admissibility", "1. The parties’ submissions", "(a) The Government", "68. The Government stressed, firstly, that the applicants themselves had never lodged an application for the opening of criminal proceedings with a prosecutor’s office or any other relevant domestic institution in respect of the negative comments at issue. According to the Government, the criminal case file did not contain the applicants’ letter of 10 December 2014 to the LGL Association asking the latter to pursue criminal proceedings (see paragraph 16 above). The Government asserted that the applicants had only submitted that letter to the Court; it contained no stamp or any other sign confirming its receipt by the LGL Association. In any case, in that letter the applicants had asked the LGL Association to act in its own name, not on their behalf. The Government thus asserted that the opening of the pre-trial investigation had been the intention, exclusively, of the LGL Association, which saw the proceedings as strategic litigation, since the applicants themselves had never wished to institute such proceedings. Even so, the Government acknowledged that under the domestic law, any person could inform the relevant domestic institutions of the alleged commission of a criminal act (see paragraph 32 above).", "69. In that connection, the Government also disputed the applicants’ argument that they had feared retaliation by the authors of the online comments should they lodge such a complaint themselves (see paragraph 72 below). In fact, Lithuanian law provided additional procedural guarantees in respect of alleged victims of homophobic hate crimes, including a special procedure that permitted the authorities not to reveal the identity of a person who had submitted an application (see paragraph 31 above). Certainly, the applicants’ fear of retaliation by the authors of those comments had not stopped them from lodging an application with the Court. The Government likewise saw no grounds for the applicants’ statement that their personal complaint would have been treated less seriously by law-enforcement officials than a complaint lodged by a non-governmental organisation.", "70. The Government furthermore stated that the comments at issue, although deplorable for being “offensive and vulgar”, had not given rise in this particular case to any criminal responsibility owing to the lack of the required elements of a criminal act under Article 170 of the Criminal Code. Other domestic remedies had therefore been available to the applicants, such as lodging a civil claim for damages in respect of an attack on their honour or dignity, or lodging a request with the Office of the Inspector, asking it to help them to delete the comments that had been posted. However, the applicants had not done so.", "71. Lastly, given the lack of any constitutive elements of a crime, the domestic authorities’ decision to refuse to initiate a pre-trial investigation concerning the comments on the first applicant’s Facebook page had been reasonable and the applicants’ complaint under Article 14 of the Convention taken in conjunction with Article 8 was manifestly ill-founded.", "(b) The applicants", "72. The applicants saw as speculative the Government’s argument that it had been the LGL Association and not the applicants that had wished to pursue criminal proceedings in Lithuania. While the LGL Association had in fact initiated those proceedings, it had acted with the applicants’ knowledge and consent, as proven by their request of 10 December 2014 (see paragraph 16 above). The applicants had had weighty reasons for trusting the LGL Association to initiate the domestic proceedings on their behalf, including a fear of retaliation by the authors of the hostile online comments and a fear that their complaints would not be taken seriously by law-enforcement officials.", "73. Furthermore, the validity of the reasons behind the applicants’ decision not to initiate the domestic proceedings themselves, but rather to trust the LGL Association to do so on their behalf, was not and should not be a matter of dispute in the instant case. As correctly pointed out by the Government, under domestic law any person could inform the relevant domestic institutions of an alleged criminal act (see paragraph 68 in fine above). Moreover, the Government had failed to explain what difference it would have made if the applicants had initiated the domestic proceedings themselves. It also had to be borne in mind that the LGL Association was the sole civil-society organisation in Lithuania representing the interests of the LGBT community and seeking to improve their situation. In fact, its statutes read that it sought to “promote measures to prevent homophobic ... hate crimes” (see paragraph 55 above). Accordingly, it seemed that the Government were challenging the very fact that a civil-society organisation might also have a legitimate interest in the outcome of the applicants’ case, and thus questioning the fundamental role of non-governmental organisations in performing a “public watchdog” function in a pluralist, democratic society. Lastly, the fact that the LGL Association had acted with the full knowledge and consent of the applicants when initiating the domestic proceedings was further confirmed by the fact that it was the applicants themselves who were complaining before the Court as “victims”, within the meaning of Article 34 of the Convention. It was very difficult to imagine that the applicants would have lodged the application with the Court if it had not represented their genuine wishes or intentions.", "74. The applicants did not comment on the Government’s suggestion that they should have pursued civil proceedings for damages.", "2. The Court’s assessment", "(a) General principles", "75. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention. Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, and the case-law cited therein).", "76. In this connection, the Court reiterates that according to the Convention organs’ consistent approach, the word “victim” of a breach of rights or freedoms denotes the person directly affected by the act or omission which is in issue (see Marckx v. Belgium, 13 June 1979, § 27, Series A no. 31; Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45; and Bączkowski and Others v. Poland, no. 1543/06, § 65, 3 May 2007).", "77. The Court also points out that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant only to remedies that relate to the breaches alleged and at the same time are available and sufficient. The application of this rule must make due allowance for the context. Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. The rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case (see Identoba and Others v. Georgia, no. 73235/12, § 85, 12 May 2015).", "(b) Application of the general principles to the instant case", "78. The Court reiterates that, following the posting of the above-mentioned comments on the first applicant’s Facebook page, the LGL Association requested the Prosecutor General’s Office to open criminal proceedings against the authors of those comments, which the LGL Association considered to be of a criminal nature (see paragraph 17 above). Subsequently, the LGL Association consistently appealed against the prosecutor’s and the court’s rulings that those comments had been merely unethical and lacked the constitutive elements of a crime (see paragraphs 19 and 22 above). The Court attaches considerable significance to the fact that the LGL Association’s capacity to represent the applicants’ interests before the prosecutors and the courts at two levels of jurisdiction has never been questioned or challenged in any way. As a matter of fact – and irrespective of whether the applicants’ complaint to the LGL Association and their request for criminal proceedings to be initiated in respect of the comments on the first applicant’s Facebook page were submitted to the prosecutor and included in the criminal case file – those authorities dealt with the application and appeals submitted to them without any objections as to standing, regardless of their conclusion as to the merits of the complaint (see paragraphs 18, 20-21 and 23 above; see also Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 110, ECHR 2014).", "79. Furthermore, the Court cannot but note that under Lithuanian law, any person can notify the law-enforcement authorities that a crime may have been committed, and the authorities are then under an obligation to investigate (see paragraph 32 above; see also Česnulevičius v. Lithuania, no. 13462/06, § 49, 10 January 2012). The Government have not demonstrated that such a complaint could not be lodged by a non-governmental organisation, those entities being created precisely for the purpose of representing and defending their members’ interests (see paragraph 29 above; see also paragraph 140 below). In the present case, where the issue of violence-inciting hate speech against persons belonging to the homosexual minority was brought by the LGL Association to the Lithuanian authorities’ attention, the Court is even more inclined to hold that, once they had been notified of those issues – regardless of by whom – the prosecutors were under an obligation to investigate the comments. Such a conclusion also stems from the Government’s own admission, based on the methodological guidelines issued by the Lithuanian Prosecutor General’s Office, that in respect of homophobic crimes, the launching of a pre-trial investigation should not be formalistic and that prosecutors should be conscious of the vulnerability of the victims of such crimes. Likewise, prosecutors are under an obligation to act, even if the application received is anonymous (see paragraph 31 above). The fact that persons guilty of homophobic speech can be prosecuted on the basis of applications lodged by non-governmental organisations is also supported by the practice of the domestic courts (see paragraphs 50-51 above).", "80. Although the Government argued that this case had been taken up by the LGL Association by way of strategic litigation, the Court finds that, even if there might have been an element of strategic litigation in the LGL Association lodging the complaint on the applicants’ behalf, this is irrelevant for the admissibility of the applicants’ complaint. It suffices to note that the legal action brought by the LGL Association was not an actio popularis, since it acted not on the basis of any abstract situation, be it a provision of domestic law or practice, affecting LGBT persons in Lithuania, but in response to specific facts affecting the rights of the two applicants – members of that association – under the Convention; moreover, these facts were supported by the evidence which it furnished to the authorities (see paragraph 17 above; see also Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 110).", "81. Against the above background, the Court is satisfied that, given the circumstances of this case and bearing in mind the serious nature of the allegations, it should have been open to the LGL Association, of which the applicants were members (see paragraph 7 above) and which is a non-governmental organisation set up for the purpose of assisting people who have suffered discrimination to exercise their right to a defence, including in court, to act as a representative of the applicants’ “interests” in the domestic criminal proceedings (see paragraphs 29 and 55 above). To find otherwise would amount to preventing such serious allegations of a violation of the Convention from being examined at the national level. Indeed, the Court has held that in modern-day societies recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to citizens to defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members’ interests is recognised by the legislation of most European countries (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §§ 37-39, ECHR 2004 ‑ III; see also, mutatis mutandis, Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 101, 103 and 112, and the case-law cited therein). Any other, excessively formalistic, conclusion would make protection of the rights guaranteed by the Convention ineffectual and illusory. In that context, and also in the light of the findings by ECRI (see paragraphs 33 and 58 of the report cited in, respectively, paragraphs 58 and 59 above), the Court is also not ready to disregard the applicants’ statement that they preferred that the LGL Association initiate the criminal proceedings on their behalf for fear that the Internet commenters would retaliate should the applicants launch such proceedings themselves. Lastly, the Court observes that the present application was lodged by the applicants, acting for themselves, after the domestic courts had adopted decisions in the case that dealt with their particular situation.", "82. Turning to the Government’s objection that, given what they saw as the lack of the constitutive elements of a crime in the comments at issue (see paragraph 70 above), other remedies – such as lodging a civil claim for damages or lodging a complaint with the Inspector – should first have been exhausted, the Court finds that this question is intrinsically linked to the merits of the applicants’ complaint and must therefore be joined to the merits.", "83. The Court further notes that the complaints under this heading are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicants", "84. The applicants maintained that they had been treated differently by the Lithuanian authorities because of their sexual orientation. The difference in treatment had manifested itself in the prosecutor’s and the courts’ refusal to enforce the Lithuanian criminal legislation, notwithstanding the fact that the applicants had been subjected to extreme homophobic online hate speech. The content of the domestic authorities’ decisions had also made it clear that it had been the applicants’ sexual orientation, as demonstrated in the photograph posted on the first applicant’s social network page, that had justified the decision not to start a pre-trial investigation. Accordingly, one could not follow the Government’s argument that in the present case the applicants’ homosexuality itself had never been a ground for refusing to start a pre-trial investigation (see paragraph 93 below). In fact, as pointed out by the Regional Court, it was precisely the public display of their sexual orientation that had been identified by that court as “an attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments” (see paragraph 23 above).", "85. The fact that they had been treated differently by the public authorities exclusively owing to their sexual orientation could be illustrated by a hypothetical comparison with other individuals in a similar situation, such as a comparison between the applicants and a hypothetical unmarried opposite-sex couple who had posted a picture of themselves kissing on their public social-media profile. Applying the reasoning of the domestic courts, an opposite-sex kiss would have been in line with “traditional family values”. Moreover, since such an opposite-sex kiss (that is to say, “non-eccentric behaviour”) would not have been aimed at provoking people into posting negative comments, the prosecutors would certainly have launched a pre-trial investigation if comments had been posted encouraging Facebook users to “kill” or “burn” an opposite-sex couple. The applicants were likewise convinced that the outcome of the domestic proceedings, that is to say, the decision not to prosecute, would not have occurred if the picture had depicted any other social or ethnic group within Lithuanian society, such as the Lithuanian Jewish community, and analogous comments, such as “throw [them] into the gas chambers” and “exterminate them”, had been posted. The applicants thus asserted that in their own particular case, the refusal by the public authorities to open a pre-trial investigation had been partially or entirely motivated by an unmerited distinction on the grounds of their sexual orientation.", "86. The applicants also disagreed that the expression of their affection (that is to say, their same-sex kiss) should have been considered as constituting “eccentric” or “provocative” conduct, since they had not violated any of the rights of others by posting that particular picture on the first applicant’s Facebook page. They therefore maintained that their different treatment on the grounds of their sexual orientation had lacked any objective and reasonable justification. The position of the domestic courts and the Government (see paragraphs 21 and 23 above, and paragraph 94 below) seemed to suggest that the applicants had no right to kiss in public, be that on the first applicant’s Facebook page or on the street, since this amounted to “eccentric behaviour” owing to the applicants’ sexual orientation. The Government’s position also seemed to suggest that if the sight of two men kissing had triggered threats of violence, in strict contravention of Article 170 of the Criminal Code, then that had been the fault of the applicants, and the courts had thus been correct in refusing to enforce the relevant Lithuanian legislation aimed at protecting same-sex couples such as the applicants. Such a position of the Government amounted to accepting as justified the private prejudices of the members of public who had written those threatening comments, rather than using Lithuanian legislation to challenge those prejudices. This was clearly incompatible with Articles 14 and 8 of the Convention and the Court’s case-law on the subject (the applicants relied on Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999 ‑ VI, and Alekseyev v. Russia, nos. 4916/07 and 2 others, § 81, 21 October 2010).", "87. The applicants further submitted that the domestic authorities had failed to strike a fair balance between the competing interests – the right to freedom of expression on the part of the Internet commenters and the applicants’ right to respect for their private life. They also relied on the Court’s judgment in Delfi AS v. Estonia ([GC], no. 64569/09, §§ 110 and 117, ECHR 2015) to the effect that while important benefits could be derived from the Internet in respect of the exercise of freedom of expression, liability for defamatory or other types of unlawful speech had, in principle, to be retained and constituted an effective remedy in respect of violations of personality rights. The Court had also held that the unlawful nature of online comments in certain instances did not require any further linguistic or legal analysis if those remarks were on the face of it unlawful. For the applicants, it was difficult to understand how comments such as “Burn the faggots”, “Into the gas chamber with the pair of them”, “You are fucking gays – you should be exterminated” and “Kill” in their case did not amount to punishable criminal hate speech in respect of sexual orientation under Article 170 of the Criminal Code. If those comments had merely constituted “unethical” expressions of opinion then it was unclear what statements would be “sufficient” to qualify as “publicly ridiculing, expressing contempt, urging hatred or inciting discrimination”.", "88. The applicants also criticised the fact that the domestic authorities had considered that a crime under Article 170 §§ 2 and 3 had to have been committed by means of systematic actions, even though neither the wording of that provision nor its interpretation by the domestic courts in other hate-speech cases mandated this criterion. In fact, according to the domestic courts’ case-law, one single expression of public ridicule or contempt – or one single instance of hatred or discrimination against a certain group of people – amounted to the criminal offence of incitement of hatred. It followed that by introducing the additional element of actus reus, the prosecutor and the domestic courts had relied on a flawed interpretation of the law and had violated the fundamental principle of legal certainty.", "89. Likewise, the prosecutor and the courts had attached significant weight to the fact that the alleged crime against the applicants had lacked direct intent, concluding that there was therefore no “subjective element” or mens rea in respect of the crime. However, both the prosecutor and the appellate courts had reached this conclusion without approaching and conducting interviews with the alleged perpetrators, notwithstanding the LGL Association’s request that such investigative steps be taken (see paragraph 22 above).", "90. Although the Government had placed great emphasis on what to them appeared to be a cross woven into the second applicant’s jumper (see paragraph 94 below; see also paragraphs 99 and 118 below), none of the thirty-one online comments brought to the prosecutors’ attention had made reference to any offended religious feelings on the part of the authors of the comments. Furthermore, out of more than 800 comments posted under the photograph in question, the Government had been able to identify only one that referred to the presence of the image of a cross in the picture. This was not surprising, because the position of the second applicant’s left arm had made it impossible to determine whether there was indeed a cross on his jumper, or some other shape. Additionally, the presence of a cross shape had never been addressed as part of any factual and/or legal assessment undertaken by the prosecutor’s office or the domestic courts when deciding on the applicants’ case. The Government’s attempt to introduce an “additional” – and “distracting” – reason for the hostile comments thus had no basis in facts.", "91. Lastly, the applicants acknowledged that one of their aims in posting the photograph in question had been to test the level of tolerance among the Lithuanian population, and it had been their fundamental right to do so under Article 10 of the Convention. In fact, on multiple occasions the Court had reiterated that freedom of expression was applicable not only to “information” or “ideas” that were favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed the State or any sector of the population. Accordingly, the Government’s suggestion that the applicants could have concealed their sexual orientation, or exercised reserve in expressing their sexual orientation by not kissing in the photograph, or deleted the negative comments once they had been posted (see paragraph 101 below) was irrelevant, because it once again sought to shift the responsibility for hateful comments being written by perpetrators onto the applicants. The Government had thus seemed to engage in “victim shaming” and “victim blaming”. In a case of gender-based violence, the equivalent statement would be that a woman had been raped because she had been wearing “provocative” or “eccentric” clothing. In that context the applicants also referred to the Court of Justice of the European Union’s findings (see paragraph 65 above), which they saw as a fortiori applying to the expression of sexual orientation in the European Union and the Council of Europe member States.", "(b) The Government", "92. The Government submitted, firstly, that the applicants’ intention had not been to announce the beginning of their relationship, as they were trying to argue before the Court, but instead to start a public discussion about the rights of LGBT persons in Lithuania. The applicants had foreseen the negative reaction of third persons to their actions and had even been looking forward to it (see paragraph 11 above).", "93. According to the Government, in the present case none of the domestic authorities had had a predisposed bias against the homosexual minority. The applicants’ homosexuality had never been a ground in itself for the refusal to start a pre-trial investigation (the Government contrasted the applicants’ situation to that of the applicants in Smith and Grady, cited above, § 121). The applicants’ conduct had been assessed by the domestic authorities in order to establish the context in which the comments had been made and to establish the intent of the commenters. In that respect the Government also wished to emphasise certain aspects of the domestic courts’ conclusion that the applicants had attempted to deliberately tease or shock individuals holding different views or to encourage the posting of negative comments.", "94. The Government accordingly submitted that, firstly, “the photograph itself was already rather provocative on account of the kiss between two gays”, taken together with the image of a big cross across the second applicant’s jumper. The applicants’ conduct, that is to say their non-verbal means of expression – wearing a jumper with a cross, which was the principal symbol of the Christian religion – could be regarded as a way of expressing the applicants’ views as regards the compatibility of homosexuality with the Christian religion (the Government referred to Donaldson v the United Kingdom (dec.), no. 56975/09, § 29, 25 January 2011). In the Government’s view, the public display of such a photograph together with the image of a cross “could have sparked conflict with people of a different cultural and religious background”. This was illustrated by one comment under the photograph, which read as follows: “Very beautiful composition. In particular, the cross on the jumper. In place.” The Government thus considered that in such cases “the Contracting States had a wide margin of appreciation in assessing which emblems could potentially inflame existing tensions if displayed publicly” (ibid., § 28).", "95. Secondly, the comments in dispute had been made during an intense and heated discussion on Facebook, in which the applicants had also participated. Some persons had strongly supported the act of posting the photograph, some had been strongly opposed to homosexuality as such, and others had not been against homosexuality but had nevertheless not approved of the posting of the photograph in question. Thirdly, the provocative nature of the applicants’ behaviour had been recognised by their supporters themselves. Indeed, in a public post of 9 December 2014 – that is to say, only one day after the posting of the photograph of the applicants – LGBT-friendly Vilnius had specifically used the verb “provoked” (see paragraph 11 above); subsequently the first applicant had implied much the same thing (see paragraph 14 above).", "96. The Government considered that the domestic authorities’ reference to “traditional values” (see paragraph 21 above) did not mean that homosexuals were not tolerated in Lithuanian society. Rather, the domestic courts had been referring to the applicants themselves, who had deliberately demonstrated their opposition to such values. In other words, the domestic authorities’ decision not to start a pre-trial investigation had had nothing to do with so-called “traditional” and “non-traditional” values as such.", "97. Furthermore, the so-called “eccentric behaviour” of the applicants had not been the sole factor prompting the domestic institutions to decide not to start a pre-trial investigation, given that the constitutive elements of a crime had not been established by the domestic authorities in the present case. The Government considered that the situation in the present case differed from a situation involving intense fear and anxiety, such as that described in the judgment of Identoba and Others (cited above, §§ 70-71). Contrary to the facts in that case, the people who had commented negatively on the Facebook page of the first applicant had not outnumbered the applicants and their supporters, and no physical assaults had ever taken place against them. In that context it was noteworthy that almost since the re-establishment of Lithuania’s independence in 1990 numerous actions had been taken to protect LGBT rights in the country. Baltic Pride, an annual LGBT pride parade, had taken place in Lithuania in 2010, 2013 and 2016. The applicants had taken part in that parade in 2016, and the first applicant had been happy when there had been no protests against the event (see paragraph 15 above).", "98. The Government also pointed to the nature and structure of the Facebook page on which the impugned comments had been made. Under Article 170 of the Criminal Code it was a criminal offence to make public statements directed at a wide and unlimited group of people seeking to incite them to violence against a group of other persons belonging to a distinct group owing to their sexual orientation (see paragraphs 44-45 above). The Court had likewise recognised that the “potential impact of the medium concerned was an important factor” (the Government referred to Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 56, 2 February 2016). In the present case, however, the comments had been made on a social network page and not, for example, on an Internet news portal, which could have attracted a large number of comments. Moreover, the comments had been made within the context of a discussion started intentionally by the first applicant and had been made on a social network, an action that had been unlikely to attract much attention.", "99. The Government also noted that the crimes listed in Article 170 §§ 2 and 3 of the Criminal Code required direct intent, an element that had been absent in the instant case. In their view, the Facebook users had posted their comments “on the spot”, not in a premeditated fashion, after they had come across the photograph together with the comments posted by other Facebook users, including by the applicants themselves and their supporters. In the same vein, those commenters, although they had used improper words, had been trying to show that, contrary to what had been suggested by the applicants and their supporters, homosexuality was negative in itself and had a negative impact on children, and that the applicants’ conduct by depicting a cross in their photograph had been incompatible with the Catholic religion. It had to be borne in mind that the domestic authorities had considered that the comments had not been systematic, and that was one of the factors that could also indicate that there had no been direct intent on the part of the perpetrators, and that posting such comments had therefore not reached the threshold required by Article 170 §§ 2 and 3 of the Criminal Code (see paragraphs 52-53 above). The fact that most of the comments had been one-off ( pavieniai ), and that some had consisted of only a couple of words was a further indication of a lack of intent. That also followed from the Supreme Court’s case-law (see paragraph 45 above). Such a lack of direct intent to incite Internet users against homosexuals had also constituted a ground for the domestic institutions to refuse to initiate a pre-trial investigation.", "100. It also had to be noted that, in line with international human rights standards, the domestic courts had deemed that holding someone criminally accountable was an ultima ratio measure. The Convention recognised the right to insult, offend, shock and disturb. In the Government’s view, “speech should only be criminalised if it was intended to incite the commission of violent criminal acts against individuals and was likely to produce such an effect”.", "101. Lastly, the Government noted that, in order to mitigate any alleged danger caused by the comments in question, the applicants could have deleted the negative comments from the first applicant’s Facebook page, since there had been such a technical possibility. Instead they had chosen to keep them on the page – indeed, they had even referred to them subsequently (see paragraph 14 above).", "(c) The third-party interveners", "102. The AIRE Centre, ILGA-Europe, the International Commission of Jurists and the Human Rights Monitoring Institute jointly submitted observations.", "103. The third-party interveners first stated that while criminal law should be used sparingly in the area of freedom of expression, in a number of cases concerning incitement to commit acts of violence against others, the Court had nevertheless considered that a criminal-law response had been appropriate (they referred to Belkacem v. Belgium (dec.), no. 34367/14, 27 June 2017). The third-party interveners also considered that the elements of likelihood, foreseeability and imminence of hostility or violence had to be considered before determining whether and when instances of hate speech constituted incitement to commit violent acts and should therefore be criminalised. In their view, from the case-law of the Court it appeared clear that there was no need to show that harm had actually been caused. Furthermore, where hate speech constituting incitement to commit violent acts against individuals had occurred, then the Court’s position was clear: failure to investigate, prosecute and punish such hate speech amounted to a breach of the State’s positive obligations under the Convention (in that context, they cited Faruk Temel v. Turkey, no. 16853/05, § 62, 1 February 2011).", "104. The third-party interveners also pointed out that in many European jurisdictions the term “hatred” also covered hatred on the grounds of sexual orientation. The encouragement of such acts, including the exaltation or justification of violence or hostility by any means of public expression, including in the media, was criminalised. Such was the situation in, among other States, Spain, Austria, Croatia, Finland, Greece, Malta and Portugal. Moreover, most States recognised intent as one of the defining elements of incitement. Likewise, in the majority of the Council of Europe member States, for actions to be found to constitute incitement to hatred, they had to have occurred in public.", "105. As to Lithuania, the third-party interveners stated that LGBT people were perceived there as belonging to one of the most vulnerable social groups, as confirmed by various nationwide surveys (see also paragraph 144 below).", "2. The Court’s assessment", "(a) General principles", "106. Referring to the hallmarks of a “democratic society”, the Court has attached particular importance to pluralism, tolerance and broadmindedness. In that context it has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved that ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 112, ECHR 1999 ‑ III; S.A.S. v. France [GC], no. 43835/11, § 128, ECHR 2014 (extracts); and Bączkowski and Others, cited above, §§ 61 and 63, with further references).", "107. The Court has also often emphasised that pluralism and democracy are built on genuine recognition of, and respect for, diversity. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-I).", "108. The Court has also noted the States’ positive obligation to secure the effective enjoyment of the rights and freedoms under the Convention. This obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation (see Bączkowski and Others, cited above, § 64; as to the States’ positive obligations, see also Identoba and Others, cited above, §§ 63-64).", "109. The Court has also held that the concept of “private life” is a broad term not susceptible to exhaustive definition, which covers also the physical and psychological integrity of a person (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 126, 25 June 2019). Such elements as a person’s sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, among other authorities, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008; for a broader context, see also Van Kück v. Germany, no. 35968/97, § 78, 12 June 2003, on sexual self-determination constituting one of the aspects of a person’s right to respect for his private life). In order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see, mutatis mutandis, Delfi AS, cited above, § 137, with further references; see also, on the importance of the analysis of the seriousness of the impugned interference for Article 8 to come into play in the context of different types of cases, Denisov v. Ukraine [GC], no. 76639/11, §§ 110-14, 25 September 2018).", "110. Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State’s margin of appreciation, effective deterrence against grave acts where essential aspects of private life are at stake requires efficient criminal-law provisions (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII).", "111. The Court has acknowledged that criminal sanctions, including against the individuals responsible for the most serious expressions of hatred, inciting others to violence, could be invoked only as an ultima ratio measure (see, mutatis mutandis, Vona v. Hungary, no. 35943/10, § 42, ECHR 2013). That being so, it has also held that where acts that constitute serious offences are directed against a person’s physical or mental integrity, only efficient criminal-law mechanisms can ensure adequate protection and serve as a deterrent factor (see Identoba and Others, cited above, § 86, and the case-law cited therein). The Court has likewise accepted that criminal-law measures were required with respect to direct verbal assaults and physical threats motivated by discriminatory attitudes (see R.B. v. Hungary, no. 64602/12, §§ 80 and 84-85, 12 April 2016; Király and Dömötör v. Hungary, no. 10851/13, § 76, 17 January 2017; and Alković v. Montenegro, no. 66895/10, §§ 8, 11, 65 and 69, 5 December 2017).", "112. The Court has repeatedly held that Article 14 complements the other substantive provisions of the Convention and its Protocols; it has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Alekseyev, cited above, § 106, with further references).", "113. The Court has also reiterated that the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity (see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 28, ECHR 1999 ‑ IX; Alekseyev, cited above, § 108; and P.V. v. Spain, no. 35159/09, § 30, 30 November 2010).", "114. The Court has established in its case-law that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see, among many authorities, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV; see also Molla Sali v. Greece [GC], no. 20452/14, § 135, 19 December 2018). The Court has also repeatedly held that, just like differences based on sex, differences based on sexual orientation require “particularly convincing and weighty reasons” by way of justification. Where a difference in treatment is based on sex or sexual orientation, the State’s margin of appreciation is narrow. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States. Differences based solely on considerations of sexual orientation are unacceptable under the Convention (see, more recently, Ratzenböck and Seydl v. Austria, no. 28475/12, § 32, 26 October 2017, and the case-law cited therein).", "115. As to the burden of proof regarding discrimination, the Court has established that once an applicant has shown a difference in treatment, it is for the Government to show that it was justified (see Begheluri v. Georgia, no. 28490/02, § 172, 7 October 2014, with further references). As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII) that in proceedings before it there were no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment. As to whether statistics can constitute evidence, the Court has, in cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation, relied on statistics produced by the parties to establish a difference in treatment (see D.H and Others v. the Czech Republic, cited above, § 175).", "116. Lastly, the Court has also underlined that it is not its task to rule on the constituent elements of the offence of incitement to hatred and violence and discrimination. It is, moreover, primarily for the national authorities, in particular the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see Belkacem, cited above, § 29, with further references).", "(b) Application of the general principles to the present case", "117. The Court finds it clear that the comments on the first applicant’s Facebook page (see paragraph 10 above) affected the applicants’ psychological well-being and dignity, thus falling within the sphere of their private life. Indeed, the Government acknowledged that the comments had been deplorable for being “offensive and vulgar” (see paragraph 70 above). The fact that human dignity as a constitutional value must be protected by the State has also recently been emphasised by the Constitutional Court (see paragraph 35 above). That being so, and finding that the attacks on the applicants attained the level of seriousness required for Article 8 to come into play, the Court holds that the facts of the case fall within the scope of Article 8 of the Convention. Hence, Article 14 is applicable to the circumstances of the case (see, mutatis mutandis, Alekseyev, cited above, § 107).", "118. In the Government’s submission, the case disclosed no element of discrimination (compare and contrast Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 34, ECHR 2004 ‑ VIII, and Varnas v. Lithuania, no. 42615/06, §§ 99-102, 9 July 2013, where the Government acknowledged differential treatment), since the domestic authorities’ decision not to start a criminal investigation regarding the comments at issue had nothing to do with the applicants’ sexual orientation (see paragraph 96 above). Instead, their argument was essentially twofold: firstly, the applicants had themselves wished to provoke such a reaction, partly by using a religious symbol on the first applicant’s clothing; and, secondly, the comments at issue had not reached a level at which they could be considered criminal. Accordingly, the Court will address those arguments in turn, in order to assess whether in dealing with the applicants’ case the Lithuanian authorities discharged their positive obligations under the Convention.", "(i) As to the applicants’ allegedly provocative behaviour", "119. The Court observes that although in their application to the Court the applicants stated that the idea behind their posting of the photograph in question had been to announce the beginning of their relationship, in their subsequent observations they admitted that the photograph had been meant to incite discussion about gay people’s rights in Lithuania (see paragraph 91 above). That being so, and although the Government saw the latter fact as provocative, the Court does not view either of those reasons as illegitimate or meriting the suppression of the applicants’ rights. On the contrary, it has already held that there is no ambiguity about the member States’ recognition of the right of individuals to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their rights and freedoms (see Alekseyev, cited above, § 84). The Court also points to LGBT-friendly Vilnius’s follow-up posts on its own Facebook page in which it was stated that the applicants’ photograph had been posted to serve the aim of helping other LGBT people in Lithuania, and potentially those who were “condemned by others” and perhaps “[standing] on the roof of some house, or on the edge of a window sill or balcony”, to move “to a safer spot”. The applicants also confirmed this intention when interviewed by the LGL Association (see paragraphs 11 ‑ 12 above). While accepting the Supreme Court’s finding that the atmosphere in respect of issues concerning homosexuality is tense in Lithuania (see paragraph 22 of the ECRI report cited in paragraph 57 above; as confirmed by other international bodies, see paragraphs 63-64 above), the Court cannot view the above-mentioned intentions, as indicated by the applicants, as having threatened to cause public unrest (see paragraph 44 above; compare and contrast Donaldson, cited above, § 29). In fact, it is a fair and public debate about sexual minorities’ social status that benefits social cohesion by ensuring that representatives of all views are heard, including the individuals concerned (see, mutatis mutandis, Alekseyev, cited above, § 86).", "120. Furthermore, and even though the Government placed much emphasis on what they saw as the shape of a cross on the first applicant’s sweater in the photograph in question (see paragraph 94 above), the Court must note that this argument was not the subject of any analysis whatsoever, either by the prosecutor or by the courts at two levels of jurisdiction which ruled that the thirty-one comments referred to them by the LGL Association did not constitute a crime. In this context the Court notes the applicants’ view that that argument by the Government was “additional” and “distracting”, also given that the Government could only point to a single religion-related comment (see paragraph 90 above). As the Court does not consider it necessary to take a position on this view of the applicants, it suffices to note the Constitutional Court’s case-law to the effect that Lithuania is a secular State where there is no State religion (see paragraph 38 above). That being so, it appears that the criminal courts which examined the applicants’ case focused on what they saw as the applicants’ “eccentric behaviour”, the argument which the Court will address next.", "121. The Court thus observes that the Klaipėda District Court considered that the picture of two men kissing did not contribute to social cohesion and the promotion of tolerance (see paragraph 21 above). That view was fully endorsed by the Klaipėda Regional Court, which also found that it would have been preferable if the applicants had only shared such pictures among “like-minded people”, since the Facebook social network allowed such a possibility (see paragraph 23 above). Given those express references to the applicants’ sexual orientation, it is clear that one of the grounds for refusing to open a pre-trial investigation was the courts’ disapproval of the applicants’ demonstrating their sexual orientation (compare and contrast Bączkowski and Others, cited above, §§ 95 and 97).", "122. The Court furthermore refers to the Klaipėda District Court’s statements that “the majority of Lithuanian society very much appreciate[d] traditional family values”, according to which “family, as a constitutional value, [was] the union of a man and a woman”, which that court found to be supported by the Constitution and the Constitutional Court’s case-law (see paragraph 21 above). The Court has already considered a similar argument in Kozak v. Poland (no. 13102/02, § 98, 2 March 2010). In that case it accepted that the protection of the family in the traditional sense was, in principle, a weighty and legitimate reason that might justify a difference in treatment. However, in pursuance of that aim a broad variety of measures might be implemented by the State. Moreover, given that the Convention is a living instrument, to be interpreted in the light of present-day conditions, the State, in its choice of means designed to protect the family and to secure, as required by Article 8, respect for family life, must necessarily take into account developments in society and changes in the perception of social, civil status and relational issues, including the fact that there is not just one way or one choice in the sphere of leading and living one’s family or private life. In the present case, although the Klaipėda District Court cited the alleged incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality, the Court sees no reason to consider those elements to be incompatible, especially in view of the growing general tendency to view relationships between same-sex couples as falling within the concept of “family life” (see Bayev and Others v. Russia, nos. 67667/09 and 2 others, § 67, 20 June 2017).", "123. The Court also has particularly strong reservations as to the validity of the latter element (that is to say, what constitutes a family), since as far back as 2011 the Constitutional Court underlined that while marriage was a union between a man and a woman, the concept of family was not limited to the union of two such persons (see paragraph 34 above). This was confirmed by the Constitutional Court in 2019 when examining questions related to two persons of the same sex living in two different countries who wished to be reunited in Lithuania (see point 32.5 in paragraph 36 above). In the latter ruling the Constitutional Court also underlined not only the fact that under the Lithuanian Constitution “the concept of family [was] neutral in terms of gender” but also that “the Constitution [was] an anti-majoritarian act” and that the views of the majority could not override those of the minority (see points 31.3 and 32.5 in paragraph 36 above). The Court, for its part, has also held that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority. Were this so, a minority group’s rights would become merely theoretical rather than practical and effective, as required by the Convention (see, mutatis mutandis, Alekseyev, cited above, § 81, and the case-law cited therein).", "124. Taking into account all the evidence, the Court thus considers it established that the applicants have made a prima facie case that their homosexual orientation played a role in the way they were treated by the State authorities (see, mutatis mutandis, Begheluri, cited above, § 176, and the case-law cited therein). It therefore remains for the Court to determine whether the Government have sufficiently demonstrated that the way the national authorities assessed the relevant facts, as presented in the criminal complaint lodged by the LGL Association, was acceptable (see paragraph 116 above). In particular, the Court is called upon to determine whether the decision by the prosecutor to discontinue the criminal investigation, subsequently confirmed by the national courts, was motivated by a discriminatory attitude and stereotypes related to sexual orientation (see, mutatis mutandis, Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, 25 July 2017).", "(ii) As to the assessment by the domestic authorities of whether the comments constituted a crime under Article 170 of the Criminal Code", "125. On the facts of this case, the Court notes, firstly, the prosecutor’s view that the authors of the comments, including those stating that “it’s not only the Jews that Hitler should have burned” and that “faggots ... [should be thrown] into the gas chamber” or “into the bonfire” or have “a free honeymoon trip to the crematorium”, or have “their heads smash[ed]” or be “castrated” or be “[shot]”(see paragraph 10 above), had acted “unethically” but that such “amoral behaviour” had not reached the threshold required by Article 170 §§ 2 and 3 of the Criminal Code (see paragraph 18 above). The Klaipėda District Court came to the same conclusion, finding that those comments were mere “obscenities” and the commenters had simply “chosen improper words” (see paragraph 20 above). However, while being careful not to hold that each and every utterance of hate speech must, as such, attract criminal prosecution and criminal sanctions (see paragraph 116 above), the Court is unable to subscribe to the conclusions of the Lithuanian authorities. The Court reiterates its finding that comments that amount to hate speech and incitement to violence, and are thus clearly unlawful on their face, may in principle require the States to take certain positive measures (see, mutatis mutandis, Delfi AS, cited above, §§ 153 and 159). It has likewise held that inciting hatred does not necessarily entail a call for an act of violence or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner (see Vejdeland and Others v. Sweden, no. 1813/07, § 55, 9 February 2012). Moreover, the Court cannot but observe that other comments, even without calling for violence, regarding the Jews (see paragraph 52 above) have been treated by the Lithuanian authorities as falling under Article 170 of the Criminal Code. It also considers that the Government have not provided weighty arguments to refute the applicants’ view that if comments such as those uttered in their case did not amount to inciting not only hatred but even violence on the basis of the applicants’ sexual orientation, then it is hard to conceive what statements would (see paragraphs 19 and 87 above). Therefore, the Court, sharing the view of the Constitutional Court that the attitudes or stereotypes prevailing over a certain period of time among the majority of members of society may not serve as justifiable grounds for discriminating against persons solely on the basis of their sexual orientation, or for limiting the right to the protection of private life (see point 31.3 in paragraph 35 above), considers that the assessment made in this case by the national authorities was not in conformity with the fundamental principles of a democratic State governed by the rule of law (see also, mutatis mutandis, Carvalho Pinto de Sousa Morais, cited above, § 46, and Biao v. Denmark [GC], no. 38590/10, § 126, 24 May 2016).", "126. Secondly, the Government also relied on the prosecutor’s finding that the comments lacked a “systematic character”, since most of the comments referred by the LGL Association to the prosecutor had been written by different people (see paragraph 18 above). The Court again cannot subscribe to this argument. It notes that the Lithuanian courts’ practice on this issue is not uniform, in that while the courts sometimes ascribe importance to an accused posting numerous discriminatory comments and find him or her guilty under Article 170 of the Criminal Code (see paragraphs 52-53 above), in other cases the making of a single discriminatory comment is sufficient to attract criminal liability (see paragraphs 46-49 and 54 above). In this context the Court, while acknowledging that it is not its task to take the place of the domestic courts to resolve problems of interpretation of domestic legislation (see, among many authorities, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011), does not disregard the argument that the LGL Association put forward in the domestic proceedings (see paragraph 19 above), namely that the number of comments could constitute a circumstance determining the gravity of the crime or the extent of the culprit’s criminal liability, but that it did not constitute an indispensable element of the crime under the above-mentioned provision of the Criminal Code.", "127. The Court also notes the Klaipėda District Court’s finding that the post on the first applicant’s Facebook page and the comments under it were in the “public sphere” (see paragraph 21 above), which was one of the necessary constitutive elements of a crime under Article 170 of the Criminal Code. The potential reach of comments on the Internet, as well as the danger they may cause, especially when published on popular Internet websites, has also been underlined by the Lithuanian Supreme Court (see paragraph 44 above). For its part, the Court has also held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. At the same time, in considering the “duties and responsibilities” of those posting such information, the potential impact of the medium concerned is an important factor (see, mutatis mutandis, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 56, with further references). Accordingly, the Court does not find it unreasonable to hold that the posting of even a single hateful comment, let alone a comment that such persons should be “killed”, on the first applicant’s Facebook page was sufficient to be taken seriously. This is further supported by the fact that the photograph had “gone viral” online and received more than 800 comments (see paragraph 10 above). The ECRI report on Lithuania also indicates that the country “has a problem” and that most hate speech takes place on the Internet, and also on social networks (see paragraph 56 above; see also paragraphs 26-27 of the report, cited in paragraph 57 above). The Court therefore also rejects the Government’s argument that comments on Facebook are less dangerous than those on Internet news portals (see paragraph 98 above). Neither can it see as pertinent the Government’s argument that the people who commented negatively on the Facebook page of the first applicant had not outnumbered the applicants and their supporters (see paragraph 97 above).", "128. The Court has already pointed out that criminal sanctions, including against the individuals responsible for the most serious expressions of hatred inciting others to violence, could be invoked only as an ultima ratio measure (see paragraph 111 above; on the Klaipėda Regional Court’s position in the applicants’ case that criminal proceedings were an ultima ratio measure, see paragraph 23 above). It considers that this applies equally to hate speech against a person’s sexual orientation and sexual life. The Court observes that the instant case concerns undisguised calls for attacks on the applicants’ physical and mental integrity (see, in this context, Panayotova and Others v. Bulgaria (dec.), no. 12509/13, §§ 58-59, 7 May 2019, with further references), which require protection by the criminal law (see paragraph 111 above). Article 170 of the Criminal Code does indeed provide for such a protection (see paragraph 30 above). However, owing to the Lithuanian authorities’ discriminatory attitude, the provisions of this Article were not applied in the applicants’ case, and the requisite protection was not granted to them. The Court considers that in the circumstances of this case, it would have been manifestly unreasonable for the victims, and would also have downplayed the seriousness of the impugned comments, to require the applicants to exhaust any other remedies. Accordingly, the Government’s objection to the effect that the applicants could have had recourse to other – civil law – remedies (see paragraphs 70 and 82 above) must be dismissed.", "(iii) Conclusion", "129. Having regard to all the material at hand, the Court thus finds it established, firstly, that the hateful comments, including undisguised calls for violence by private individuals directed against the applicants and the homosexual community in general, were prompted by a bigoted attitude towards that community and, secondly, that the very same discriminatory state of mind was at the core of the failure on the part of the relevant public authorities to discharge their positive obligation to investigate in an effective manner whether the comments regarding the applicants’ sexual orientation constituted incitement to hatred and violence; by downplaying the seriousness of the comments, the authorities at the very least tolerated them (see, mutatis mutandis, Begheluri, cited above, § 179). In the light of these findings, the Court also considers it established that the applicants suffered discrimination on the grounds of their sexual orientation. It further considers that the Government did not provide any justification showing that the impugned distinction was compatible with the standards of the Convention (see also Alekseyev, cited above, § 109).", "130. Accordingly, the Court holds that in the present case there has been a violation of Article 14 of the Convention taken in conjunction with Article 8.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "131. The applicants complained that the authorities had not responded effectively to their complaints of discrimination on account of their sexual orientation.", "The relevant provision of the Convention reads:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "A. Admissibility", "132. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties’ submissions", "(a) The applicants", "133. The applicants complained that the State had failed to effectively respond to their complaint of having been discriminated against on account of their sexual orientation.", "134. The applicants submitted that instances of hate speech struck at the core of the Convention protections. In addition to violating the psychological and moral integrity of the applicants, they created an environment of intimidation that undermined the right to personal autonomy and self-determination. Given that the comments posted under the photograph on the first applicant’s Facebook page had included insulting language (such as “faggots” and “perverts”), the homophobic implication of their authors’ speech had been evident. Furthermore, the applicants had been threatened with serious harm and even subjected to death threats in comments that had contained such exhortations as “burn them”, “exterminate them” and “kill them”. Reading the comments, the applicants had been placed in a situation of intense fear and anxiety, which had continuously affected their daily lives and routines. The aim of the verbal abuse had evidently been to frighten the applicants so that they would desist from publicly displaying their affection for each other and from supporting the LGBT cause through their increased visibility.", "135. The applicants stated that as of December 2014 they had been deprived of an effective legal remedy in the form of criminal proceedings, addressing the extreme instances of homophobic hate speech online. As a result of the Lithuanian authorities’ refusal to protect them, they had suffered not only from feelings of fear and emotional distress but had also faced problems in their respective educational institutions. They had been singled out and verbally harassed in public spaces and had received a number of threatening private messages in their social network mailboxes. The causal link between the State’s failure to launch an effective pre-trial investigation regarding the above-mentioned instances of hate speech and the resulting atmosphere of impunity, which had led to subsequent attacks on the applicants, was self-evident. Those subsequent incidents had not been reported to the police, because the applicants had lost faith in the effectiveness of the Lithuanian law-enforcement system after the unsuccessful attempt to have a pre-trial investigation launched in relation to the initial hateful comments.", "136. The applicants considered that in this particular case the Lithuanian authorities’ refusal to open a pre-trial investigation reflected the general attitude in Lithuania towards alleged instances of homophobic online hate speech. For example, in the period between 2013 and 2015, the LGL Association had submitted twenty-four complaints to law-enforcement authorities in relation to 206 instances of alleged online hate speech. On the basis of those complaints, twenty-eight pre-trial investigations had been initiated in 2013, thirteen in 2014 and eight in 2015. Interestingly enough, all of those pre-trial investigations had been either suspended or terminated, and thus had not led to the actual identification or punishment of the alleged perpetrators. The three main reasons for that had been: (a) the failure to identify the individual who had committed the criminal offence in question; (b) the failure to establish the constitutive elements of a criminal offence; and (c) the fact that the IP address in question had belonged to a foreign jurisdiction. Moreover, between 2013 and 2015 several requests for the launch of a pre-trial investigation had been refused altogether. It could therefore be concluded that the Lithuanian authorities had systemically failed to provide an effective remedy for alleged victims of homophobic online hate speech.", "137. The applicants insisted that the circumstances of the present case should be assessed in the light of the complex social realities in Lithuania, which at best could be described as being hostile towards LGBT individuals. This was clear from the results of a survey conducted by the European Union Agency for Fundamental Rights in 2013, according to which Lithuania was the most homophobic and transphobic society in the European Union, with the highest average number of violent incidents against LGBT people (see paragraph 63 above). For the applicants, the latter indicator was especially worrisome since it had been established that the prevalence of unpunished hate speech eventually led to actual acts of violence against individuals belonging to certain socially vulnerable groups (see paragraph 28 of the ECRI report cited in paragraph 58 above).", "(b) The Government", "138. The Government stated that the case-law of the domestic courts as regards the application of Article 170 of the Criminal Code, although not abundant, was nevertheless clear and settled. Basic principles regarding the application of Article 170 had been formulated by the Supreme Court. Moreover, the methodological recommendations issued by the Prosecutor General’s Office were also of great value when considering applications for the institution of pre-trial proceedings concerning any acts potentially falling under that provision (see paragraph 31 above).", "139. As a result, there were examples of cases in which a pre-trial investigation had been initiated and the people responsible for the crimes concerned had been brought to justice in district courts (see paragraph 54 above). Moreover, owing to measures taken by the law-enforcement institutions, there were numerous examples of cases in which a pre-trial investigation had been started on the basis of Article 170 of the Criminal Code and the persons responsible had been found guilty and convicted. Those numbers ranged from 131 pre-trial investigations opened in 2010 on the grounds of sexual orientation, to two such investigations opened in 2017. The Government also pointed out the decreasing number of cases being considered under that provision of the Criminal Code as regards any grounds, that is to say, not only as regards grounds of sexual orientation. That trend was also the result of preventive and educational measures taken by the State and was not due to any alleged mistrust of persons in State institutions.", "The Government also submitted that sometimes victims of hate crimes could obtain pecuniary compensation as a result of the satisfaction of a civil claim within criminal proceedings, should the culprit in question be convicted under Article 170 of the Criminal Code.", "140. The Government also specified that between 2013 and 2017 the LGL Association had lodged an application on thirty occasions with the prosecutor’s office for the initiation of a pre-trial investigation; on one occasion it had lodged an application for the reopening of a suspended investigation. Having considered those requests, the prosecutors concerned had refused to initiate a pre-trial investigation in only three cases. As regards the remaining twenty-seven cases in which a pre-trial investigation had been opened, one of them was still being pursued, one had been discontinued for failure to establish the constitutive elements of a crime, and twenty-five investigations had been suspended because all possible measures to establish the identity of the people who had committed the crimes in question had been exhausted and unsuccessful, since, as a rule, the IP addresses in question had been in another State. In that connection, it had to be specified that hate crimes were distinguished by their having been committed in cyberspace; thus, the establishment of the IP address of a perpetrator could even depend on the will of other States to cooperate with Lithuanian authorities.", "141. The Government could not agree with the statement of the third-party interveners regarding the allegedly negative attitude of the judicial institutions in general and in the two Supreme Court rulings in particular (see paragraph 148 below). In fact, the Lithuanian courts, when considering cases related to alleged discrimination and hate speech, based their decisions on international standards in this field, including the Court’s case-law (the Government specifically referred to the Supreme Court’s ruling of 3 October 2017 in case no. 2K-86-648/20016, see paragraph 47 above). Moreover, so-called “traditional values” – referred to by the third-party interveners in their observations – had never resulted in the acquittal of a person in a hate-speech case, since acquittals, including in the applicants’ case, had instead been based on the lack of any of the constitutive elements of a crime. In that context, the Government also disagreed with the third-party interveners’ assessment of the Supreme Court’s ruling of 18 December 2012 (see paragraphs 39-43 above, and paragraph 148 below), and claimed that the term “eccentric behaviour” therein referred not to the participants’ sexual orientation, but to the unauthorised form in which they had expressed those ideas – namely, their unauthorised demonstration next to the Seimas. Similarly, the Supreme Court’s ruling of 1 March 2016 also could not be seen as hostile to homosexual people, since in that case the Supreme Court had had regard not only to the general social context, but also to the particular context in which the comment had been made, and the person had thus been acquitted for lack of any of the constitutive elements of a crime (see paragraphs 44-45 above).", "142. In addition, in cooperation with international organisations, a number of training sessions for law-enforcement officials on how to recognise and respond to hate crimes had been organised. Some 400 police officers and fifty prosecutors had taken part in those training sessions in 2015 and 2016. The Inspector had also held training sessions for the police which had included a discussion of issues related to conducting research into the incitement of hatred on the Internet. The Inspector had also taken an active part in a variety of training sessions for the media to help to enable them to spot hate speech and to avoid allowing people to use the media to propagate it.", "143. The Government submitted, lastly, that the State’s obligation to investigate possible discriminatory motives for a violent act constituted an obligation to use its best endeavours; it was not absolute. In the applicants’ case, however, no constitutive elements of a crime had been established.", "(c) The third-party interveners", "144. The third-party interveners pointed out that LGBT people were acknowledged to constitute one of the most vulnerable social groups in Lithuania, as confirmed by the results of representative surveys conducted at international level. They referred, in particular, to the survey conducted by the European Union Agency for Fundamental Rights and to the Eurobarometer statistics (see paragraphs 63-64 above).", "145. At the domestic level, an online survey conducted by the national LGBT Association in 2016 had found that, on account of their sexual orientation, 50% of respondents had reported having been victims of hate speech or hate crimes within the previous twelve months. However, only 14% of those respondents had reported the incidents to the law-enforcement authorities.", "146. Consequently, the official figures for offences reported to the police did not speak to the real scale of anti-LGBT speech in Lithuania. Prejudicial attitudes on the part of the law enforcement and judicial authorities, including their failure to acknowledge the bias-related nature of a crime or their refusal to register – let alone investigate – reported incidents were among the main reasons cited by victims of homophobic hate speech to explain their decision not to report hate-speech cases.", "147. It was also noteworthy that over 90% of all hate-speech cases in Lithuania were related to the online environment.", "148. The third-party interveners also referred to the Supreme Court’s rulings of 18 December 2012 and 1 March 2016, which they saw as indicative of the prejudicial nature of the law-enforcement institutions’ attitude towards the LGBT community. In those rulings, the Supreme Court had focused on LGBT persons’ behaviour – finding it to be “provocative” or contravening “traditional family values” – instead of analysing the impugned hate-speech statements in question or the general social context, in order to justify acquittals (see paragraphs 39-45 above). This practice of the Supreme Court had been condemned by ECRI in its 2016 report, in which Lithuania had been urged to take steps towards preventing the notion of “protecting public morals” from being used to justify or condone incitement of hatred against LGBT people (see paragraph 31 of the ECRI report, cited in paragraph 58 above). Ultimately, as a vast majority of hate-speech incidents against LGBT persons remained unreported and unprosecuted, the phenomenon itself continued to spread.", "2. The Court’s assessment", "(a) General principles", "149. The Court reiterates that the effect of Article 13 is to require the provision of a domestic remedy allowing the relevant national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision (see Alekseyev, cited above, § 97). The Court has also held that the provisions of the Convention must be interpreted and applied in a manner which renders their safeguards practical and effective, not theoretical and illusory (see, more recently, Mihalache v. Romania [GC], no. 54012/10, § 91, 8 July 2019). In order to be effective, the remedy required by Article 13 must be available in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see De Souza Ribeiro v. France [GC], no. 22689/07, § 80, ECHR 2012).", "150. In the present case the Court has found that the applicants’ rights under Article 14 taken in conjunction with Article 8 were infringed (see paragraph 130 above). Therefore, they had an arguable claim within the meaning of the Court’s case-law and were thus entitled to a remedy satisfying the requirements of Article 13.", "(b) Application to the instant case", "151. At the outset, the Court notes that it does not call into question that the Lithuanian criminal law, in particular Article 170 of the Criminal Code, and criminal justice system, including the courts, provide for a remedy which is generally effective for the purposes of Article 13 of the Convention. However, in the present case, the applicants alleged that the authorities had not responded effectively to their complaints of discrimination on account of their sexual orientation (see paragraph 131 above). The Court is therefore called upon to determine whether Article 13 of the Convention can be infringed in situations where generally effective remedies are considered not to have operated effectively in a particular case due to discriminatory attitudes negatively affecting the application of national law. In this regard, the Court notes that in cases involving complaints under Article 13 based on allegations of discriminatory attitudes affecting the effectiveness of remedies in the application of generally applicable national laws, it has usually not considered it necessary to examine the complaints separately under that provision if a violation of Article 14, taken together with other Convention provisions, has already been found (see, in particular, Opuz v. Turkey, no. 33401/02, § 205, ECHR 2009).", "In the present case, and considering the nature and substance of the violation found in the applicants’ case on the basis of Article 14 taken in conjunction with Article 8, the Court finds that a separate examination of the applicants’ complaint is warranted. In its assessment, the Court will have regard to general developments in the case-law of the national courts, to conclusions by international monitoring bodies reviewing the issue of discrimination on the grounds of sexual orientation in Lithuania and to statistical information provided by the Government, the applicants, the third-party interveners and international bodies.", "152. With regard to the material provided by the Government (see paragraph 54 above), the Court acknowledges that in the cases cited the district courts, that is, the courts of first instance, reached guilty verdicts regarding discriminatory and homophobic comments on the Internet, as well as other types of homophobic behaviour. That being so, and in so far as the applicants’ case is concerned, the Court cannot turn a blind eye to the fact that in reaching the conclusion that the comments at issue had been merely “unethical” and “immoral”, the prosecutor relied on the practice of the Supreme Court to the same effect (see paragraphs 18 and 39-41 above). Indeed, in two cases concerning homophobic hate speech, the Supreme Court reached verdicts exculpating those on trial (see paragraphs 39-45 above; compare and contrast the position of the lower courts, indicated in paragraphs 49-51 and 54 above). The Court notes that in its ruling of 18 December 2016, the Supreme Court had recourse to two dictionaries to reach the conclusion that calling people of homosexual orientation names such as “perverts” and “reprobates” who should “be urgently sent to a psychiatric hospital” was negative and demeaning, but that the use of those names did not call for the application of Article 170 of the Criminal Code, which establishes criminal liability for discrimination, inter alia, on the basis of sexual orientation (see paragraphs 39 and 42 above). The Court notes with concern the emphasis in the Supreme Court’s ruling on the “eccentric behaviour” or the supposed duty of persons belonging to sexual minorities “to respect the views and traditions of others” in exercising their own personality rights (see paragraph 41 above).", "At the same time, the Court recognises that the reliance by the prosecutor in the present case on the case-law of the Supreme Court ignored significant differences in the level of gravity of the homophobic speech at stake in this case compared to expressions examined by the Supreme Court in previous judgments which were clearly less grave. As the Government have not provided a single verdict by the Supreme Court showing that the trend of interpretation, which was perceived by the prosecutor as rather lenient towards those accused of hate speech against homosexuals, has been reversed, it does not appear that the Supreme Court has had an opportunity to provide greater clarity on the standards to be applied in hate-speech cases of comparable gravity. In that context the Court notes the statutory obligation on the domestic courts to take into account the Supreme Court’s case-law (see also Orlen Lietuva Ltd. v. Lithuania, no. 45849/13, §§ 33-35, 29 January 2019). Accordingly, the Court finds that the manner in which the case-law of the Supreme Court was applied by the prosecutor, whose decision was upheld by the domestic courts which examined the applicants’ case, did not provide for an effective domestic remedy for complaints of homophobic discrimination.", "153. As regards the Government’s reliance on the role of the Inspector, the Court observes that although in one of the cases referred to by the parties the Inspector reached a conclusion that was instrumental in a conviction for hate speech (see paragraph 51 above), it was also criticised by ECRI for upholding so-called “traditional values” as a basis for supporting intolerance (see paragraph 61 above; see also the results of the Eurobarometer survey in paragraph 64 in fine above). Similarly, on the facts of the case, and taking into account the gravity of the threats uttered by the Internet commenters, the Court has already found that a civil-law remedy, or the referral of such comments to the Inspector (see paragraph 70 above), did not constitute remedies that had to be exhausted (see paragraph 128 above).", "154. On the facts of the present case the Court also notes the prosecutor’s finding that the majority of the persons who had posted hate-inciting comments, including those directly calling for violence, on the first applicant’s Facebook profile had used their own personal profiles (see paragraph 18 above). Accordingly, it cannot find, at least in this case, that the failure to establish the identity of those persons and bring them to justice was impossible on account of any technical limitations, even if the Lithuanian authorities had been willing to do so (see paragraph 140 above).", "155. The Court cannot but find that the statistics provided both by the Government and the applicants, as well as those by the third-party interveners and international bodies, show otherwise. Firstly, even acknowledging that between 2012 and 2015 some thirty pre-trial investigations regarding homophobic hate speech were opened in Lithuania, one cannot overlook the fact that all of them were discontinued, mostly because the culprits could not be found (see paragraph 139 above). As ECRI noted in 2016, the growing level of intolerance against sexual minorities has remained largely unchecked (see paragraph 56 above). That being so, the Court also gives weight to the applicants’ argument that in view of the law-enforcement authorities’ practice in this regard – and also in response to the outcome of their own case – they had not felt like complaining to the law-enforcement agencies again (see also paragraph 53 of the ECRI report, cited in paragraph 59 above). In fact, in the applicants’ case the Regional Court even considered that to open criminal proceedings would have been a “waste of time and resources” (see paragraph 23 above). As put forward by the applicants and the third-party interveners, who also relied on the ECRI report (see paragraphs 136 and 148 above), this prejudicial attitude of the domestic court is fraught with the risk that Article 170 of the Criminal Code could become a “dead letter” that, in the words of the LGL Association, the law-enforcement authorities chose not to apply “by giving unjustified preference to freedom of expression, or perhaps owing to other motives which, although not related to law, had an influence on law” (see paragraph 19 above). Secondly, the Court takes notes of the information regarding the Lithuanian law-enforcement institutions’ failure to acknowledge the bias motivation of such crimes and to take an approach which would be appropriate to the seriousness of the situation (see paragraphs 54 ‑ 55 of the ECRI report, cited in paragraph 59 above; see also paragraphs 57-58 of that report, cited in paragraph 60 above). In this connection the Court reiterates that it has already held in Identoba and Others (cited above, § 77) that without such a strict approach on the part of the law-enforcement authorities, prejudice-motivated crimes would unavoidably be treated on an equal footing with ordinary cases without such overtones, and the resultant indifference would be tantamount to official acquiescence or even connivance in hate crimes. Regarding Lithuania, the most recent ECRI materials also show a lack of a comprehensive strategic approach on the part of the authorities to tackle the issue of racist and homophobic hate speech (see paragraph 62 above).", "156. In the light of the foregoing, the Court holds that, despite one-off cases showing otherwise (see paragraph 54 above), the applicants have been denied an effective domestic remedy in respect of their complaint concerning a breach of their right to respect for their private life, on account of their having been discriminated against because of their sexual orientation. Consequently, the Court concludes that there has been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "157. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "158. The applicants each claimed 5,000 euros (EUR) in respect of non-pecuniary damage.", "159. The Government submitted that the applicants’ claim was unsubstantiated.", "160. The Court accepts that the applicants suffered distress and frustration on account of the violations of their rights under Articles 8, 13 and 14 of the Convention. The resulting non ‑ pecuniary damage would not be adequately compensated for by the mere finding of those breaches (see, mutatis mutandis, Identoba and Others v. Georgia, no. 73235/12, § 110, 12 May 2015). Having regard to the relevant circumstances of the case and the principle of ne ultra petitum (see Nagmetov v. Russia [GC], no. 35589/08, § 71, 30 March 2017, with further references), as well as to equity considerations, the Court finds it appropriate to grant each of the applicants’ claims in full.", "B. Costs and expenses", "161. The applicants noted that as they had been represented on a pro bono basis by the national LGBT rights organisation before the Lithuanian courts, they did not wish to claim any costs and expenses in relation to the proceedings at the national level. However, they claimed EUR 5,000 in respect of the costs and expenses incurred before the Court.", "162. The Government considered that the sum claimed was rather excessive.", "163. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court.", "C. Default interest", "164. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The applicants’ names, years of birth or establishment and place of residence are listed in the Appendix below. They were represented by Ms R.I. Ionescu, a lawyer practising in Bucharest.", "3. The Government were represented by their Agent, most recently Ms O.F. Ezer of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "The incident of 20 February 2013", "5. In February 2013, the applicant association, ACCEPT – an organisation promoting the interests of lesbian, gay, bisexual and transgender people (LGBT) in Romania – organised a series of cultural events to celebrate LGBT History Month. The programme included the screening, on 20 February 2013, at 6 p.m., of a movie portraying a same-sex family, in a cinema situated in the National Museum for the Romanian Peasant (“the Museum”) in Bucharest. The screening was meant to be followed by a discussion among the screening attendees, inspired by the movie, about the rights of same-sex families.", "6. On 20 February 2013 the applicant association became aware that an “online mobilisation” was taking place on social media platforms calling for a counter-demonstration later in the evening, during the screening at the Museum. The applicant association’s representative phoned the police and subsequently, upon advice from the police, sent a written request for protection.", "7. Ten police officers from Bucharest police station no. 2, together with the head of that station, arrived on the premises to provide protection. They were later joined by a team of seven gendarmes who had been alerted by the director of the Museum via the national emergency number (112) and arrived as reinforcements in order to prevent any escalation. The police officers and gendarmes entered the building in which the cinema was situated, but remained in the corridor outside the screening room.", "8. About twenty people attended the public screening, including the individual applicants (the second, third, fourth, fifth and sixth applicants). Entrance was free, but most of the participants had been invited by the applicant association to attend. Fifty more people entered the screen room, some of them carrying flagpoles.", "9. According to the applicants, the newcomers disturbed the screening by shouting remarks such as “ death to homosexuals ”, “ faggots ” or “ you filth ”, and insulting and threatening attendees of the screening, including the individual applicants. Some of the intruders displayed fascist and xenophobic signs and brandished the flag of Everything for the Country ( Totul pentru ţară ), a Romanian far-right party. In 2015 that party was dissolved by court order. The intruders seemed to be associated with a far ‑ right movement, the New Right ( Noua Dreaptǎ ), which is active in political life and is openly opposed, among other things, to same-sex marriage and same-sex adoptions (for further details on these movements, see paragraph 43 below).", "10. The organisers alerted the police officers who had been stationed outside the screening room. The latter entered the room, confiscated some flags from the intruders and then left the room, despite the organisers’ request to remain.", "11. The intruders opposed the screening as they considered that the movie damaged national dignity because of its homosexual theme, a feeling that had been aggravated by the choice of venue – a place of history and tradition. They blocked the projector, so the screening could not continue. The organisers halted the screening and switched the lights on.", "12. As people started leaving the room, the police officers stationed in the corridor checked the identity papers of twenty-nine individuals, the majority of them from the group opposing the screening. By 7.50 p.m. everyone had left the venue.", "13. The report concerning the incident of 20 February 2013, written by the head of the gendarme team, reads as follows in so far as relevant:", "“At about 6.10 p.m. I was called by the [Bucharest Directorate General of Gendarmerie] to go to [the Museum] – where a movie was being screened by the association ACCEPT – because some members of the ‘New Right’ had entered the premises with a view to blocking the screening through any means.", "We arrived at 6.13 p.m. and I talked with [G.P.], the head of the police station, which had deployed [to the Museum] two uniformed police officers and six-seven [police officers] wearing civilian clothes. When we arrived, the screening had already started. In the room were present approximately sixty-seventy people (forty-fifty people ... from the ‘New Right’ and twenty people from the ACCEPT association). After a few minutes, those from the ‘New Right’ started booing, waving the national flag, and singing the national anthem, blocking the screening (6.18 p.m.). We monitored the situation from the corridor of the cinema, lending our support to the police officers, in order to avoid any possible altercations. At about 7.10 p.m. the people in the cinema room started leaving the premises. The police officers decided to verify the identity of the people present and asked us to help. [The identities of] twelve people were verified by the gendarmes and of eleven more by the police.", "At about 7.35 p.m., [G.P.] decided to allow to leave those people who refused to present their identity papers.”", "14. The gendarmes’ report also listed the names and personal identification numbers of the twelve individuals identified by the gendarmes. In a separate report dated 24 February 2013 addressed to the General Inspectorate of the Romanian Gendarmerie, the head of the gendarme team present during the incident wrote a detailed depiction of several of the individuals identified and noted that they had belonged to the New Right and had been opposed – because of their religious and “moral” beliefs – to the event organised in the Museum.", "15. On 21 February 2013 the police drafted a report on the incident, stating, in so far as relevant, as follows:", "“Entrance to the event was free, and present in the auditorium were both representatives of the ACCEPT association and sympathisers of the ‘New Right’ movement, who were not exhibiting any insignia of that organisation. In the auditorium were thus present about sixty-seventy people, of whom forty-fifty belonged to the New Right movement.", "After the movie started, some participants started causing a commotion ...", "Eventually the screening was stopped, the light was switched on and the majority of those present expressed their indignation that the film was being screened in [the Museum]. They considered that the film was inappropriate because it had homosexual undertones and thus harmed the national honour. They expressed their indignation that the event had been organised in [the Museum] and not in a different place with less history and tradition.", "The participants engaged in discussions about sexual orientation, and religious and nationalist issues, and the sympathisers of the ‘New Right’ sang the national anthem and patriotic and religious songs.", "No acts of violence occurred during the combative discussions between the two groups.", "In order to prevent negative incidents between the participants, the head of police station no. 2, and ten police officers came to the location, as well as a team of seven gendarmes, who [together] took preventive measures.", "The event ended after approximately sixty minutes, and it was not necessary to intervene by force to evict the participants. At the museum exit, the identity papers of twenty-nine individuals were checked, most of them showing dissatisfaction at being checked in an operation that they considered to be illegal.”", "16. The screening was rescheduled and took place in the same location on 10 March 2013 without incident.", "Criminal complaint", "17. On 5 March 2013 the applicant association lodged a criminal complaint about the incident with Bucharest police section no. 2, alleging incitement to discrimination, abuse of office by the restriction of rights, and the displaying of fascist, racist or xenophobic symbols in public. The complaint relied on Articles 247 and 317 of the Criminal Code (“the CC”), as in force at that time (see paragraph 36 below), was directed against the police officers and private individuals, and was lodged on behalf of ten individuals (including the individual applicants) who had participated in the screening of 20 February 2013. Those individuals complained that unidentified individuals had interrupted the screening, uttered threats, displayed fascist symbols, and filmed, photographed and videotaped the participants without their permission. They furthermore complained that the authorities had failed to take adequate measures to prevent and stop the behaviour of the violent group and to allow the victims’ peaceful assembly to continue. The applicant association argued that those acts had been motivated by hatred towards homosexuals. The applicant association appended information about the alleged perpetrators – details which, it believed, would contribute to the identification of the perpetrators and the roles that they had played in the incident. The applicant association also attached to the complaint a video of the incident, which had been posted on the Internet.", "18. On 17 March 2013 the prosecutor’s office attached to the Bucharest District Court determined that it had no jurisdiction to deal with the complaint and forwarded it to the prosecutor’s office attached to the Bucharest County Court; on 27 February 2014 the prosecutor’s office attached to the Bucharest County Court – noting that the case also concerned military personnel (that is to say the gendarmes) – forwarded the complaint to the military prosecutor’s office attached to the Bucharest County Court.", "19. On 31 March 2014 the military prosecutor’s office opened a criminal investigation in respect of the case.", "20. On 13 May 2014 D.P.P., a member of the applicant association, was interviewed by the military prosecutor. She stated that on 20 February 2013, about two hours before the start of the screening, she had received an email alerting her that a certain I.C. had posted on his social media page information to the effect that a group of individuals opposing the event would attend the screening in order to voice their opposition. She had called and then written to the police to request protection during the event. She furthermore declared that after the event, when the ACCEPT members had been leaving the premise, the intruders had continued to shout abuse at them.", "21. G.P., the head of police station no. 2 (see paragraph 13 above), was heard on 18 June 2014. He reiterated that the intruders had made allegations that the screening was hurting the national honour and went against history and tradition. He declared that they may well have been supporters of extreme-right organisations but that they had not worn any distinct insignia of such organisations.", "22. In a decision of 24 June 2014 the military prosecutor’s office found that the gendarmes had been unable to create an action plan for dealing with the incident of 20 February 2013 because the applicant association had failed to seek the necessary pre-authorisation for that event. The prosecutor found that the gendarmes had complied with their obligations; the prosecutor then concluded the investigation in that respect. The prosecutor sent the case file to the prosecutor’s office attached to the Bucharest District Court in order that the latter might continue the investigation concerning the police officers involved. No mention was made in that decision of the individuals who had interrupted the event.", "23. On 4 September 2014 the prosecutor’s office attached to the Bucharest District Court forwarded the case file to the prosecutor’s office attached to the Bucharest Court of Appeal. It relied on a ruling of 18 June 2014 whereby the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal had decided that all investigations concerning heads of police stations from the jurisdiction of that Court of Appeal would be carried out by that prosecutor’s office. Consequently, on 15 September 2014 the prosecutor’s office attached to the Bucharest Court of Appeal took over the investigation in respect of the case.", "24. In a decision of 14 October 2014 the prosecutor’s office attached to the Bucharest Court of Appeal ended the investigation on the grounds that the acts complained of did not constitute criminal offences. The description of the incident, which was depicted as “an exchange of views” between the participants, was similar to that contained in the police report (see paragraph 15 above).", "25. On 10 November 2014 the applicants lodged a hierarchical complaint against the prosecutor’s decision; on 15 December 2014 that complaint was dismissed by the prosecutor-in-chief of the prosecutor’s office attached to the Bucharest Court of Appeal. The applicants were notified of that decision on 29 December 2014.", "26. Meanwhile, on 22 December 2014 the applicant association lodged a complaint with the preliminary chamber of the Bucharest District Court (“the Bucharest District Court”) against the prosecutor’s decision of 14 October 2014 (see paragraph 24 above), both on its own behalf and on behalf of the victims (including the individual applicants). Subsequently, the applicants extended the complaint to encompass the decision of 15 December 2014 (see paragraph 25 above). The applicants reiterated their version of the sequence of events, and reaffirmed that the police officers present on the premises had refused to intervene to de-escalate the situation. They argued that the investigators had disregarded evidence that would have allowed them to pick out the perpetrators from the intruders and the threat that they had posed to the applicants. Moreover, they argued that the prosecutor had completely omitted to investigate the part of the complaint concerning the intruders, and they gave the names of ten individuals whom they had been able to identify from the group of intruders. They furthermore contended that the intruders had worn fascist and xenophobic signs (not necessarily only symbols of the New Right organisation). Lastly, the applicants opposed the prosecutor’s description of the incident as an “exchange of views”.", "27. At the same time, the applicant association lodged a complaint, on its own behalf and on behalf of the individuals concerned, with the prosecutor’s office attached to the High Court of Cassation and Justice, against the decision of 15 December 2014. It argued that its criminal complaint (see paragraph 17 above) had been insufficiently investigated. In addition, it provided links to several videos published on the Internet about the incident.", "28. On 5 February 2015 the prosecutor’s office attached to the High Court of Cassation and Justice found that the investigation had not been sufficient in so far as it concerned the allegations that the intruders had worn fascist symbols. He also deemed that the investigators should have interviewed the individuals who had participated in the incident. In its description of the incident, the prosecutor’s office referred to the applicants as being “followers of same-sex relations” ( adepţii relaţiilor între persoane de acelaşi sex ).", "29. Meanwhile, in the course of its examination of the complaint lodged by the applicants on 22 December 2014 (see paragraph 26 above), the Bucharest District Court became acquainted with the prosecutor’s decision of 5 February 2015 and asked the applicant association if it intended to pursue its complaint concerning the incident of 20 February 2013. The applicant association requested that the examination continue and reiterated that two years had passed since the incident but that nothing had been done in order to uncover the truth – the only step taken having been to transfer the case from one prosecutor’s office to another. On 2 March 2015 the Bucharest District Court dismissed the applicants’ complaint.", "30. On 12 June 2017 the prosecutor’s office attached to the Bucharest Court of Appeal opened an investigation into the allegations of public utilisation of fascist, racist and xenophobic symbols. Four individuals were interviewed as witnesses, at least one of them from among the individuals identified in the gendarmerie report of 24 February 2013 (see paragraph 14 above). They all stated that they had witnessed exchanges between the two groups, but had not seen any fascist symbol or gesture. Some of them declared that they had heard about the screening from social media and had opposed it because entrance to the screening had been free to anyone who wished to view it – even though the film had – according to them – been rated as suitable only for adult viewing. One of the witnesses mentioned that he had noticed in the cinema auditorium a flag bearing the words “Everything for the country”.", "31. On 19 June 2017 the police viewed the footage of the incident and described its contents in a police report. In that report it was mentioned that a flag with the words “Everything for the country” written on it could be seen in the footage and that someone could be heard shouting “Death to the homosexuals”.", "32. On 11 August 2017 the prosecutor decided to discontinue the investigation on the grounds that the evidence in the file did not prove beyond any reasonable doubt that the alleged criminal acts had in fact been committed. The prosecutor considered that the evidence in the file did not corroborate the statements made by the members of the applicant association.", "33. On 21 September 2017 the prosecutor-in-chief from the prosecutor’s office attached to the Bucharest Court of Appeal dismissed the complaint lodged by the applicant against the decision of 11 August 2017.", "34. The applicants lodged a complaint with the Bucharest Court of Appeal against the prosecutors’ decisions. They argued that sufficient evidence showed that fascist symbols had been displayed – including the slogan “Everything for the country”, which belonged to a political party that had been banned because of its fascist agenda. On 22 November 2017 the Bucharest Court of Appeal upheld with final effect the prosecutor’s decision of 11 August 2017 (see paragraph 32 above), on the grounds that there was no evidence to sustain beyond any reasonable doubt the assertion that fascist symbols had been displayed in public." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Relevant domestic lawLaw no. 60/1991", "Law no. 60/1991", "Law no. 60/1991", "35. The relevant parts of Law no. 60/1991 on the organisation and conduct of public assemblies (“Law no. 60/1991”) read as follows.", "Article 2", "“Public assemblies must be peaceful and civilised and [the organisers thereof] must ensure the protection of participants and of the environment ... [T]hey must not degenerate into turbulent actions capable of endangering the public peace, safety of people, their corporal integrity, life, or possessions, or public property ...”", "Article 3", "“The following [types of] public assemblies need not be declared in advance: cultural/artistic, sporting, religious or commemorative gatherings [and] events connected with official visits, as well as those organised in front of, or inside, the headquarters of or buildings belonging to [public or private] legal entities. If the organisers of public assemblies not subject to prior declaration have information that those assemblies may cause disorder or lead to violent acts, they have the obligation to request in good time specialised support from the mayor’s office, the relevant gendarmerie and local police.”", "Article 5", "“...", "(2) It is forbidden to conduct simultaneously two or more separate public assemblies, in the same spot or on the same routes, irrespective of their characteristics.”", "Article 9", "“Public hearings are forbidden if they pursue one of the following aims:", "(a) the dissemination of fascist, communist, racist or chauvinist ideologies or ideologies of terrorist organisations using diversionary tactics, the defamation of the country or the nation, incitement to nationalist or religious hatred, [or] incitement to discrimination, public violence or obscene manifestations, contrary to public mores;", "...", "(c) the infringement of public peace, safety or morals [or] of the rights and freedoms of others, or the endangerment of the health of others.”", "Article 13", "“Participants in public assemblies have the following obligations:", "a) to observe the recommendations made by the organisers of [those] public assemblies, or their representatives or the law-enforcement authorities;", "b) to refrain from actions likely to impede the normal conduct of public meetings and from incitement to such – either orally, by means of leaflets or by other audio-visual means;", "c) not to introduce or to [allow], during [those] public meetings, objects such as those provided in article 12 § 1 (g) [alcoholic beverages] and (j) [weapons of any kind, explosive or incendiary material, irritants or paralysing substances, devices for delivering electric shocks, or other objects that could be used for violent actions or to disrupt the normal conduct of assemblies];", "d) to leave immediately [those] public assemblies or the place in which they take place, when they are called upon to do so by the organisers, their representatives or the police;", "e) not to participate in public assemblies in a state of inebriation, [and] not to consume or distribute alcoholic beverages or drugs.”", "The Criminal Code (“the CC”)", "36. The provisions of the CC, as in force until 1 February 2014, read as follows, in so far as relevant:", "Article 247 Abuse of office by restriction of rights", "“An act undertaken by a civil servant to restrict the use or exercise of a person’s rights or to [place] a person in a situation of inferiority, on the grounds of race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion, political affiliation, beliefs, wealth, social origin, age, disability, chronic non-contagious disease or HIV/AIDS infection, is punishable by imprisonment for between six months and five years.”", "Article 317 Incitement to discrimination", "“Incitement to hatred on grounds of race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion, political opinion, convictions, wealth, social origin, age, disability, illness, or HIV infection/AIDS is punishable by imprisonment for between six months and three years or by a fine.”", "Article 323 Association for the purposes of committing crimes", "“(1) Acting as part of [a criminal] association (or forming such an association) for the purpose of committing crimes ..., and joining and offering support of any kind to such an association, shall be punishable by three to fifteen years’ imprisonment; the punishment shall not be harsher than that provided by law for the crime for the purposes of which the association was formed.", "(2) If an act of association is followed by the commission of a crime, the punishment shall consist of the sentence for that crime combined with the sentence provided in paragraph (1).”", "37. In the new CC, in force since 1 February 2014, the relevant provisions read as follows:", "Article 77 Aggravating circumstances", "“The following situations constitute aggravating circumstances:", "...", "h) committing the crime [in question] for motives related to race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion or political affiliation, wealth, social origin, age, disability, chronic non-contagious disease or HIV/AIDS infection, or for any other similar reasons considered by the perpetrator to constitute causes of inferiority in respect of one person in relation to others.”", "Article 369 Incitement to hatred or discrimination", "“Inciting the public, by any means, to hate or discriminate against a category of people is punishable by imprisonment of between six months and three years or by a fine.”", "Emergency Government Ordinance no. 31/2002", "38. Emergency Government Ordinance no. 31/2002 bans fascist or xenophobic organisations, symbols and acts, as well as the honouring or venerating of people responsible for committing genocide, crimes against humanity or war crimes.", "Discrimination under domestic law", "39. Discrimination is prohibited by Article 16 of the Constitution, and is defined in Article 2 § 1 of the Anti-discrimination Ordinance (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination). The relevant parts of the Anti-discrimination Ordinance are described in Cînța v. Romania (no. 3891/19, §§ 23-24, 18 February 2020) and M.C. and A.C. v. Romania (no. 12060/12, §§ 42-44, 12 April 2016, containing also one example of domestic practice). In addition, Article 15 reads as follows:", "Article 15", "“[It] constitutes a misdemeanour under this ordinance (in the event that the deed [in question] does not [already] fall under criminal law), to engage in any public behaviour which is in the nature of nationalist/chauvinist propaganda, [amounts to] incitement to racial or national hatred (or any behaviour that aims to hurt [a person’s] dignity), or incites intimidation, hostility, [or efforts to] degrade, humiliate or offend, [and] which is directed against a person or a group of people or a community, and which is related to [such people’s] race, nationality, ethnicity, religion, social status, membership of a disadvantaged section [of society], beliefs, sex or sexual orientation.”", "Civil Code", "40. Article 1349 of the Civil Code, in force since 1 October 2011, regulates liability in tort as follows:", "Article 1349", "“(1) Every person has a duty to respect the rules of conduct that the law or local custom imposes and not to infringe, through [his or her] actions or inactions, the rights or legitimate interests of other people.", "(2) Those who knowingly breach this obligation shall be responsible for all damage caused, and must provide reparation in full.", "(3) In the specific cases provided by law, a person must provide reparation for damage caused by the deed of another, by objects or animals under their control, or by a building owned by them falling into ruin.", "(4) Liability for damage caused by defective products shall be regulated by a specific Act.”", "Domestic practice", "41. The Romanian Academic Society ( Societatea Academică din România – a Bucharest-based think tank and NGO) published a report in 2016 on the national legislation and domestic case-law regarding hate speech and discriminatory speech. The relevant parts concerning bias in the justice system against homosexuals) read as follows:", "“V. 2. Hate speech in the case-law of the criminal court", "The number of cases examined that concerned incitement to hatred or discrimination under Article 369 of the new Criminal Code or its previous versions – incitement to discrimination under Article 317 of the Criminal Code (as in force after 2006) and chauvinist nationalist propaganda under Article 317 of the Criminal Code (as in force before 2006) – and the number of criminal cases examined as offences prohibited under [Emergency Government Ordinance no. 31/2002] is very low, which gives us a limited perspective on how those legal provisions [have been] applied in practice. The very fact that few such cases are sent to court in comparison with the number of cases recorded under those offences shows that the crime of incitement to hatred or discrimination (and previous versions thereof) and the offences prohibited by [Emergency Government’s Ordinance no. 31/2002] are difficult for the judicial organs to apply in practice.", "The decision to send [an accused] to stand trial for such crimes rests with the prosecutor’s office. The latter sifts through cases that could fall under the provisions regarding such crimes, making a first assessment and applying the [relevant] legal definition. In 2014, out of fifty-nine cases concerning the crime of incitement to hatred or discrimination, Romanian prosecutor’s offices resolved nineteen cases by means of a decision not to prosecute – ending the criminal investigation and closing [the proceedings]; in the first half of 2015, out of forty-seven cases, they resolved twenty by means of a decision not to prosecute – ending the criminal investigation and closing [the proceedings]. Consequently, over a year and a half, more than a half of the cases ... opened (thirty-nine of sixty-eight) [were] not [resolved in a manner that] satisfied, in the interpretation of the prosecutor’s offices, the requirements for prosecution under Article 369 of the new Criminal Code. As for offences prohibited by [Emergency Government Ordinance no. 31/2002], in the same period, out of fifty ‑ three cases opened, the prosecutor’s offices resolved seventeen, of which only one case was forwarded to a court. This situation raises questions about the applicability in practice of the crime of incitement to hatred or discrimination – either in terms of (i) the clarity of the legal definition of that crime [and] how it is understood by those who lodge petitions/complaints or who open investigations and by prosecutors who [choose] not to prosecute cases and their good faith in interpreting and/or applying the law, or (ii) [the question of] the effectiveness of the law in terms of identifying perpetrators and the acts that constitute such crimes. In the following chapters we analyse the substance of these crimes and the way in which they have been interpreted and applied by the judiciary (with reference to the available case ‑ law), with a view to establishing whether the law is clear or legislative amendments are still needed.", "The crime of incitement to hatred or discrimination", "We specify that since the entry into force of the new legal definition provided in Article 369 of the new Criminal Code (Incitement to hatred or discrimination), no court decision has been rendered that would enable the applicability of this provision to be examined. Therefore, the present analysis is based on cases in which the applicability of the older [version of the provision] was examined – that is to say Article 317 of the Criminal Code (Incitement to discrimination or nationalist/chauvinist propaganda) – and we distinguish between the two, where necessary, in accordance with the new text (Article 369 of the new Criminal Code).”", "42. By its decision no. 9, dated 7 January 2015, the National Council for Combating Discrimination (“the NCCD”) declared that statements made by a politician portraying homosexuals as mentally ill or as paedophiles had not exceeded the limits of the freedom of expression enshrined in Article 10 of the Convention, but advised politicians to refrain from making such statements in future. The case in question had been brought by the applicant association against a member of the parliament who had made the statements at issue (referred to in the 7 January 2015 decision) in a press interview. The applicant association had complained of discrimination against homosexuals and a violation of their personal dignity.", "Relevant international materials", "43. The European Commission against Racism and Intolerance (ECRI) released, in 2019, a country report on Romania, the relevant parts of which read as follows:", "“27 ECRI notes that LGBT persons are targets of a high level of prejudice and offensive language, including by mainstream politicians. For instance, in 2017, a member of the Senate made derogative remarks about homosexual persons. In 2018, a group of protesters interrupted the screening of an award-winning film [by] chanting anti ‑ LGBT slogans, claiming it violated traditional Romanian values. The recent referendum on changing the gender-neutral definition of marriage (see § 91) also triggered an increase in hate speech and fuelled homophobia.", "Hate speech by extremist groups", "28. ECRI considers that the New Right ( Noua Dreaptǎ ) movement deserves mention because of its overt use of the Iron Guard legacy through holding public events with anti-Roma and antisemitic themes and engaging in the systematic use of hate discourse against ethnic Hungarians, LGBT persons and immigrants. For example, in October 2017, at the National Opera in Cluj-Napoca, members of this movement disrupted a concert in which an Islamic call to prayer was recited as part of the performance. ECRI is pleased to note that the New Right is not represented in the Romanian Parliament. On a related note, ECRI welcomes the banning of the political party, ‘All for the Country ( Totul Pentru Țarǎ )’ in 2015, due to its use of fascist symbols originating from the Legionary movement.", "...", "63. ECRI recommends that the authorities provide further training for police, prosecutors and judges on how to deal with racist and homo-/transphobic acts of violence. This should include improved procedures for recognising bias-motivations. Furthermore, it also recommends that, in order to address the problem of underreporting, the authorities enhance cooperation between the police and vulnerable groups, in particular the Roma and the LGBT communities.", "...", "95. There are several studies showing that intolerance and discrimination towards LGBT persons are widespread in Romanian society. The opinion poll conducted by the NCCD revealed that LGBT persons are the fifth most unwanted group after persons living with HIV, drug addicts, persons with disabilities and Roma. Only 7% of respondents said that they would accept a homosexual as their relative, while 12% of them would want an LGBT person to be their colleague. These extremely low levels of societal acceptance contribute to significant discrimination and stigmatisation against LGBT persons in key areas of life. Between 2013 and 2016, the National Council for Combating Discrimination (NCCD), which deals with discrimination complaints based on sexual orientation, received a total of 33 complaints on this ground. In 2017, 17 out of the 682 petitions lodged before the NCCD were related to sexual orientation. The NCDD imposed a warning and a fine in two cases and issued a recommendation in another two. ECRI considers that these low numbers of cases before the NCCD may signify a problem of underreporting of discrimination among the LGBT community.", "...", "99. Although the problem of intolerance vis-à-vis LGBT persons is evident, there is no policy to combat this phenomenon in Romania. The draft National Strategy ‘Equality, Inclusion, Diversity’ (2018-2022) contains some measures – albeit not specifically targeted – to promote ... non-discrimination [against] LGBT people. In view of the above-mentioned lack of information about LGBT people and the significant discrimination which they experience, ECRI considers that the authorities should take urgent measures to promote tolerance towards LGBT persons in all areas of everyday life, as well as to combat homophobia and transphobia.", "100. ECRI recommends that the authorities draw up and adopt an action plan, either as a separate policy document or as part of national plans currently in the drafting process, which should include the objectives of protecting LGBT persons against hate speech, violence and discrimination, raising awareness about their living conditions, promoting understanding of LGBT persons and making their right to equal treatment a reality.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLES 3, 8 AND 14 OF THE CONVENTION and OF ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION", "44. Relying on Articles 3 and 8 of the Convention, the applicants complained of the lack of protection from the State authorities against the degrading and humiliating treatment to which they felt they had been subjected by private individuals on 20 February 2013. They furthermore complained, under the same Articles, that the authorities had failed to conduct an effective investigation into the incident of 20 February 2013. In their view, the authorities’ lack of reaction in terms of both protection and investigation had been caused by their bias against the applicants because of their sexual orientation, contrary to Article 14 read in conjunction with Articles 3 and 8 of the Convention. They also considered that the same reasons that (in their view) had led to a violation of Article 14 of the Convention, had also triggered a violation of Article 1 of Protocol No. 12 to the Convention.", "Those Articles read as follows:", "Article 3", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 14", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "Article 1 of Protocol No. 12", "“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.", "2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”", "AdmissibilityVictim status of the applicant association", "Victim status of the applicant association", "Victim status of the applicant association", "45. The applicant association, ACCEPT, complained, together with the five individual applicants, that the attack by the counter-demonstrators during the screening of 20 February 2013 and the authorities’ failure duly to investigate the incident had amounted to a violation of their rights under Articles 3 and 8 taken alone or in conjunction with Article 14 of the Convention, as well as under Article 1 of Protocol No. 12 to the Convention.", "46. The Court reiterates that the word “victim”, in the context of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation. Hence, Article 34 concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (see Identoba and Others v. Georgia, no. 73235/12, § 43, 12 May 2015, with further references).", "47. However, the Court reiterates having found that that physical integrity, which is susceptible to be enjoyed by human beings, cannot be attributed to a legal person such as the applicant association (ibid., § 45). Moreover, associations cannot be allowed to claim, under Article 34 of the Convention, to be a victim of the acts or omissions that affected the rights and freedoms of its individual members who can lodge complaints with the Court in their own name (see, among others, Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, §§ 115 ‑ 116, ECHR 2013 (extracts), and Identoba and Others, cited above § 45).", "48. It follows that the applicant association cannot validly claim, on the basis of the facts of the present case, to be either a direct or indirect victim, within the meaning of Article 34 of the Convention, of a breach of Articles 3 and 8 of the Convention, taken either separately or in conjunction with Article 14 – or, for that matter, of a breach of Article 1 of Protocol No. 12 in relation to the same facts. In so far as it has been brought by the applicant association, the application is thus incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3 (a), and must be rejected, in accordance with Article 35 § 4.", "Article 3 taken alone or together with Article 14", "(a) The parties’ submissions", "49. The Government argued that the treatment allegedly suffered by the individual applicants had not reached the threshold of Article 3 of the Convention. They pointed out that no physical harm had been caused to the individual applicants and that no forensic certificates attested to any consequences suffered by them in the aftermath of the incident in question. As for the alleged mental effects on the applicants, they argued that there were no special circumstances regarding the sex, age or state of health of the applicants that could have justified deeming that the treatment allegedly suffered fell within the scope of Article 3.", "50. The individual applicants contended that the infliction of physical harm was not a pre-condition for treatment being ruled “degrading”. Moreover, the aggression that they had suffered on 20 February 2013 had not turned into physical violence only because the first applicant had decided to suspend the event – a decision that had been taken in order to protect the participants. They submitted that, in their view, the degree of severity of that treatment should be assessed in the light of the fact that the acts of aggression had been directed against the LGBT community and had been part of a series of homophobic acts of violence coordinated by the extremist group the “New Right”, which was notorious in Romania for its acts of violence – especially against the LGBT community. The intruders had outnumbered the participants in the event by a factor of two to one, and the applicants had felt trapped inside the closed dark space of the cinema, had been afraid for their own safety and lives, and had been verbally abused, while the police had refused to intervene and had seemed to even condone the intruders’ actions. The ensuing feelings of fear, anguish and humiliation had continued even after the incident, as the aggressors had videotaped the applicants against their will and had posted those videos online, thus exposing them to additional stigma and hate speech.", "51. The third-party intervener, the Ordo Iuris Institute for Legal Culture, a Polish non-governmental organisation, argued that not all acts of ill ‑ treatment violating Article 3 of the Convention required a criminal response; a State could protect individuals by the mere introduction of a mechanism of administrative or civil liability. The closure of the investigation in respect of the instant case for lack of evidence did not necessarily indicate a failure, carelessness or ineffectiveness on the part of the authorities. The burden of proof lays with the applicants, as the case at hand did not disclose any of the exceptional circumstances in which the Court might agree to a reversal of the burden of proof and that burden being placed on the authorities (as often occurred in cases involving ill-treatment in State custody).", "(b) The Court’s assessment", "52. The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim. Furthermore, Article 3 cannot be limited to acts of physical ill-treatment; it also covers the infliction of psychological suffering. Hence, the treatment can be categorised as degrading when it arouses in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. The Court further reiterates that discriminatory treatment as such can in principle amount to degrading treatment within the meaning of Article 3 where it attains a level of severity such as to constitute an affront to human dignity. More specifically, treatment that is grounded in a predisposed bias on the part of a heterosexual majority against a homosexual minority may, in principle, fall within the scope of Article 3. Discriminatory remarks and insults must in any event be considered to constitute an aggravating factor when considering a given instance of ill-treatment in the light of Article 3. In assessing evidence in respect of a claim of a violation of Article 3 of the Convention, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Identoba and Others, cited above, § 65, with further references).", "53. The present complaint was based on the psychological effect that the incident of 20 February 2013 allegedly had on the applicants, as members of the LGBT community. However, the applicants have not pointed to any facts that could enable the Court to find that the level of mental suffering that they experienced as a result of the incident – or as a result of the manner in which the investigation into that incident took place – came close to the level that the Court has found in other similar cases to engage the State’s responsibility under Article 3 of the Convention with respect to situations of abuse on discriminatory grounds (see, for instance, M.C. and A.C. v. Romania, no. 12060/12, §§ 116 ‑ 119, 12 April 2016, and Identoba and Others, cited above, §§ 68-71).", "54. For instance, the case is to be distinguished from the cases of Begheluri v. Georgia (no. 28490/02, 7 October 2014) and Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia (no. 71156/01, 3 May 2007), where threats directed against members of the religious community were accompanied by searches, severe beatings, robbery and a series of humiliating and intimidating acts. The continuous organised harassment was designed to force the applicants to act against their will and conscience, and took place within a general national climate of religious intolerance.", "55. The applicant’s situation also stands in contrast to Identoba and Others and to M.C. and A.C. v. Romania (both cited above), where verbal abuse and serious threats directed against the applicants – marchers promoting lesbian, gay, bisexual and transgender rights – were followed by actual physical assault on some of the applicants in circumstances in which they were surrounded and outnumbered by their assailants.", "56. In the present case, although the counter-demonstrators outnumbered and surrounded the applicants, they were continuously monitored by the police, albeit from the corridor outside the screening room where the incident took place. No acts of physical aggression took place between the applicants and the counter ‑ demonstrators. The verbal abuse, although openly discriminatory and performed within the context of actions that showed evidence of a pattern of violence and intolerance against a sexual minority, were not so severe as to cause the kind of fear, anguish or feelings of inferiority that are necessary for Article 3 to come into play.", "57. In view of the foregoing, the Court finds that the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention has not been attained (see, for the same conclusion under relevantly similar circumstances, Panayotova and Others v. Bulgaria (dec.), no. 12509/13, § 48, 7 May 2019, and R.B. v. Hungary, no. 64602/12, §§ 47 ‑ 52, 14 April 2016, with further references). Accordingly, the Court rejects the applicant’s complaint regarding the authorities’ alleged failure to fulfil their positive obligations under Article 3 (read alone or in conjunction with Article 14 of the Convention) as being manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.", "Article 8 taken alone or together with Article 14", "(a) The Court’s jurisdiction ratione materiae", "(i) The parties’ submissions", "(α) The Government", "58. At the outset, the Government contended that taking part in a movie screening in a public venue, access to which had been free to all for all, was a matter that did not fall under Article 8 of the Convention. Moreover, they argued that Article 8 could not come into play because no link existed between the State’s alleged actions (or inaction) and the harm allegedly caused.", "59. The Government refuted the applicants’ statement that they had been victims by the mere fact of their having attended the screening and argued that, in fact, the applicants might not even be considered to be direct victims of the alleged violations as it could not be inferred from their own statements whether they were in fact members of the LGBT community or simply sympathisers of the applicant association.", "(β) The applicants", "60. The individual applicants argued that a person’s sexual orientation and sexual life fell within the personal sphere protected by Article 8 of the Convention. The mere fact that the applicants had attended a LGBT film screening organised by the applicant association had been sufficient to expose them to homophobic slurs and threats aimed at creating in them a feeling of inferiority and at dehumanising them. They had felt fear, anguish and humiliation.", "61. In addition, the individual applicants reiterated that the intruders had photographed and filmed them without their permission and had then published the material thus obtained on social media. That had exposed them to further stigma and discrimination.", "(ii) The Court’s assessment", "(α) General principles", "62. At the outset, the Court reiterates that given the fact that the question of applicability is an issue concerning its jurisdiction ratione materiae, the general rule for dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage, unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case; therefore, the issue of the applicability of Article 8 of the Convention falls to be examined at the admissibility stage.", "63. The Court reiterates that the concept of “private life” is a broad term that is not susceptible to exhaustive definition and that also covers the physical and psychological integrity of a person. Such elements as a person’s sexual orientation and sexual life fall within the personal sphere protected by Article 8. In certain areas of private life (such as environmental issues and the right to reputation), in order for Article 8 to come into play, the Court considers that the alleged violation must attain a certain level of seriousness and be committed in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 109, 14 January 2020; also see, on the importance of analysis of the seriousness of the impugned interference for Article 8 to come into play in the context of different types of cases, Denisov, cited above, § 110-114).", "64. The Court has repeatedly held that Article 14 complements the other substantive provisions of the Convention and the Protocols; it has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter ( Beizaras and Levickas, cited above, § 112). The Court also reiterates that the prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity (ibid., § 113 with further references).", "65. Furthermore, the Court reiterates that according to the Convention organs’ consistent approach, the word “victim” of a breach of rights or freedoms denotes the person directly affected by the act or omission which is in issue (ibid., § 76, with further references; see also the case-law quoted in paragraph 46 above).", "(β) Application of those principles to the facts of the present case", "66. In the present case, the Court notes that the individual applicants complained of the authorities’ failure to protect them and to investigate attacks on their private life prompted by their sexual orientation. They explained in great detail the effects that the alleged inaction on the part of the authorities had had on them. In this respect, the Court reiterates that it has not ruled out the possibility that treatment that does not reach a level of severity sufficient to bring it within the ambit of Article 3 may nonetheless breach the “private life” aspect of Article 8, if the effects on the applicant’s physical and moral integrity are sufficiently adverse (see R.B. v. Hungary, cited above, § 79 with further references).", "67. The Court notes that a criminal complaint was lodged, on behalf of the individual applicants, against both the perpetrators and against the police officers who, in their view, had refused to assist the victims. That complaint was lodged in response to specific facts affecting the rights of the individual applicants under the Convention; moreover, these facts were supported by the evidence with which they furnished the authorities (see paragraph 17 above; see also, mutatis mutandis, Beizaras and Levickas, cited above, § 80). The individual applicants can therefore claim to be victims of the alleged violations.", "68. Furthermore, the Court considers that the treatment complained of affected the individual applicants’ psychological well-being and dignity, thus falling within the sphere of their private life (ibid., § 117). The fact that it occurred during a public event does not alter this conclusion. The Court considers that the violent verbal attacks on the applicants, which, moreover, had occurred in the context of evidence of patterns of violence and intolerance against a sexual minority, had attained the level of seriousness required for Article 8 to come into play. Consequently, the Court holds that the facts of the case fall within the scope of Article 8 of the Convention. Therefore, Article 14 of the Convention, taken in conjunction with Article 8, is also applicable to the present case.", "(b) Non-exhaustion of domestic remedies", "(i) The parties’ submissions", "(α) The Government", "69. The Government argued that the applicants had at their disposal a civil remedy based on Article 1349 of the Civil Code (see paragraph 40 above). In addition, it was also open to them to lodge a complaint with the NCCD under the provisions of the Anti ‑ discrimination Ordinance (see paragraph 39 above). They contended that (i) the Court should apply in the present case the same standards that it applied in in respect of cases involving medical negligence and (ii) all the applicants should be satisfied with a civil-law remedy, and thus not require a criminal response in the case.", "70. They furthermore argued that the individual applicants should have been aware of the identity of the people (numbering at least twenty-nine) who had participated in the incident – namely those whose papers had been checked by the police at the end of the screening (see paragraph 15 above). The individual applicants could thus have lodged a civil claim against them.", "71. As for the complaint lodged with the NCCD, the Government pointed out that the applicant association had used that remedy in 2015 when it had complained about the use of defamatory remarks made against the LGBT community. The Government noted that in that decision (which had not been submitted by the Government) the NCCD had recommended to the entire political class that it avoid making statements indicating that homosexuality was a disease or constituted behaviour that was similar to paedophilia.", "(β) The applicants", "72. At the outset, the applicants argued that the Government had failed to bring any evidence that the remedies that they had indicated would have been effective in the present case.", "73. The applicants affirmed that the legislative provisions applicable to their situation were those of the CC (regarding hate crimes – see paragraphs 36-37 above) and those of Law no. 60/1991 (see paragraph 35 above). They rejected the categorisation of the facts of the present case as an offence (as opposed to as a crime) proposed by the Government under the Anti ‑ discrimination Ordinance. Consequently, they argued that in lodging their criminal complaint, they had exhausted the effective domestic remedies available to them.", "74. They reiterated that they had directed their criminal complaint not only against the police officers, but also against the private individuals who, in their view, appeared to have acted in an organised manner and had committed the offence of opposing with violence a public assembly. They argued that if it had been properly conducted, the criminal investigation would have constituted an effective remedy.", "75. The applicants submitted that they had raised all their complaints with the relevant authorities and had sought a remedy at all possible levels of jurisdiction (that is to say the Bucharest Court of Appeal). They furthermore reiterated that victims of hate crime such as themselves were powerless before the perpetrators of such crimes and before the criminal investigating authorities, as victims often did not have the means to identify the perpetrators of such crimes or to hold them accountable. They were thus dependant on the outcome of the relevant criminal investigation, which meant that they could not lodge compensation claims with the civil courts in the event that the perpetrators had not been identified by the police.", "(ii) The Court’s assessment", "(α) General principles", "76. In respect of the requirement to exhaust domestic remedies, the Court refers to the well-established principles of its case-law (as reiterated notably in Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83 ‑ 89, 9 July 2015, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).", "77. In particular, the Court reiterates that the obligation to exhaust domestic remedies requires applicants to make normal use of remedies that are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Gherghina, cited above, § 85, with further references).", "78. Nevertheless, there is no obligation to have recourse to remedies that are inadequate or ineffective. However, the existence of mere doubts as to the prospects of success of a particular remedy that is not obviously futile does not constitute a valid reason for failing to pursue it (ibid., § 86, with further references).", "79. The Court has, however, also frequently stressed the need for the exhaustion rule to be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (ibid., § 87, with further references).", "80. The Court also reiterates that as regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, and was available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case ‑ law (ibid., § 88; see also Molla Sali v. Greece [GC], no. 20452/14, § 89, 19 December 2018).", "(β) Application of those principles to the facts of the present case", "81. The Court notes that the applicants lodged a criminal complaint with the domestic courts in which they raised both the issue of the alleged infringement of their private life and the issue of discrimination (see paragraph 17 above). When properly conducted, a criminal investigation constitutes an effective domestic remedy for such complaints: abuse such as that allegedly suffered by the applicants is punishable by the domestic law (Article 317 of the former CC, cited in paragraph 36 above, and, subsequently, Article 369 of the new CC, cited in paragraph 37 above). All material in the relevant case file, including allegations of racist motives for such acts, should also be taken into account by investigators. In respect of the present case, the applicants had no reason to doubt the effectiveness of this remedy.", "82. Even assuming that the civil proceedings could constitute an effective remedy in situations such as the present one (see, mutatis mutandis, Remetin v. Croatia, no. 29525/10, § 76 in fine, 11 December 2012), in respect of the respondent State, the Court has already found that failure to establish the identity of attackers renders futile any civil-law remedy and any remedy sought before the NCCD in so far as allegations of discrimination are concerned (see, mutatis mutandis, M.C. and A.C. v. Romania, cited above, §§ 62-63). Although a new Civil Code has entered into force in Romania since the time of the events in the case of M.C. and A.C. v. Romania (see paragraph 40 above), the Government did not prove that the procedural requirements for bringing an application with the civil courts under Article 1349 of the present Civil Code differed from those in force under the previous legislation. Consequently, the Court has no reason to depart from its findings in the case of M.C. and A.C. v. Romania concerning the lack of access to the remedy indicated by the Government for persons in the applicants’ situation.", "83. The fact that the applicants were able to present to the authorities the names of some of the counter-demonstrators (see paragraphs 17 and 70 above) does not change this conclusion. In fact, that information, which the applicants duly presented to the investigative authorities along with their criminal complaint (see paragraph 17 above), did not in itself allow them to be able to identify their actual assailants. It should have nevertheless allowed the authorities to correctly identify the participants and establish individual responsibility in respect of the incident.", "84. For these reasons, the Court is satisfied that the individual applicants used the remedies that were available and sufficient for the purpose of the present application. It therefore dismisses the Government’s preliminary objection of non-exhaustion of domestic remedies.", "(c) Other grounds for inadmissibility", "85. The Court notes that the complaint raised by the individual applicants under Article 8 (both alone and together with Article 14) is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. The same conclusion is also valid for the complaint raised by the individual applicants in respect of the same facts under Article 1 of Protocol No. 12 to the Convention. This part of the application must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "86. The individual applicants argued that the authorities had been motivated by their own bias and prejudice against the LGBT community both when they had failed to intervene to stop the homophobic attacks of 20 February 2013 and when they had failed to investigate the incident. Even the language used by the authorities showed their bias. They qualified the attack as “discussion”, “criticisms”, and “an exchange of ideas” and the perpetrators as “sympathisers of the New Right” ( simpatizanţii Noii Drepte ), whereas they described the LGBT-related issues using phrases such as: “the film had homosexual connotations” ( conotaţii homosexuale ), “followers of same-sex relations ( adepţii relaţiilor între personae de acelaşi sex ), “an affront to national honour” ( afront adus demnităţii naţionale ), and “intolerance towards LGBT-community members” ( intoleranţă faţă de membrii comunităţii LGBT ).", "87. In this regard, they refuted the Government’s allegations (see paragraph 93 below) that the incident had constituted “mere discussions” or an “exchange of ideas” regarding the subject of the movie chosen to be screened by the applicant association.", "88. The individual applicants contended that although the police officers had been present in sufficient numbers at the Museum during the incident and had been aware of the intruders’ intentions, they had refused to protect the participants. Not even prompting by the organisers or the contents of the slurs and threats being screamed against the victims had induced the police to step in.", "89. The individual applicants furthermore argued that the investigation had been protracted: for nineteen months three prosecutor offices had done little more than verify their own jurisdiction in respect of the case and forward the case from one prosecutor’s office to another. Moreover, no investigative activity had taken place from 17 March 2013 until 27 February 2014, and an investigation had not been opened until 31 March 2014 – more than a year after the incident. The investigators interviewed the police officers and gendarmes more than a year after the date of the occurrence of the incident under investigation and the intruders more than three years after the date of the incident.", "90. Moreover, the applicants pointed out that although twenty ‑ nine people had been identified by the police on the evening of 20 February 2013, only four had been interviewed in relation to the incident. No steps had been taken to clarify the contradictions between, on the one hand, the statements made by the victims (supported by recordings of the incident and screen shots of social-media posts) and, on the other hand, the statements made by the police officers and the intruders.", "91. Lastly, the applicants contended that the authorities had closed the investigations into the allegations of homophobic hate crimes not because they had been unable to identify the perpetrators, but because they had considered that the incident had not been serious enough – in the absence of any physical violence – to reach the threshold required for behaviour to be categorised as a hate crime.", "(b) The Government", "92. The Government pointed out that the protection afforded against hate crimes had been enhanced since the date of the occurrences that had given rise to a violation in the case of M.C. and A.C. v. Romania (cited above). Moreover, the applicant association had been associated with the execution of that judgment and its input had contributed to the measures proposed or undertaken by the authorities in that process.", "93. The Government furthermore pointed out that, despite the fact that the applicants had failed to comply with the requirements of Article 3 of Law no. 60/1991 (which required that they give warning in good time of any risk of violence – see paragraph 35 above), the police had been present on the premises to offer protection. The police had not intervened to stop the “discussions between the two parties” because there had been no need for such an intervention.", "94. The Government argued that the fact that the case had been discontinued for lack of evidence did not render the investigation ineffective. They pointed out that several police officers and employees of the applicant association who had been present during the incident had been heard as witnesses during the proceedings and that the applicants had also been able to lodge their complaint and to pursue it at all levels of jurisdiction.", "95. In so far as the allegations of discrimination were concerned, the Government argued that the present case differed from those where a demonstration had, for instance, been banned because of the authorities’ bias against homosexuals. In the light of that difference, they argued that in the present case there had been no violation of Article 14 of the Convention.", "The Court’s assessment", "(a) Preliminary remarks", "96. The Court considers that the authorities’ duty to prevent the infliction of hatred ‑ motivated violence (whether physical attacks or verbal abuse) by private individuals and to investigate the existence of any possible discriminatory motive behind such violence can fall under the positive obligations enshrined in Article 8 of the Convention, but may also be seen as forming part of the authorities’ positive responsibilities under Article 14 of the Convention to secure the fundamental values protected by Article 8 without discrimination. Owing to the interplay of the above provisions, issues such as those arising in respect of the present case may indeed fall to be examined under one of these two provisions only ‒ with no separate issue arising under any of the others ‒ or may require simultaneous examination under several of these Articles. This is a question to be decided in each case in the light of its facts and the nature of the allegations made (see M.C. and A.C. v. Romania, cited above, § 105, with further references).", "97. Given the particular circumstances of the present case, and in view of the applicants’ allegations that the incident of which they had been victims had had homophobic overtones that had been completely overlooked by the authorities, the Court finds that the most appropriate way to proceed would be to examine the applicants’ complaint under Article 14, taken in conjunction with Article 8 of the Convention (see, mutatis mutandis, the above-cited cases of Identoba and Others, § 64, and M.C. and A.C. v. Romania, § 106).", "(b) General principles", "98. The relevant principles established under Article 14 of the Convention have been reiterated in Molla Sali, cited above, §§ 133 ‑ 37):", "“133. In order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations (see, among many other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 125, ECHR 2012; X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013; Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 64, 24 January 2017, and Fábián [ v. Hungary [GC], no. 78117/13], § 113[,5 September 2017]). In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical.", "134. However, not every difference in treatment will amount to a violation of Article 14. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián, cited above, § 113 and the references therein). In this context, the Court reiterates that the words “other status” have generally been given a wide meaning in its case-law (see Carson and Others [ v. the United Kingdom [GC], no. 42184/05], § 70[, ECHR 2010]) and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift v. the United Kingdom, no. 7205/07, §§ 56-59, 13 July 2010). For example, a discrimination issue arose in cases where the applicants’ status, which served as the alleged basis for discriminatory treatment, was determined in relation to their family situation, such as their children’s place of residence (see Efe v. Austria, no. 9134/06, § 48, 8 January 2013). It thus follows, in the light of its objective and nature of the rights which it seeks to safeguard, that Article 14 of the Convention also covers instances in which an individual is treated less favourably on the basis of another person’s status or protected characteristics (see Guberina v. Croatia, no. 23682/13, § 78, ECHR 2016 and Škorjanec v. Croatia, no. 25536/14, § 55, 28 March 2017 and also Weller v. Hungary, no. 44399/05, § 37, 31 March 2009).", "135. The Court also reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it ’has no objective and reasonable justification’, that is, if it does not pursue a “legitimate aim” or if there is not a ’reasonable relationship of proportionality’ between the means employed and the aim sought to be realised (see Fabris [ v. France [GC], no. 16574/08], § 56[, ECHR 2013 (extracts)]).", "136. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see Stummer v. Austria [GC], no. 37452/02, § 88, ECHR 2011).", "137. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that the latter was justified (see Khamtokhu and Aksenchik, cited above, § 65; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 85, ECHR 2013 (extracts); and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177 [, ECHR 2007 ‑ IV]).”", "99. In addition, the Court reiterates that sexual orientation is a concept covered by Article 14. The Court has repeatedly held that – just like differences based on sex – differences based on sexual orientation require “particularly convincing and weighty reasons” by way of justification. Where a difference in treatment is based on sex or sexual orientation, the State’s margin of appreciation is narrow. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States. Differences based solely on considerations of sexual orientation are unacceptable under the Convention (see Beizaras and Levickas, cited above, § 114, and Ratzenböck and Seydl v. Austria, no. 28475/12, § 32, 26 October 2017, with further references).", "100. The Court also makes reference to the general principles that it has established in its case-law regarding alleged violations of Article 8 of the Convention with respect to the positive obligations incumbent on the respondent States within in the context of that Article. These principles have been recently reiterated in Beizaras and Levickas (cited above, §§ 106-116).", "101. In particular, the Court reiterates that positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even within the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 within the sphere of protection against acts committed by individuals in principle falls within the State’s margin of appreciation, effective deterrence against grave acts where essential aspects of private life are at stake requires efficient criminal ‑ law provisions (ibid., § 110 with further reference). Furthermore, the Court has not excluded the possibility that the State’s positive obligation under Article 8 to safeguard the individual’s physical integrity may extend to questions relating to the effectiveness of a criminal investigation (see M.C. v. Bulgaria, no. 39272/98, § 152, ECHR 2003 ‑ XII, with further references).", "102. The Court has acknowledged that criminal sanctions – including against individuals responsible for the most serious expressions of hatred, inciting others to violence – could be invoked only as an ultima ratio measure. That being so, it has also held that where acts that constitute serious offences are directed against a person’s physical or mental integrity, only efficient criminal-law mechanisms can ensure adequate protection and serve as a deterrent factor. The Court has likewise accepted that criminal ‑ law measures are required with respect to direct verbal assaults and physical threats motivated by discriminatory attitudes (ibid., § 111, with further references).", "103. The Court must also reiterate that it is not its task to rule on the constituent elements of the offence of incitement to hatred and discrimination (as described in paragraph 36 above). It is, moreover, primarily for the national authorities, in particular the courts, to interpret and apply domestic law. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (ibid., § 116).", "(c) Application of those principles to the facts of the case", "104. At the outset, the Court observes that the applicants’ complaint (see paragraph 44 above) is twofold: on the one hand, they argued that the authorities (the police and gendarmes) had failed to protect them during the incident of 20 February 2013, and, on the other hand, that the authorities (the prosecutor’s office and the courts) had failed to conduct an effective investigation which would have taken into account the homophobic connotations of the incident. The Court will examine these aspects separately.", "(i) Obligation to protect", "105. The Court observes that on 20 February 2013 the individual applicants, who were part of a group of about twenty people (see paragraph 8 above), were subject to verbal abuse from a group of forty ‑ fifty individuals (see paragraphs 9 and 31 above) who objected to and effectively broke up the event that the applicants were attending because of their opposition to same-sex relations (see paragraph 15 above). They were not stopped by the police officers, who, although they took certain measures when specifically prompted to do so by the applicants (such as confiscating some flags from the counter ‑ demonstrators – see paragraph 10 above), seem to have minimised their assistance by remaining outside the room in which the incident occurred.", "106. The Government argued that the police had been unable to intervene because the organisers had failed to properly secure prior authorisation for the event (see paragraph 93 above). The same argument also appeared in the decision rendered by the military prosecutor’s office on 24 June 2014 (see paragraph 22 above). The Court cannot see the relevance of these allegations in the present case.", "107. In this respect, it notes, firstly, that there is no evidence in the file that the applicant association was ever required to obtain prior authorisation for the type of cultural event it organised (see Article 3 of Law no. 60/1991, cited in paragraph 35 above), or to that end, was subjected to any sort of administrative proceedings in respect of that alleged omission.", "108. More importantly, irrespective of whether the applicant association had complied with the requirements indicated by the Government or not, the Court cannot but notice that the authorities (that is to say police officers and gendarmes) were present in sufficient numbers on the premises from the beginning of the incident. Their presence had been prompted by information transmitted to the police by the applicant association as soon as the latter had become aware of possible opposition to the event that it had organised (see paragraphs 6 and 20 above).", "109. The police officers or the gendarmes were at no point overpowered by the intruders, and they did not claim that they had been caught unprepared and had thus lacked the proper equipment to intervene (see the reports into the incident drafted by the gendarmes and police, quoted in paragraphs 13 and 15 above ).", "110. That said, the Court observes that although eighteen police officers and gendarmes were present on the premise, they remained outside the cinema auditorium, where the incident was developing, and, to a large extent, refrained from intervening to de-escalate the situation, despite being prompted to do so by the organisers (see paragraphs 7 and 10 above).", "111. Furthermore, the police officers and gendarmes who were present on the premises did not intervene effectively, despite them being aware of the views and opinions being manifested by the intruders and having heard the contents of the slurs uttered by them (see paragraphs 13 and 15 above). They thus did not prevent the individual applicants from being bullied and insulted by the intruders (see, mutatis mutandis, Identoba and Others, cited above, § 73).", "112. More than a failure to intervene, the authorities’ attitude and decision to remain aside despite being aware of the content of the slurs being uttered against the applicants seems to indicate a certain bias against homosexuals, which also permeated their subsequent reporting on the incident at the cinema. In this respect, the Court notes that the reports drafted by the police and gendarmes contained no reference to the homophobic insults suffered by the individual applicants and describe the incident in terms that completely disregard any such manifestations of homophobia (see paragraphs 13 and 15 above).", "113. In view of the above, the Court concludes that the authorities failed to correctly assess the risk incurred by the individual applicants at the hands of the intruders and to respond adequately in order to protect the individual applicants’ dignity against homophobic attacks by a third party.", "(ii) Obligation to investigate", "114. The Court observes that the police was present at the scene during the incident in question. Their initial findings showed that the counter ‑ demonstrators had been motivated by the participants’ sexual orientation (see paragraph 15 above). In these circumstances, the Court finds that already at the initial stages of the proceedings, immediately after the screening of 20 February 2013 to which the applicants participated, the domestic authorities were confronted with prima facie indications of verbal abuse motivated or at least influenced by the applicants’ sexual orientation (compare Šečić v. Croatia, no. 40116/02, § 69, 31 May 2007; Milanović v. Serbia, no. 44614/07, § 99, 14 December 2010; Abdu v. Bulgaria, no. 26827/08, § 35, 11 March 2014; and Begheluri, cited above, § 176). According to the Court’s case-law, this mandated for an effective application of domestic criminal-law mechanisms capable of elucidating the possible hate motive with homophobic overtones behind the violent incident and of identifying and, if appropriate, adequately punishing those responsible (see paragraphs 101-102 above; see also S.M. v. Croatia [GC], no. 60561/14, § 324, 25 June 2020).", "115. In addition, the Court observes that the criminal complaint was lodged on 5 March 2013 – that is to say within two weeks of the date on which the incident had occurred. The applicants presented all the evidence at their disposal (see paragraph 17 above). However, for more than a year, no significant steps were taken in the investigation, as it was only on 31 March 2014 that the prosecutor’s office effectively started investigating the incident (see paragraph 19 above).", "116. The Court notes that the investigation lasted more than four years and eight months: from 5 March 2013 (when it was lodged) until 22 November 2017 (when the Bucharest Court of Appeal dismissed by a final decision the applicants’ objections – see paragraph 34 above). Such a passage of time is liable not only to undermine an investigation, but also to compromise definitively its chances of being ever completed (see, mutatis mutandis, M.C. and A.C. v. Romania, cited above, § 120). The applicants complained about the length of the investigation, but to no avail (see paragraph 29 above).", "117. The Court considers that at least the initial stages of the investigation should not have been too difficult for the authorities. The applicants provided a detailed description of facts in their initial complaint, which was complemented by the reports drafted by the gendarmerie and police. In addition, from the day on which the investigation started, the prosecutor’s office had at its disposal the name of twenty-nine participants in the incident (at least some of them belonging to the group of intruders – see paragraphs 13, 14 and 15 above), as well footage of the incident provided by the applicants (see paragraphs 17 and 27 above).", "118. The Court furthermore notes that although the initial complaint was made against both the officers and the intruders, the latter never became a subject of the investigation. Some of those individuals, identified by the police on the night of the incident, were interviewed as witnesses – but only after more than four years had elapsed after the date of the incident (see paragraph 30 above). However, despite the complaints (as well as an express objection) lodged by the applicants in respect of this point (see paragraph 26 above), none of the intruders were ever formally accused by the prosecutor. The Court has already held that failure to open criminal inquiries may compromise the validity of evidence collected during the preliminary stages of investigation (see, mutatis mutandis, M.C. and A.C. v. Romania, cited above, § 122, with further references).", "119. It should be noted that in their decisions, the prosecutors concluded that there were insufficient elements to constitute proof that the alleged acts had actually been committed (see, in particular, paragraphs 32-34 above). The domestic authorities thus deemed that the threats of “death to the homosexuals” (see paragraph 31 above) or other remarks that the applicants alleged had been uttered against them (see paragraphs 9 and 17 above) had not reached the threshold required by the applicable law to constitute a criminal offence. However, while being careful not to hold that each and every utterance of hate speech must, as such, attract criminal prosecution and criminal sanctions, the Court reiterates its finding that comments that amount to hate speech and incitement to violence, and are thus clearly unlawful on the face of things, may in principle require the States to take certain positive measures. It has likewise held that inciting hatred does not necessarily amount to a call for an act of violence or other criminal acts. Attacks on people committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the form of freedom of expression exercised in an irresponsible manner (see Beizaras and Levickas, cited above, § 125, with further references).", "120. Moreover, the applicants argued from time of their lodging their very first complaint that the attacks had been of a homophobic nature (see paragraph 17 above) but this aspect had not been duly explored by the authorities. It was not before 5 February 2015 (that is to say almost two years after the incident) that the prosecutor started investigating the allegations that the intruders had exhibited fascist symbols (see paragraph 28 above). However, the alleged homophobic reasons for the commission of the acts were not mentioned in the prosecutors’ decisions.", "121. The Court cannot but note that the authorities consistently referred to the verbal abuse that was targeted against the individual applicants as constituting mere “discussions” or an “exchange of views” (see paragraphs 15 and 24 above). The perpetrators were described as “sympathisers” of far ‑ right organisations and the victims as “followers” of same-sex relations (see paragraph 28 above). This language, far from being neutral or accidental, can suggest bias on the part of the authorities against the individual applicants, which may be seen as indicating that the authorities turned a blind eye to the homophobic overtones of the acts perpetrated, thus jeopardising the accuracy and effectiveness of the domestic proceedings as a whole.", "122. Moreover, no weight was attached to the fact that that the organisation that seems to have been behind the attacks was notoriously opposed to homosexual relations (see paragraphs 9 and 43 above) or that the homophobic slurs in question had been uttered against the individual applicants (see paragraphs 21 and 31 above). These elements did not figure in the prosecutors’ decisions wherein the acts of the gendarmes and police officers were examined (see paragraphs 22 and 24 ‑ 25 above).", "123. For these reasons, the Court concludes that the authorities did not take reasonable steps to investigate whether the verbal abuse had been motivated by homophobia. The necessity of conducting a meaningful inquiry into the possibility that discriminatory motives had lain behind the abuse was absolute, given the hostility against the LGBT community in the respondent State and in the light of the evidence that homophobic slurs had been uttered by the intruders during the incident (see, mutatis mutandis, M.C. and A.C. v. Romania, cited above, § 124 as well as paragraphs 41-43 above).", "124. The Court considers that without such a rigorous approach on the part of the law ‑ enforcement authorities, prejudice-motivated crimes will inevitably be treated on an equal footing with cases involving no such overtones, and the resultant indifference can be tantamount to official acquiescence in, or even connivance with, hate crimes (see Identoba and Others, cited above, § 77, and, mutatis mutandis, Ciorcan and Others v. Romania, nos. 29414/09 and 44841/09, § 167, 27 January 2015).", "125. Lastly, the Court acknowledges the evolution of the domestic law, which now prohibits incitement to hatred and discrimination (contrast M.C. and A.C. v. Romania, cited above, § 124, as well as paragraphs 37 and 92 above). Be that as it may, the Court reiterates that its role is not to examine in abstract the applicable national law, but rather to ascertain whether its interpretation by the domestic authorities is compatible with the Convention (see, mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257-B, and Beizaras and Levickas, cited above, § 116). However, in the light of the above findings, the Court cannot but conclude that the authorities’ response failed to take into account the homophobic overtones of the incident and to subject them to a proper evaluation under the domestic law, in line with the requirements of the Convention.", "126. The foregoing considerations are sufficient to enable the Court to conclude that the authorities failed to discharge their positive obligation to investigate in an effective manner whether the verbal abuse directed towards the individual applicants constituted a criminal offence motivated by homophobia (see, mutatis mutandis, Beizaras and Levickas, cited above, § 129). In doing so, the authorities showed their own bias towards members of the LGBT community.", "(iii) Conclusion", "127. In the light of the findings contained in paragraphs 113 and 126 above, the Court considers it established that the authorities have failed to offer adequate protection in respect of the individual applicants’ dignity (and more broadly, their private life), and to effectively investigate the real nature of the homophobic abuse directed against them. It thus considers it established that the individual applicants suffered discrimination on the grounds of their sexual orientation. It furthermore considers that the Government did not provide any justification indicating that the authorities’ attitude was compatible with the standards of the Convention.", "128. There has thus been a violation of Article 14, taken in conjunction with Article 8 of the Convention.", "129. This conclusion means that the Court does not need to examine the remainder of this complaint, that remainder having been raised under Article 8 of the Convention alone (see, mutatis mutandis, M.C. and A.C. v. Romania, § 126). For the same reasons, the Court considers that it is not necessary to examine separately whether there has also been a violation of Article 1 of Protocol No. 12 to the Convention (see, mutatis mutandis and among many other authorities, M.C. and A.C. v. Romania ¸ cited above, § 129, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 51, ECHR 2009).", "ALLEGED VIOLATION OF ARTICLES 11 AND 14 OF THE CONVENTION AND OF ARTCLE 1 OF PROTOCOL NO. 12 TO THE CONVENTIONArticle 11 read alone or together with Article 14", "Article 11 read alone or together with Article 14", "Article 11 read alone or together with Article 14", "130. The applicants complained under Article 11 of the Convention, taken alone and in conjunction with Article 14, of the authorities’ failure to protect their right to freedom of peaceful assembly and to investigate the actions that had led to the interruption of the event organised by the applicant association on 20 February 2013.", "Article 11 of the Convention reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "Admissibility", "131. The Court notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "Merits", "(a) The parties’ submissions", "(i) The applicants", "132. The applicants contended that the aim of the counter-demonstration had been to stop the event, and not to participate in a democratic debate. In their view, the counter-demonstration had breached the requirements of Law no. 60/1991 (see paragraph 35 above) in that it had not been peaceful, it had been carried out at the same time as another demonstration (which had been legally organised by the applicant association), it had been aimed at inciting discrimination and violence, it had been held to oppose the rights of others, and it had hindered the normal course of a peaceful assembly. Despite those infractions to the law, the authorities had failed to intervene, and it had been no longer possible for the event to take place.", "133. They also contested the comments made by the third ‑ party intervenor (see paragraph 136 below), which they considered to be vexatious.", "(ii) The Government", "134. The Government argued that those who chose to exercise the freedom to manifest their views or expose their membership of a minority group could not reasonably expect to be exempt from all criticism. In their view, the relevant domestic law, which consisted notably of Law no. 60/1991 and the CC (see paragraphs 35 and 36 above), was equipped to deal with the applicants’ situation. Specifically, the Government pointed out that, in compliance with the law mentioned above, the police had arrived in great numbers within a short space of time at the place where the incident was developing, in order to ensure the participants’ protection. Moreover, the authorities had conducted a thorough investigation into possible discriminatory reasons for the counter ‑ demonstration.", "135. Lastly, the Government pointed out that the decision to halt the screening had been taken by the applicant association and had not been imposed by the police or the administration of the Museum.", "(iii) Third party intervener", "136. The third-party intervener (see paragraph 51 above) argued mainly that the States were obliged to ensure the right to assembly for both demonstrations and counter ‑ demonstrations as long as they were peaceful and did not propagate views manifestly contrary to the basic principles of democracy and human dignity.", "(b) The Court’s assessment", "(i) Preliminary remarks", "137. The Court considers, for the same reasons as those given in paragraph 97 above, that the most appropriate way to proceed with this complaint would be to examine it under Article 14, taken in conjunction with Article 11 of the Convention (see, mutatis mutandis, Identoba and Others, cited above, § 92).", "(ii) General principles", "138. At the outset the Court reiterates that the right to freedom of peaceful assembly covers both private meetings and meetings in public places, whether static or in the form of a procession; in addition, it can be exercised by individual participants and by the persons organising the gathering (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 91, ECHR 2015, with further references).", "139. The Court also makes reference to the general principles that it has established in its case-law regarding alleged violations of Articles 14 and 11 of the Convention based on allegations that attacks by private individuals, coupled with the passivity of the police in the face of that violence, disrupted peaceful assemblies. These principles have been recently reiterated in Berkman v. Russia (no. 46712/15, §§ 45-49, 1 December 2020).", "140. In particular, the Court has found that a peaceful demonstration may annoy or give offence to persons opposed to the ideas or claims that that demonstration seeks to promote. The participants must, however, be able, with the State’s assistance, to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter ‑ demonstrate cannot extend to inhibiting the exercise of the right to demonstrate (ibid., § 47, with further references). Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere (ibid., §§ 46 and 54).", "141. The Court also reiterates that in the case of Identoba and Others (cited above, §§ 81 and 100) it considered that the State had violated its obligations under the principle of non-discrimination owing to the failure to protect demonstrators from homophobic violence and to launch an effective investigation (see also Berkman, cited above, § 49).", "(iii) Application of those principles to the facts of the case", "142. At the outset, the Court affirms that the disruption of the screening of 20 February 2013 undoubtedly amounted to an interference with the applicants’ right to freedom of peaceful assembly guaranteed by Article 11 of the Convention (see, mutatis mutandis, Identoba and Others, cited above, § 97).", "143. The Court furthermore observes that the applicants’ complaints that the State failed to protect their freedom of assembly from bias ‑ motivated violence stem from exactly the same factual circumstances as those that it has already examined under Article 14 of the Convention taken in conjunction with Article 8 (see paragraphs 105-128 above). The fact that the Court’s findings in paragraph 128 above only concerned the individual applicants (see paragraph 48 above) does not change the relevance of those findings to the present complaint (which extends to all of the applicants). Consequently, the Court’s findings under those provisions are equally pertinent to the examination of the complaint under Article 14, read in conjunction with Article 11 of the Convention.", "144. This conclusion is not altered by the fact – pointed out by the Government – that the decision to stop the screening and to reschedule it for a later date, was taken by the applicant association and was not imposed by the authorities (see paragraphs 11, 16 and 134 above). In fact, the Court reiterates that the right to freedom of assembly includes the right to choose the time, place and practical conditions of such an assembly, within the limits established in paragraph 2 of Article 11 (see Sáska v. Hungary, no. 58050/08, § 21, 27 November 2012).", "145. The Court furthermore reiterates its findings that the applicant association contacted the authorities as soon as the latter became aware of possible opposition to the event that it had organised, and that the authorities were present in sufficient numbers on the premises from the beginning of the incident (see paragraphs 6, 20 and 108 above). In this regard, the authorities were under an obligation to use any means possible to ensure that the applicants’ right to peaceful assembly was respected (see, mutatis mutandis, Identoba and Others, cited above, § 99). However, as the Court has already found, they failed to intervene effectively to de-escalate the situation, despite being aware of the content of the homophobic slurs being uttered against the participants (see paragraphs 110-112 above; see also Berkman, cited above, § 56).", "146. All in all, the Court considers that the domestic authorities failed to ensure that the event of 20 February 2013 (which was organised by the applicant association and attended by the individual applicants) could take place peacefully by sufficiently containing the homophobic counter ‑ demonstrators. Because of their failures in this regard, the authorities fell short of their positive obligations under Article 14 taken in conjunction with Article 11 of the Convention (see, mutatis mutandis, the above-cited cases of Identoba and Others, § 100, and Berkman, § 58).", "147. This conclusion means that the Court does not need to examine the remainder of this complaint, that remainder having been raised under Article 11 of the Convention alone (see also paragraph 129 above).", "Article 1 of Protocol No. 12 to the Convention", "148. The applicants also considered that the same factors that, in their view, would trigger a violation of Article 14 (taken together with Article 11) of the Convention should also trigger a violation of Article 1 of Protocol No. 12 to the Convention.", "149. However, in view of the conclusion reached by the Court concerning the complaint raised under Article 14 taken together with Article 11 of the Convention (see paragraph 146 above), the Court finds that it is not necessary to examine separately the admissibility and merits of this complaint (see, mutatis mutandis, Sejdić and Finci, cited above, § 51).", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "150. Lastly, the applicants complained that they had had no effective remedy through which to raise their complaints before the domestic authorities concerning the alleged violation of their Convention rights, in breach of Article 13 of the Convention, read in conjunction with Articles 3, 8, 11 and 14 of the Convention, and in conjunction with Article 1 of Protocol No. 12 to the Convention.", "Article 13 reads as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "The parties’ submissionsThe Government", "The Government", "The Government", "151. The Government contended that the applicants did not have an arguable claim under the Convention and that Article 13 was thus not applicable in their case. In any event, they argued that the relevant domestic law offered the applicants several effective remedies in respect of the alleged breaches of the Convention. Moreover, the Government noted that following the adoption of the judgment in the case of M.C. and A.C. v. Romania (cited above), the Ministry of Justice had facilitated the collection of data concerning hate crimes via its Electronic Court Record Information System database (ECRIS). Steps had also been taken to crystallise what actually constituted a “hate crime”, including expressly adding prejudice against a person’s sexual orientation to the list of possible aggravating factors in the commission of a crime (see Article 77 h of the new Criminal Code, cited in paragraph 37 above).", "The applicants", "152. The applicants considered that the domestic law concerning hate crimes was unclear and ineffective. They submitted that thus far, there had been no prosecution or conviction (under Article 369 of the Criminal Code – see paragraph 37 above) in the respondent State in respect of cases concerning the criminal offence of incitement to hatred or discrimination on the grounds of sexual orientation. Moreover, the domestic case-law regarding the prohibition of the use of fascist symbols (under Emergency Ordinance no. 31/2002 – see paragraph 38 above) was scanty and contradictory. In their view, the Government had failed to bring evidence indicating that the domestic law provided an effective remedy for these crimes.", "153. Relying on the reports made by the Romanian Academic Society (see paragraph 41 above), the applicants argued that the legislature should list explicitly the grounds for discrimination necessary for behaviour to be categorised as a hate crime, instead of the general wording “against a category of people”. In their view, the definition of a “hate crime” was too general; thus, it was unclear what kind of discourse would constitute a criminal offence under the relevant provision of the CC and what kind of discourse would constitute merely an administrative offence under Article 15 of Government Ordinance no. 137/2000 (see paragraph 39 above). They furthermore pointed out that the word “hatred” was not defined under Romanian legislation. Those uncertainties, together with the lack of awareness of the serious nature of hate crimes among prosecutors, explained (in their view, and according to the findings of the above report) why there had been almost no instances of anyone being indicted for incitement to hatred or to discrimination.", "The Court’s assessmentGeneral principles", "General principles", "General principles", "154. The Court reiterates that Article 13 requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI; Ramirez Sanchez v. France [GC], no. 59450/00, § 157, ECHR 2006 ‑ IX; and A.K. v. Liechtenstein (no. 2), no. 10722/13, § 84, 18 February 2016).", "155. The Court reiterates that Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. The Court has also held that the provisions of the Convention must be interpreted and applied in a manner that renders their safeguards practical and effective, not theoretical and illusory. In order to be effective, the remedy required by Article 13 must be available in practice, as well as in law – in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Beizaras and Levickas, cited above, § 149, with further references).", "Application of those principles to the facts of the present case", "156. At the outset, the Court considers that, for the same reasons as those explained in paragraphs 46 to 48 above, the applicant association cannot validly claim on the facts of the present case to be either a direct or indirect victim, within the meaning of Article 34 of the Convention, of a breach of Articles 3, 8 and 14 of the Convention, taken in conjunction with Article 13. In so far as it has been brought by the applicant association, the complaint under Article 13 is thus incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.", "157. Furthermore, the Court reiterates that, in so far as the individual applicants were concerned, the complaint under Article 3, taken alone or in conjunction with Article 14 of the Convention, was declared manifestly ill ‑ founded because the minimum level of severity required in order for the issue to fall within the scope of Article 3 of the Convention has not been attained (see paragraph 57 above). It follows that the individual applicants did not have an arguable claim in this regard (see, mutatis mutandis, Posevini v. Bulgaria, no. 63638/14, § 82, 19 January 2017). Accordingly, the complaint under Article 13 taken in conjunction with Articles 3 and 14 in this respect is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4.", "158. In the present case the Court has found that the individual applicants’ rights under Article 14, taken in conjunction with Article 8, and all the applicants’ rights under Article 14, taken together with Article 11, were infringed (see respectively paragraphs 128 and 146 above). Therefore, they had an arguable claim, within the meaning of the Court’s case-law, and were thus entitled to a remedy satisfying the requirements of Article 13.", "159. In respect of Article 14 in conjunction with Article 8, the Court notes that the individual applicants mainly argue that the domestic law lacked clarity, which, in turn, renders unreliable the way that it was interpreted by the domestic authorities, prosecutors and courts. From this perspective, the complaint differs essentially from that examined by the Court under Article 13 in Beizaras and Levickas (cited above, § 151), in which the issue raised before the Court concerned generally effective remedies that were considered not to have operated effectively in a particular case owing to discriminatory attitudes negatively affecting the application of national law.", "160. The Court furthermore reiterates that, in principle, when properly conducted, a criminal investigation constitutes an effective domestic remedy for complaints brought by the individual applicants under Article 8 and 14 of the Convention (see paragraph 81 above). The Court also reiterates that it is not its task to rule on the constituent elements of the criminal offence under examination (see paragraphs 103 and 125 above).", "161. Lastly, the Court reiterates that the applicants’ complaints that the State failed to protect their freedom of assembly from bias-motivated violence stem from exactly the same factual circumstances as those that it examined under Article 14 of the Convention taken in conjunction with Article 8 (see paragraph 143 above). Consequently, the above findings are equally valid in respect of the complaint raised by all the applicants under Article 13, taken in conjunction with Articles 11 and 14 of the Convention.", "162. In the light of the above considerations – and bearing in mind the nature and substance of the violations found in the present case, on the basis of Article 14, taken in conjunction with Articles 8 and 11 (see paragraphs 127-128 and 146 above, respectively) –, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint under Article 13 of the Convention, read in conjunction with Articles 8, 11 and 14, as detailed above (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 123, ECHR 2005 ‑ VII with respect to the interplay between Articles 2 and 13 of the Convention; see also Opuz v. Turkey, no. 33401/02, § 205, ECHR 2009, with respect to the interplay of Articles 2, 3 and 14 and Article 13).", "163. Lastly, for the same reasons, the Court finds that it is not necessary to examine separately the admissibility and merits of the complaint raised under Article 13 of the Convention, read in conjunction with Article 1 of Protocol No. 12 (see paragraph 149 above).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "164. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "165. The individual applicants claimed 15,000 euros (EUR) each in respect of non-pecuniary damage consisting of the mental suffering that they had experienced and continued to experience as a result of the violations alleged. The applicant association claimed EUR 25,000 in respect of non ‑ pecuniary damage caused by the additional burden that it had to carry as a result of the violations alleged before the Court.", "166. The Government contested the claims, referring to the amounts awarded by the Court in the cases of M.C. and A.C. v. Romania (cited above, § 133) and Identoba and Others (cited above, § 110).", "167. The Court notes that it has found a violation of Article 14, taken together with Article 8, with regard to the individual applicants, and a violation of Article 14 taken together with Article 11 with regard to all applicants. As far as the individual applicants are concerned, the Court considers that they must have sustained non ‑ pecuniary damage that cannot be compensated for solely by the finding of a violation. Furthermore, the Court has no doubt that the applicant association, as a legal entity, was also prejudiced in its legitimate interests as a result of a breach of its rights under Article 14, read in conjunction with Article 11 of the Convention (see Identoba and Others, cited above, § 110). Having regard to the nature of the violation found, and making its assessment on an equitable basis, the Court awards the applicant association EUR 7,500 and each individual applicant EUR 9,750 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "168. The applicants also claimed EUR 1,764 for the costs and expenses incurred before the domestic courts in respect of the various domestic proceedings relating to the instant case, and EUR 1,500 for those incurred before the Court (namely, their lawyer’s fee). Relevant invoices were attached to the claim.", "169. The Government contested the claims and argued that the costs claimed in respect of legal representation before the Court were excessive.", "170. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award to the applicants jointly the sum of EUR 1,764 for costs and expenses in the domestic proceedings and the sum of EUR 1,500 for the proceedings before the Court, plus any tax that may be chargeable to the applicants. The total sum awarded in respect of costs and expenses is thus EUR 3,264.", "Default interest", "171. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1961. According to the latest information in the Court ’ s possession, he was serving a sentence in the Pravieniškės Correctional Home.", "A. Internet access", "6. On 30 May 2006 the applicant wrote to the Ministry of Education and Science ( Švietimo ir mokslo ministerija, hereinafter “ the Ministry ” ), requesting information about the possibility of enrolling at university. He mentioned having graduated in 1996 from the Medical Faculty of Vilnius University. The applicant stated that he wished to pursue studies via distance learning to acquire a second university degree ( studijuoti neakivaizdiniu būdu aukštojoje mokykloje ), this time in “ law with a specialisation in human rights ” ( teisės studijos su žmogaus teisių pakraipa ). The applicant mentioned that he was a prisoner and thus could not physically attend the place of study.", "7. In a letter of 12 June 2006 sent to the applicant at the Pravieniškės Correctional Home, the Ministry of Education and Science wrote that information about the study programmes could be found on the website < www.aikos.smm.lt >. This website states that it belongs to the Ministry of Education and Science, and is administered by a public entity, the Centre for Information Technologies in Education ( Švietimo informacinių technologijų centras ), which is a public institution founded by the Ministry of Education and Science. The website contains information about learning and study possibilities in Lithuania. The website states the following about the aims of the “ AIKOS ” system:", "“AIKOS is an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania.", "AIKOS provides the possibility of searching information about professions, qualifications, studies and study programmes, educational and science institutions and rules of admission ...", "AIKOS allows users to submit a question to a consultant and to receive a reply ...", "The information provided in the central part of the AIKOS website under the sections ‘ I wish to learn ’, ‘ I wish to study ’, ‘ I wish to improve my qualifications ’ reflects only the current and most pertinent information relevant to the current academic year and is aimed at those who wish to enter university, vocational school, or a secondary school, or who wish to improve their qualifications. The site also contains historical data regarding education ...", "AIKOS provides information to three groups of users: adults, children (up to fourteen years of age) and English speakers. The users may use more functions after they have registered on this site.", "The AIKOS website is refreshed daily, to reflect information about education and science institutions, study and learning programmes and the qualifications a person receives upon graduating from those programmes, ... programmes for improving qualifications ... It also provides information from the Lithuanian Labour Exchange about job vacancies and unemployment. The latter information on the AIKOS website is renewed monthly ... ”", "8. On 28 June 2006 the applicant wrote to the Pravieniškės Correctional Home authorities, noting the reply by the Ministry and asking to be granted Internet access to a website “ where there was information from the Ministry about studies, as well as to [the applicant ’ s] email accounts hosted on the Internet sites < www.one.lt > and < www.yahoo.com > ”.", "9. On 1 July 2006 the Pravieniškės Correctional Home governor replied that the prison authorities did not consider the Ministry ’ s reply to be comprehensive. In particular, the Ministry had not taken into account the applicant ’ s particular situation – namely that he was in prison. The prison considered that the Ministry should have provided a comprehensive reply in writing. According to the prison governor, “ given that the Ministry ’ s reply did not satisfy [the applicant], the latter should write to the Ministry again, so that he is provided with a comprehensive reply ”.", "10. The prison governor also informed the applicant that the request to have Internet access could not be granted because at that time none of the legislation allowed the prisoners to use the Internet or to have a mailbox. For that reason, the Pravieniškės Correctional Home authorities were unable to grant the applicant ’ s request.", "11. The applicant then lodged a complaint with the Department of Prisons ( Kalėjimų departamentas ), arguing that none of the laws prohibited him from obtaining information from a State institution electronically. The applicant referred to the Ministry ’ s reply and asked to be granted Internet access.", "12. On 26 July 2006 the Department of Prisons responded that the legal instruments regulating the execution of sentences did not permit prisoners to use the Internet. It was suggested that the applicant again ask the Ministry to provide the information he sought.", "13. On 1 August 2006 the applicant started court proceedings, referring to his correspondence with the Ministry and challenging the Pravieniškės Correctional Home authorities ’ decision not to grant him access to Internet.", "14. In their written response to the court, the Pravieniškės Correctional Home authorities noted that, although prisoners had a right to address requests and complaints to the State authorities under Article 100 of the Code of the Execution of Sentences (see paragraph 29 below), this meant correspondence by regular post and not via electronic communication. Furthermore, the use of mobile phones in prisons was prohibited so that prisoners could not continue their criminal activity whilst serving a sentence. According to the Pravieniškės Correctional Home authorities, a number of fraudsters had already cheated people of large sums of money with the help of mobile phones. If the prisoners had the right to use Internet, they could pursue criminal activities and could also coordinate the activities of criminal organisations. Lastly, given that postal correspondence between prisoners was not permitted, providing prisoners with access to the Internet would make that prohibition pointless. The same was true regarding the prohibition in the 1 st Annex of the Code of the Execution of Sentences of the prisoners ’ possession of topographic maps (see paragraph 30 below).", "15. The Prisons Department also asked the court to dismiss the applicant ’ s complaint, arguing that although Article 96 of the Code of the Execution of Sentences permitted prisoners to use computers (see paragraph 29 below), this did not encompass the right to Internet use. There was no right under Lithuanian law for a prisoner to be provided with Internet access.", "16. On 2 February 2007 the Kaunas Regional Administrative Court dismissed the applicant ’ s complaint. Having reviewed the legal provisions regulating prisoners ’ conditions of detention, the court pointed out that the prisoners could communicate with State institutions by postal correspondence and that their letters had to be sent via the prison authorities (see paragraph 33 below). Giving Internet access to prisoners would not be compatible with those legal norms. However, as the Internet was not an object, it was not possible to list Internet among the “ objects ” which the prisoners were not allowed to have in prison. At the same time, from the existing ban on telephone and radio communication devices in prison it was obvious that this ban included the Internet. Such prohibition was aimed at preventing crimes being committed in prison. The court also observed that the requirements were set by order of the prison authorities and were therefore mandatory for the applicant, as he was under an obligation to obey prison orders.", "17. The applicant appealed, disputing the lower court ’ s interpretation of domestic law. He also argued that the lower court had ignored the fact that the core of his complaint was the restriction of his right to education and the right to obtain information. The applicant relied on Article 25 of the Constitution (see paragraph 28 below), and Articles 10 and 14 of the Convention.", "18. The Pravieniškės Correctional Home authorities replied, indicating that there was “ a secondary school ( vidurinė mokykla ) in the prison where students could access all the literature necessary for their studies. The secondary school graduation exams showed good results ”. Furthermore, the prisoners could pursue computer literacy studies organised by the Elektrėnai vocational school ( Elektrėnų profesinio rengimo centras ), and that institution had not asked for Internet access. The prison thus considered that Internet access, or the lack thereof, had no impact on the quality of studies.", "19. On 11 December 2007 the Supreme Administrative Court dismissed the applicant ’ s complaint. The court noted that, for its users, the Internet provided very wide opportunities to use email, to obtain information, to download files, and to sell or buy things. The Internet could be used for more than merely educational purposes. However, the right to use the Internet was not absolute and this right could be restricted to certain social groups. This stemmed from Article 10 of the Code of the Execution of Sentences (see paragraph 29 below). There was no legal provision in Lithuania permitting prisoners to use the Internet. Even so, the prisoners ’ right to have computers could not be interpreted so widely as to encompass the right to have Internet access. The Supreme Administrative Court lastly noted that if prisoners had access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners ’ activities.", "20. On 30 June 2006 the Elektrėnai Vocational Educational Centre ( Elektrėnų profesinio mokymo centras ) awarded the applicant a diploma in computer skills.", "21. According to the Government, in 2007-2008 the applicant had attended English language courses and computer literacy courses organised by a secondary school in Kaunas region.", "B. Conditions of the applicant ’ s detention and seizure of his computer", "22. In 2006 the applicant started court proceedings, arguing that in July 2006 he had been held in the Lukiškės Prison for seven days in degrading conditions. Among other things, he also argued that the Lukiškės Prison authorities had seized the personal computer which the applicant had brought with him into prison.", "23. On 15 January 2007 the Vilnius Regional Administrative Court dismissed the claim by the applicant as unfounded.", "24. In a final ruling of 12 October 2007, the Supreme Administrative Court concluded that the computer had been unlawfully seized by the Lukiškės Prison authorities. However, the court found that the conditions of the applicant ’ s detention had been satisfactory overall, except for a few minor details, and that the gravity of those violations was not such as would amount to inhuman or degrading treatment.", "C. Denial of extended visits", "25. In 2006 the Pravieniškės Correctional Home authorities granted the applicant ’ s request for an extended visit by his parents. However, the applicant later committed a disciplinary offence, and for that reason the extended visit was denied.", "26. On 4 May 2007 the Kaunas Regional Administrative Court upheld the refusal of the extended visit as legitimate.", "27. By a final ruling of 6 February 2008 the Supreme Administrative Court upheld the lower court ’ s decision." ]

[ "II. RELEVANT DOMESTIC LAW", "28. The Constitution reads as follows:", "Article 25", "“ Everyone shall have the right to have his own convictions and freely express them.", "No one must be hindered from seeking, receiving, or imparting information and ideas.", "The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order.", "The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation.", "Citizens shall have the right to receive, according to the procedure established by law, any information held about them by State institutions. ”", "29. The Code of the Execution of Sentences ( Bausmių vykdymo kodeksas ), as in force in the period between 1 June 2006 and 28 February 2010, read as follows:", "Article 10. Legal status of prisoners", "“ 1. Lithuanian citizens serving a sentence shall have all the rights, freedoms and duties established by law for the Lithuanian citizens with the restrictions established by law or the court judgment ... ”", "Article 11. General rights of prisoners", "“ 1. In accordance with the procedure set out by law, prisoners have a right:", "1) to receive, in writing, information concerning the manner and conditions for serving the punishment, as well as information concerning their rights and duties ...", "2) to address the correctional institution administration or the State or municipal institutions ... with proposals, requests and complaints ... ”", "Article 96. The right of prisoners to use televisions, computers, video and audio players, radios and playstations", "“ 1. Prisoners, other than those serving a sentence under the conditions of a disciplinary group, are allowed to use televisions, computers, video and audio players, radios, playstations and other items indicated in the Internal Rules of Correctional Facilities that were purchased using money held in their personal accounts or handed over by a spouse, partner or close relative.", "2. Rules governing the use of televisions, computers, video players, radios, playstations and other items are set out in the Internal Rules of Correctional Facilities ... ”", "Article 99. Prisoners ’ right to correspondence", "“ 1. Prisoners are allowed to send and receive letters without restriction on their number.", "2. Correspondence between prisoners kept in places of detention on remand, police custody or correctional institutions, other than between spouses or close relatives, is prohibited.", "3. The administrative authorities of the correctional institution shall deliver letters received in the name of a prisoner and shall also send off letters handed to them by a prisoner within three working days of the receipt or handing in thereof.", "4. The postage cost of sending such letters shall be covered by the prisoners.", "5. In order to prevent crimes being committed, or to protect the rights and freedoms of others, letters received or sent by prisoners can be censored following a reasoned decision by a prosecutor, or the director of a correctional facility or a court decision. ”", "Article 100. Prisoners ’ right to submit proposals, applications, petitions and complaints to the State and municipal officials, to non-governmental organisations and to international institutions", "“ 1. Prisoners have the right to submit proposals, applications, petitions and complaints to State and municipal officials, to non-governmental organisations and to international institutions. If necessary, explanatory letters from the administrative authorities of a correctional facility may be attached to a prisoner ’ s proposal, application, petition or complaint.", "2. The proposals, applications and complaints to State and municipal officials and to international institutions ... shall not be subject to censorship and shall be sent off within one day of their receipt by the prison authorities.", "3. Replies to prisoners ’ proposals, applications, petitions and complaints shall be delivered to the prisoners and must be signed for ...", "5. Prisoners are prohibited from sending anonymous or collective complaints to State or municipal institutions or officers.", "6. Prisoners are prohibited from submitting to State and municipal institutions proposals, applications, petitions and complaints on behalf of other prisoners, nor may they submit them by means other than through the administrative authorities of the correctional facility.", "7. The postage cost of sending such proposals, applications, petitions and complaints shall be covered by the prisoner concerned. ”", "Article 102. Prisoners ’ right to make a telephone call", "“ 1. Prisoners are allowed to make telephone calls. [The number of phone calls a prisoner may make depends of the severity of correctional institution and the disciplinary group that a prisoners belongs to].", "2. A prisoner may make a phone call [if he can cover the costs of that telephone conversation].", "3. Phone calls between prisoners kept in places of detention on remand, police custody or correctional institutions are prohibited ... ”", "Article 1 10. Special duties of prisoners who are serving prison sentences", "“ 1. Prisoners serving prison sentences must:", "1) comply with the established rules for the correctional facilities;", "2) comply with the demands of the correctional facility administrative authorities ... ”", "30. Annex no. 1 to the Code of the Execution of Sentences, as in force in the period between 1 June 2006 and 28 February 2010, read:", "“ 1. List of prohibited items and articles ( daiktai ir reikmenys ) which may not be kept by prisoners serving a prison sentence:", "( ... )", "6. ... telephones (their parts and accessories), means of radio communication ...", "( ... )", "16. Topographic maps ... ”", "31. As of 1 March 2010, the aforementioned Annex no. 1 reads:", "List of items and articles which are not permitted to be kept by persons serving a prison sentence:", "“ 6. ... telephones (their parts and accessories), and other means of electronic communication. ”", "32. Annex no. 2 to the Code of the Execution of Sentences, as in force in the period between 1 June 2006 and 28 February 2010, read:", "List of tasks which persons serving a prison sentence may not carry out :", "“ 1. Tasks involving copying machines, radio and electronic communications ... ”", "33. The Internal Rules of Correctional Facilities ( Pataisos įstaigų vidaus tvarkos taisyklės ), approved by the Minister of Justice order no. 194 of 2 July 2003, at the relevant time read:", "“ 192. The prisoners must submit proposals, requests, petitions or complaints in writing. Proposals, requests, petitions or complaints, which need to be sent out by post, must be handed to the correctional facility ’ s administration in a postal envelope ... “", "34. The Law on Education ( Švietimo įstatymas ) in force at the time when the applicant contacted the Ministry of Education and Science read:", "Article 26. Provision of information about education", "“ 1. The purpose of providing information about education is to furnish a person with information to help him or her choose the right education and education provider, as well as the aspired education and profession in line with his interests, dispositions and abilities.", "2. A school shall make public the information about programmes of formal and non ‑ formal education implemented at schools, choices offered, terms of admission, paid services, teachers ’ qualifications, major school survey findings, and the traditions and achievements of the school community.", "3. Vocational information and vocational guidance services shall include the provision of information about opportunities afforded by vocational training programmes, higher education study programmes ( aukštojo mokslo studijų programas ) ... employment prospects on the labour market in Lithuania, as well as consultations. This service shall be provided by schools, information centres, consultancy companies and labour exchanges ( darbo biržos ) in compliance with requirements laid down by the Minister of Education and Science and the Minister of Social Security and Labour. ”", "III. RELEVANT INTERNATIONAL MATERIALS", "35. In the Second General Report on its activities (CPT/Inf (92) 3 [EN]), published on 13 April 1992, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter, “the CPT”) noted the following in relation to conditions of imprisonment:", "“47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners. This holds true for all establishments, whether for sentenced prisoners or those awaiting trial. The CPT has observed that activities in many remand prisons are extremely limited. The organisation of regime activities in such establishments – which have a fairly rapid turnover of inmates – is not a straightforward matter. Clearly, there can be no question of individualised treatment programmes of the sort which might be aspired to in an establishment for sentenced prisoners. However, prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature. Of course, regimes in establishments for sentenced prisoners should be even more favourable. ”", "36. Other Council of Europe and international law documents concerning the role of Internet in connection to the right to receive and impart information are quoted in Kalda v. Estonia (no. 17429/10, §§ 23-25, 19 January 2016).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "37. The applicant complained that he had not had Internet access in prison. He argued that this had prevented him from receiving education ‑ related information, in breach of Article 10 of the Convention. This provision reads:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ”", "A. The submissions by the parties", "1. The applicant", "38. The applicant contended that the restriction of inmates ’ use of the Internet in prison was not prescribed by law. The legislation relied on by the Government, namely point 6 of Annex 1 to the Code of the Execution of Sentences (see paragraph 30 above), which explicitly prohibited prisoners from having telephones and other means of communication such as radios, could not be regarded as formulated with sufficient precision to be foreseeable and therefore as meeting the Court ’ s standards. The fact that none of the legal rules clearly and unambiguously stated that prisoners may not be granted access to the Internet was further supported by the fact that Article 96 of the Code of the Execution of Sentences allowed prisoners to use computers and radios (see paragraph 29 above). The Government themselves stated that the restriction on Internet use by prisoners was only implicit, and was derived systemically from the regime applicable to prisoners per se.", "39. The applicant further argued that in his case restricting the use of Internet in prison had had no connection with the aim of preventing crimes or other offences. In fact, he had requested Internet access only to the website indicated to him by the Ministry of Education and Science, and only to obtain specific information, that is to say, information about distance learning possibilities and programmes in Lithuania.", "40. Lastly, the prohibition had not been proportionate. The Ministry of Education and Science, which was a competent State authority in the field of education in Lithuania, had explicitly told the applicant that all the information of interest about the possibilities for distance learning in higher education and study programmes was accessible via the Ministry ’ s official website at < www.aikos.smm.lt >. The Ministry, as the official body responsible for providing information about study programmes, had indicated no alternative ways or means for the applicant to obtain that information. The applicant further submitted that information about study programmes and the opportunities for distant studies was of a constantly evolving nature. The educational establishments usually updated such information in the course of the year. Accurate information was therefore only available on the Internet and without Internet access the applicant had no means of obtaining the information necessary to pursue his studies. The applicant lastly pointed out that a number of States permitted limited Internet access in prisons for educational purposes, thus showing that the absolute restriction that existed in Lithuania was disproportionate.", "2. The Government", "41. The Government argued that the applicant had not properly exhausted the available domestic remedies, because he had not complained about the Ministry ’ s response in separate court proceedings − a fact which the prison authorities found incomprehensible. To the Government ’ s knowledge, neither had the applicant made enquiries directly to higher education establishments in Lithuania which provided legal studies.", "42. Alternatively, the Government submitted that the complaint was manifestly ill-founded, as the denial of one particular means of receiving information could have been circumvented by using other means available to the applicant.", "43. As the third alternative, the Government submitted that the complaint was inadmissible for the applicant had not suffered a significant disadvantage, because he had followed certain courses in the Pravieniškės Correctional Home and could obtain information sought by other means (see paragraph 46 below). The applicant ’ s complaints had been examined by the domestic courts, which had come to reasoned decisions. The Government also considered that there was clear case-law of the Court to the effect that States ’ positive obligations under Article 10 were not interpreted as requiring them to provide a particular form of access to information for prisoners.", "44. Should the Court nevertheless find that there had been an interference with the applicant ’ s right to receive information, the Government considered that that interference had had a basis in law. The implicit prohibition of prisoners ’ use of the Internet stemmed from the statutory prohibition of the use of telephones and radios as communication devices, and this had been properly examined by the domestic courts in 2007. Taking into account the technological developments, the Code of the Execution of Sentences had been amended in 2010 in order to explicitly include a prohibition of the use of means of electronic communication by prisoners (see paragraph 31 above).", "45. The prohibition of Internet access in prison was aimed at preventing crime, given that the Internet could be used as a means of communication like other prohibited items, such as mobile phones, which prisoners sometimes use illegally from inside prison to commit new crimes − particularly telephone fraud − or to influence participants in criminal proceedings.", "46. The Government also considered that the interference had been necessary and proportionate. As noted by the Supreme Administrative Court, the wide scope of opportunities afforded by the Internet could pose a threat to the rights of other persons. This, in turn, would require “ huge efforts ” by the prison authorities to prevent any such potential illegal acts. The Internet was only one means of receive information, and the prisoners could effectively exercise that right by other means, such as by postal correspondence (letters) via the prison authorities. In the present case, the information which the applicant sought was available in various forms – the information concerning admission to educational institutions is announced in the press, special publications are printed, and such information could also have been imparted by the applicant ’ s relatives. Prisoners may also receive information concerning the possibility of studies in social rehabilitation units or correctional institutions. General and vocational education was organised in Lithuania in prisons so as to guarantee the inmates ’ the right to education, and the applicant had made use of those possibilities whilst serving his sentence (see paragraphs 20 and 21 above).", "47. The Government pointed out that, whereas in his initial request of 28 June 2006 to the prison authorities the applicant had specifically asked for access to the Ministry ’ s website (see paragraph 8 above), in his lawsuit of 1 August 2006 before the Kaunas Regional Administrative Court (see paragraph 13 above) the applicant had asked for general access to the Internet, instead of complaining about his inability to obtain some particular information. As noted by the Lithuanian courts, the applicant also sought access to his email accounts, whereas the Convention institutions had already accepted that certain limitations as regards prisoners ’ correspondence did not infringe the guarantees of Articles 8 and 10 of the Convention (the Government relied on the Commission decision in X v. the United Kingdom, no. 5270/72, 8 July 1974).", "48. Lastly, Government argued that most of the Council of Europe member States restricted Internet use in correctional institutions.", "B. The Court ’ s assessment", "1. Admissibility", "49. The Court notes first of all that before the domestic courts the applicant challenged the decision by the Pravieniškės Correctional Home authorities, under whose effective control he was, not to grant him Internet access. For the applicant, such access was indispensable for the purposes of obtaining education - related information (see paragraph 17 above). The Court has also recently observed that an increasing amount of services and information is available only via the Internet (see Kalda v. Estonia, no. 17429/10, § 52, 19 January 2016 ). That being so, and given that the applicant ’ s complaint is construed as concerning the right to receive information – thus falling under Article 10 of the Convention − as opposed to a complaint about the denial of education as such, the Court rejects the Government ’ s objection concerning the failure to properly exhaust the domestic remedies by, firstly, not having written letters to Lithuanian educational institutions in Lithuania and by, secondly, not having pursued court proceedings against the Ministry (see paragraph 41 above). As to the first avenue, it was not even a remedy within the sense of Article 35 § 1 of the Convention. As to the second avenue, the Court notes that as a remedy for his grievance of lack of access to information the applicant chose to pursue court proceedings against the Pravieniškės Correctional Home which had effectively barred him from accessing the Ministry ’ s website. In this context the Court recalls that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Leja v. Latvia, no. 71072/01, § 4 6, 14 June 2011 ).", "50. The Court also considers that the Government ’ s objection about the applicant not having suffered a significant disadvantage (see paragraph 43 above) is intrinsically linked to the merits of the applicant ’ s complaint. Accordingly, it must be joined to the merits.", "51. The Court furthermore finds that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.", "2. Merits", "(a) On the existence of an interference", "52. The Court has consistently recognised that the public has a right to receive information of general interest. Furthermore, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart (see Kalda, cited above, §§ 41 and 42).", "53. In the present case, however, the question at issue is not the authorities ’ refusal to release the requested information ( compare and contrast Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § § 149 ‑ 156, 8 November 2016 ); the applicant ’ s request concerned information that was freely available in the public domain. Rather, the applicant ’ s complaint concerns a particular means of accessing the information in question: namely, that he, as a prisoner, wished to be granted access – specifically via the Internet – to information published on a website belonging to the Ministry of Education and Science (see paragraph 7 above).", "54. In this connection, the Court reiterates that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015; Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009).", "55. Nevertheless, the Court notes that imprisonment inevitably entails a number of restrictions on prisoners ’ communications with the outside world, including on their ability to receive information. It considers that Article 10 cannot be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners (see Kalda, cited above, § 45). However, in the circumstances of the present case, since access to information relating to education is granted under Lithuanian law (see paragraph 34 above ), the Court is ready to accept that the restriction of access to the Internet site to which the Ministry referred the applicant in reply to his request to provide information constituted an interference with the right to receive information.", "(b) Whether the interference was justified", "56. The above-mentioned interference contravened Article 10 of the Convention unless it was “ prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of that Article and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn.", "(i) Whether the interference was prescribed by law", "57. The parties have disputed whether the restriction of prisoners ’ use of the Internet had a basis in domestic law. The Court acknowledges that in 2006, when the applicant requested Internet access in the Pravieniškės Correctional Home, no such explicit prohibition on the use of Internet in prisons existed. The ban on the use of “ other means of electronic communication ”, which could be understood as also encompassing means providing Internet access, was only introduced in March 2010 in Annex no. 1 of the Code of the Execution of Sentences (see paragraph 31 above). Be that as it may, the Court notes that in 2006 numerous domestic legal norms did indeed provide for an explicit ban on telephone and radio communications by prisoners, prohibited the prisoners from working with radio and electronic communication devices, and required that all correspondence by prisoners ’ be conducted in writing and sent by post via the prison authorities (see paragraphs 29, 30 and 32 above). It is not unreasonable to hold that all those prohibitions could have been circumvented, if prisoners were allowed access to Internet. The Court therefore does not consider that the applicant was left without an indication that there was a prohibition on the use of the Internet in prison. It therefore concludes that the prohibition on the inmates ’ use of the Internet in prison was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.", "(ii) Whether the interference pursued a legitimate aim", "58. The Court also accepts the Government ’ s argument (see paragraph 45 above ) that the interference in question served the aim of protecting the rights of others and preventing disorder and crime (see Kalda, cited above, § 47). This was moreover noted by the Pravieniškės Correctional Home authorities, as well as by the administrative courts of two instances (see paragraphs 14, 16 and 19 above). The Court accepts that the domestic courts must have knowledge of the situation prevailing in the country when a number of telephone fraudsters from prisons had already cheated people of large sums of money.", "(iii) Whether the interference was “ necessary in a democratic society”", "59. The Court notes that the website to which the applicant wished to have access contained information about learning and study programmes in Lithuania. The information on that site was regularly updated to reflect, for example, admission requirements for the current academic year. It also provided up to date information from the Lithuanian Labour Exchange about job vacancies and unemployment (see paragraph 7 above). It is not unreasonable to hold that such information was directly relevant to the applicant ’ s interest in obtaining education, which is in turn of relevance for his rehabilitation and subsequent reintegration into society. As underlined by the CPT, a satisfactory programme of activities, including education, is of crucial importance for the well-being of all detainees, including prisoners awaiting trial. This is all the more relevant in relation to sentenced prisoners (see paragraph 35 above), and the applicant, who was serving a sentence in the Pravieniškės Correctional Home, was one such prisoner (see paragraph 5 above). In fact, as regards the Pravieniškės Correctional Home, the CPT specifically noted after its 2008 visit that steps should be taken to ensure that all sentenced prisoners in that prison were able to engage in purposeful activities of a varied nature, such as educational programmes (see point 49 in fine of the CPT report, quoted in Mironovas and Others v. Lithuania, nos. 40828/12, 29292/12, 69598/12, 40163/13, 66281/13, 70048/13 and 70065/13, § 65, 8 December 2015 ).", "60. The Court also considers that accessing the AIKOS website in the manner advised by the Ministry of Education and Science – namely browsing through it in order to find information that was relevant – was more efficient than making requests for specific information, as was proposed by the Government (see paragraph 4 6 above). Indeed, in order to make a specific request to an educational institution one would need to be aware of the competencies of that institution and the services provided by it. Such preliminary information would be provided by the AIKOS website. The Court furthermore notes the applicant ’ s argument that the information about the study programmes was of a constantly evolving nature (see paragraph 40 above). This fact is also highlighted on the AIKOS website itself (see paragraph 7 above).", "61. Turning to the Lithuanian authorities ’ decisions, the Court cannot but observe that they essentially focussed on the legal ban on prisoners having Internet access as such, instead of examining the applicant ’ s argument that access to a particular website was necessary for his education (see paragraphs 10, 12, 14, 15, 16 and 19 above). It is true that the Pravieniškės Correctional Home authorities pointed out the presence of a secondary school in that prison, as well as the possibility of following computer courses at Elektrėnai vocational school (see paragraph 18 above). However, this appears to be a very remote proposition in relation to the applicant ’ s wish to acquire a second university degree (see paragraph 6 above). In the present case the Court also observes that the prison authorities or the Lithuanian courts did not even go so far as to argue that extended Internet access could incur additional costs for the State (see paragraphs 14, 15, 16 and 19 above). Whilst the security considerations arising from prisoners ’ access to Internet, as such, and cited by the prison authorities (see paragraph 14 above ) may be considered as relevant, the Court notes that the domestic courts failed to give any kind of consideration to the fact that the applicant asked for access to a website created and administered by the Ministry of Education and Science, which was a State institution. In fact, both courts were completely silent on the matter of education (see paragraphs 16 and 19 above).", "62. Lastly, the Court is mindful of the fact that in a number of the Council of Europe ’ s and other international instruments the public-service value of the Internet and its importance for the enjoyment of a range of human rights has been recognised. Internet access has increasingly been understood as a right, and calls have been made to develop effective policies to achieve universal access to the Internet and to overcome the “digital divide” ( see Kalda, cited above, § 52 ). The Court considers that these developments reflect the important role the Internet plays in people ’ s everyday lives, in particular since certain information is exclusively available on Internet. Indeed, as has already been established in this case, the AIKOS website provides comprehensive information about learning possibilities in Lithuania. In this connection it is also noteworthy that the Lithuanian authorities did not even consider a possibility of granting the applicant limited or controlled Internet access to this particular website administered by a State institution, which could have hardly posed a security risk.", "63. In these circumstances, the Court is not persuaded that sufficient reasons have been put forward in the present case to justify the interference with the applicant ’ s right to receive information. Moreover, having regard to the consequences of that interference for the applicant (see paragraphs 59 ‑ 61 above), the Government ’ s objection that the applicant had not suffered significant disadvantage (see paragraph 50 above) must be dismissed.", "64. The Court concludes that the interference with the applicant ’ s right to receive information, in the specific circumstances of the present case, cannot be regarded as having been necessary in a democratic society.", "There has accordingly been a violation of Article 10 of the Convention.", "II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "65. In another application form which the applicant signed on 28 August 2008, and which the Court received on 12 September 2008, the applicant further complained about the seizure of his computer and the conditions of his detention in Lukiškės Prison. Given that the Supreme Administrative Court adopted a final decision in the set of proceedings concerning these issues on 12 October 2007 (see paragraph 24 above), the Court finds that this complaint has been lodged out of time and is therefore inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.", "66. In the application form which the applicant signed on 11 November 2008, and which the Court received on 5 December 2008, the applicant complained of being denied extended visits in the Pravieniškės Correctional Home. The Court notes, however, that the domestic proceedings in connection with this complaint ended with the Supreme Administrative Court ’ s decision of 6 February 2008 (see paragraph 2 7 above). It follows that this complaint must likewise be dismissed as being lodged out of time, in accordance with Article 35 §§ 1 and 4 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "67. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "68. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage.", "69. The Government disputed the claim as unfounded and excessive.", "70. The Court considers that in the circumstances of this case the finding of a violation constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant (see, mutatis mutandis, Kalda, cited above, § 58).", "B. Costs and expenses", "71. The applicant claimed reimbursement of costs, without specifying the sum claimed.", "72. The Government made no comment on this issue.", "73. The Court notes that the applicant was granted legal aid under the Court ’ s legal aid scheme, under which the sum of EUR 850 has been paid to the applicant ’ s lawyer to cover the submission of the applicant ’ s observations and additional expenses. In the absence of any specific claims by the applicant as well as any supporting documents, the Court decides to make no award under this head." ]

[ "I. the CIRCUMSTANCES OF THE CASE", "7. The Socialist Party (“the SP”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 15 below).", "Mr İlhan Kırıt and Mr Doğu Perinçek, the second and third applicants, were respectively Chairman and former Chairman of the SP. They live in Istanbul.", "8. The SP was formed on 1 February 1988. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraphs 16 and 17 below).", "First application to have the Socialist Party dissolved and the prosecution of its leaders", "9. On 15 February 1988, when the SP was preparing to take part in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the SP. Relying in particular on passages from its programme, he accused the party of having sought to establish the domination of the working class with a view to establishing a dictatorship of the proletariat (Articles 6, 10 and 14 and former Article 68 of the Constitution and sections 78 and 101(a) of Law no. 2820).", "10. In a judgment of 8 December 1988, published in the Official Gazette of 16 May 1989, the Constitutional Court dismissed the application as unfounded, as it considered that the political objectives stated in the SP's programme did not infringe the Constitution.", "11. Criminal proceedings were then brought in the National Security Courts against some of the leaders of the SP, including Mr Perinçek. They were accused of spreading harmful propaganda in favour of the domination of one social class over the others, contrary to Article 142 of the Turkish Criminal Code, as then worded (see paragraph 18 below). The allegation against Mr Perinçek was based in particular on speeches he had made at two public meetings on 10 February 1990 at Diyabakır and 21 March 1990 at Van and on an article that had appeared in a political journal on 4 March 1990, that is to say before his election as Chairman of the SP on 6 July 1991. Following the repeal of Article 142 of the Criminal Code by Law no. 3713 of 12 April 1991 (the Prevention of Terrorism Act), the accused were all acquitted. The SP later published the speeches in question under the titles: “ Serhildan çağrıları-1, Kawa ateşi yaktı ” and “ Serhildan çağrıları-2, Karpuz değil cesaret ekin ” (see paragraph 13 below).", "12. On 26 August 1991 the High Electoral Committee – which had responsibility under the Constitution for ensuring the fairness of elections – decided that the SP satisfied all the conditions necessary to take part in the general election of 20 October 1991. The party consequently ran an election campaign.", "B. Second application to have the Socialist Party dissolved", "13. On 14 November 1991 Principal State Counsel applied to the Constitutional Court for a second time for an order dissolving the SP. He accused the party of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation contrary to Articles 3, 4, 14 and 66 and former Article 68 of the Constitution, and sections 78, 81 and 101(b) of Law no. 2820.", "In support of his application, Principal State Counsel relied in particular on the following extracts from the SP's election publications and from oral statements made by its Chairman, Mr Perinçek, at public meetings and on television.", "Extracts from Socialist Party publications", "(a) “ Serhildan çağrıları-1, Kawa ateşi yaktı ” (“Calls to stand up – no. 1, Kawa [5] has lit the fire”)", "“... Dear friends, ... the second dynamic is the Kurdish dynamic. It is the call for equality and freedom, [it is] the Kurds' claim to rights as a nation. It is a request that the rights which the Turks enjoy ... be granted to the Kurds also.", "At the beginning of the century, a war of independence was waged ... in circumstances in which imperialists occupied the country and Turks and Kurds depended on one another and had to unite and fight, side by side. The Amasya Protocol provided: 'The homeland is composed of the lands where the Turks and the Kurds live.' At the Erzurum and Sivas Congresses, oral and written declarations were made recognising the ethnic social and geographical rights of Kurds ... once the war was over and the men had hung up their weapons, an official ideology developed ... as though there was no longer any need for people from Urfa, Diyarbakır or Malatya to fight... Under that official ideology, there was no longer any room for Kurds. There were no more Kurds. Henceforth, only Turks existed...” (pages 7–8)", "(b) “ Serhildan çağrıları-2, Karpuz değil cesaret ekin ” (“Calls to stand up – no. 2, sow courage, not watermelons”)", "“... they can make this country ... a homeland of cultures, brotherhood, workers, [a homeland] where there is voluntary unity, where nations freely decide on their future and freely unite if they so wish... Long live brotherhood between Turks and Kurds! Long live the Turkish and Kurdish peoples!” (page 31)", "(c) “ Çözüm-4, Kürt sorunu ” (“Solution no. 4, the Kurdish problem”)", "“... The collapse started where the regime was most tyrannical and most vulnerable. The [political] parties of the status quo failed to the east of the Euphrates ... [They] are no longer to be seen in the lands where the Kurdish people live... (page 3)", "Why have the parties of the status quo disappeared from the Kurdish provinces? Because they are nationalists... Turkish nationalism has become bankrupt in the lands where the Kurdish problem will be resolved. Turkish nationalism has drawn its borders. It has divided Anatolia into two parts, situated to the east and west of the Euphrates. Turkish nationalism and its regime are in the process of drowning in the Euphrates. That is what is known as a bankrupt regime. (page 4)", "... After the mountains, the State also lost the villages and towns. That is why it counts directly on deterring the masses. State terror seeks to establish a new regime in Turkey, starting from the east... (page 10)", "The State pays village guards and special forces ... which it feeds to kill Kurds through the taxes it collects from the people. The cost of the bullets fired at Kurds, of petrol used in cross-border operations ..., in short, the cost of [this] special war is borne by the people... To bring inflation and ... poverty to an end, a peaceful solution must be found to the Kurdish problem. The Kurdish problem is at the same time a Turkish problem... Living freely, in brotherhood, heart to heart, in peace and harmony with the Kurdish people is a need ... for the Turkish people... Turks and Kurds are but one people. No Turk will be entitled to enter paradise if a single Kurd [still] remains in hell. The Socialist Party is determined to fight until the last Kurd is saved from hell. (pages 11–13)", "The Socialist Party is present on both sides of the Euphrates. It is the party of brotherhood between Kurds and Turks. The Socialist Party's determination in the face of the Kurdish problem has been demonstrated by its fight to combat State pressure on the Kurdish nation ..., its shared destiny in the poor Kurdish peasants' fight for survival ..., the fact that it has overcome the barrier of fear by holding meetings with thousands of people in the Kurdish villages and towns and has explained the Kurdish problem to working people throughout Turkey... Our party imparts this awareness. It sees a solution in the common destiny of peoples and their combat. To remedy the Kurdish problem, the Socialist Party has courage, ... a cause and a programme. (pages 15–16)", "The Kurdish nation has a full and unconditional right to self-determination. It may, if it wishes, create a separate State. The interest of the proletariat lies in the establishment, through democratic popular revolution, of a voluntary union founded on absolute equality of rights and freedoms. The right to secede is, at all times, an essential condition of that voluntary union.", "Whether or not people live together depends on the free will of nations. So that that will can be expressed, a referendum must be organised in the Kurdish provinces. During the referendum, those who are in favour of secession must also be allowed freely to express their views.", "Under current historical conditions, a solution favourable to the workers of both nations lies in a democratic federal republic, to which the two federated States adhere on an equal footing. In the federation, power will be exercised through popular assemblies elected democratically by districts, towns, federated States and the federal State, beginning with the neighbourhoods and villages.", "The prefectures and sub-prefectures, State governments and the federal government will be the executive bodies of those assemblies and accountable to them.", "The popular federal assembly will be composed of two assemblies: the assembly of the members of parliament and the assembly of the nations.", "The assembly of the members of parliament will be elected in a general election with one member of parliament elected by a given number of citizens.", "The assembly of nations will be constituted by an equal number of members elected from each of the two federated States.", "Legislation will be enacted on a majority vote in the two assemblies.", "Legislation which is rejected by one of the assemblies will not come into force.", "The Employment Code, and the Criminal, Civil and Procedural Codes will apply throughout the country and be adopted by the federal bodies.", "In those districts and provinces of each State where minority groups are in the majority, regional self-determination will be permitted if the people so desire.", "The federal Constitution will be the common Constitution of the two nations. It will come into force as soon it has been accepted, by referendum, by a majority in each of the two nations. Each State will also have its own Constitution. The federal Constitution will cover an increasing number of matters, to the extent that the federated republics consent thereto.", "The flag and national anthem of the federal republic will be the same for Turks and Kurds. Each federated State will have its own flag and anthem. The federation shall not have a name that refers to only one of the nations.", "Defence of the country, issues of war and peace, and entry into representative treaties in international relations will be the responsibility of the federal bodies.", "Each federated State will [however] be entitled to establish direct commercial and cultural relations with foreign countries and to open consulates.", "At each level of government, power will lie solely with the popular assemblies and the local authorities accountable to them. The prefecture, sub-prefectures, security forces and gendarmerie established under the current [central] government outside the scope of the proposed administrative system will be abolished. This democratic administrative system will also guarantee national equality and freedom.", "Local security forces will receive their orders from local government authorities and be accountable to local assemblies. In the villages, security forces will be composed of local young people, who will receive instructions from village committees.", "Seigniory, dependence on the head of a clan or any form of medieval relation that is incompatible with brotherhood or social development shall be abolished by an agrarian reform to be undertaken by the mobilisation of farmers under the direction of the village committees.", "In order that regional inequalities that have been aggravated by the market economy may be removed, the federal republic will increase its share of investment in regions that are economically underdeveloped. It will therefore guarantee and develop the economic basis of the union.", "With respect to the economy, a federal system of uniform statistics will be used.", "The freedom and right of each nation and each national or religious minority to develop its language and culture and to pursue political and associative activities will be guaranteed.", "The official languages will be Turkish and Kurdish. Each federated republic will have its own language as its official language. Decisions of the federal bodies will be drafted in both languages. From primary school to university and in all cultural institutions, means of education, research and communication, such as journalism, publishing, radio and television, etc., will be provided in both languages.", "The democratic culture of the Kurdish nation will be able to develop through the removal of the pressures that have been exerted on it up till now. Those in power will strive for free democratic cultural exchange with Turks and Kurds in other countries and an international culture common to all nations of the world to flourish in a pluralist and active environment.", "All bodies in power will endeavour [on the one hand] to eradicate, with all its foundations, the former culture idolising violence and advocating the use of force to solve problems between nations and in society and [on the other hand] to spread among the people an internationalist proletarian culture that respects mankind and despises violence.", "Against the fundamentalist nationalist culture according to which the history of the lands in which we live began with the war of Malazgirt and against all other forms of nationalism will be developed an internationalist, universal, humanitarian and democratic culture that will seek new cultural sources, enriched by the contribution of different peoples stemming from the historic depths of our country, and will draw on those resources. Original names will no longer be changed as they reflect the wealth of our country's universal culture; every place will be called by its known, established name.” (pages 16–20)", "2. Oral statements by the Chairman of the Socialist Party", "(a) At the opening ceremony of the Socialist Party Congress (24–25 August 1991)", "“The Socialist Party is the last bridge between the Kurdish and Turkish people... The current status quo has failed with respect to the Kurdish problem and its deafening collapse can be heard from here... What is the only possible solution? ... This issue can only be resolved by respecting the wish of the Kurdish people ... the real remedy lies with the Kurdish people. We will ask the Kurds: 'What do you want?' ... if, conversely, they seek secession, we will respect their wish. We will organise a referendum. We will ask the Kurdish people ..., everyone, from Hakkari to Antep: 'Do you want to create a separate State in our land or not?' The Socialist Party prefers unification... Who is inciting secession? Oppression [is]. The oppression of the Kurdish people by the Turkish State. We will defend unification by putting an end to that oppression and that will be proof of [our] acceptance of the Kurdish people's will... The Socialist Party will defend the union of the two peoples within the federation and the joint [exercise] of power... The Socialist Party is the last bridge between the Kurdish and Turkish people... No party other than the Socialist Party has shared the Kurds' destiny, taken up a position against the Turkish State or is able to maintain that position.”", "(b) During a television programme on 11 October 1991", "“... Let us now define [what they call] internal security. That is the Kurdish problem. If you put it in terms of internal security ..., you will have recourse to the gendarmes. If the problem is seen as a Kurdish one, you will resolve it by democracy and freedom. In fact, it is the present regime that has transformed the Euphrates into a border... It was an economic border... Then, they made the Euphrates a political border ... and, lastly, an ideological one... Turkish nationalism has drowned in the Euphrates; it cannot cross it ... because nationalism has no place in these lands... There is a Turkish problem but also a Kurdish problem ... a fraternal solution will come from the Socialist Party. The [other] five parties have become separatist ... because they were nationalist. We offer a fraternal solution, a federation. The Kurdish nation should be given the right to self-determination. That is how the right conditions for unification will come about... Union cannot be achieved through force. Your solutions have failed. You will see, the Socialist Party solution will prevail.”", "(c) At a public meeting in Ankara on 13 October 1991", "“... we will put a stop to the special war being [waged] in the east ... we will end it by replacing it with a programme of brotherhood between Kurds and Turks ... and, lastly, on a structural level, a federation in which both nations are on an equal footing... They say that they are troubled by the fact that the Euphrates is a border. Who made the Euphrates a border? They did! ... Free, voluntary union on an equal footing of the Kurdish and Turkish nations within a federation, provided that the Kurdish nation consents and so decides as master of its destiny and accepts it: that is the solution proposed by the Socialist Party. The two peoples, two nations are obliged [to accept]...”", "(d) During a television programme on 13 October 1991", "“... Because the Kurds of the village of Botan are standing up they are in the process of becoming their own masters... Is it you, the status quo, that has forbidden the use of the name 'Kurd'? The Kurdish people are standing up; they are becoming the centre of the debate; through their acts, they are imposing their identity and celebrating the Newroz [6] ... The oppressed Kurds are establishing their Constitution, making laws.”", "(e) At a public meeting at Şırnak on 16 October 1991", "“... The Socialist Party says that the Kurdish problem cannot be resolved by soldiers or bullets. The solution lies in independence ... in equality. The Kurdish and Turkish nations should have the same rights. The Kurdish and Turkish nations will form a popular republic ... and then one of them will survive and the other be oppressed; that is indefensible... It is the Socialist Party that is with the oppressed Kurdish people... By standing up, the Kurdish people have begun to demonstrate the combat they have been waging for years... The Kurdish people will bring about a new revolution... The oppressed Kurdish people ... are coming to join the Socialist Party... Long live the awakening! Long live our people!”", "(f) At a public meeting at Van on 17 October 1991", "“... Turkish nationalism has drowned in the Euphrates ... The State has oppressed the Kurdish people to the point of erasing their name, even of prohibiting its use; but bans come to nothing... The Kurdish reality is there and is asserting itself... Turks and Kurds remain brothers; there can be no brotherhood where there is slavery; there can be no brotherhood if one is master and the other slave; everyone should be equal and have the same rights... There can be no hope if Turks and Kurds do not unite... This equation should be noted down somewhere: the Turkish people plus the oppressed Kurdish people equals democracy, independence and freedom... Long live Kurdistan! ...”", "Relying on an audiovisual recording of the latter meeting, Mr Perinçek nevertheless denied, at a hearing before the Constitutional Court on 12 May 1992, that he had uttered the last sentence.", "C. Dissolution of the Socialist Party", "14. On 28 November 1991 the Constitutional Court sent Principal State Counsel's application to the SP, whose counsel filed preliminary written observations on 29 January 1992 and full observations on 30 March 1992, in which they first requested a hearing or, at the very least, leave to make further submissions orally. The Constitutional Court acceded to the latter request only and heard the party Chairman, Mr Perinçek, on 12 May, who had ceased to be Chairman of the party a short time before.", "Before the Constitutional Court the SP's representatives firstly contested the constitutionality of certain provisions of Law no. 2820 on which Principal State Counsel relied. They also argued that the court should not admit the SP's publications (see paragraph 13 above) in evidence against that party. They said that two of the publications were copies of a speech made by Mr Perinçek before his election as party Chairman on 6 July 1991; furthermore, they had been examined by the National Security Courts and found not to contravene the law (see paragraph 11 above).", "The party representatives went on to point out that on 8 December 1988 the Constitutional Court had dismissed the first application to have the SP dissolved on the basis of its programme (see paragraph 10 above). They maintained that the court would be contradicting itself if it now decided to dissolve the SP purely because of Mr Perinçek's oral statements, which, in the case before the court, were merely reiterations of paragraph 31 of the programme, which had already been reviewed by the Constitutional Court. They noted, lastly, that since the enactment of Law no. 3713 (the Prevention of Terrorism Act) which had, in particular, repealed Article 142 of the Criminal Code (see paragraph 18 below), it was no longer illegal to carry on Marxist-Leninist activities; in their submission, if one political party was treated differently from the others, the aim pursued by the Turkish legislature would be defeated.", "15. Pursuant to section 101 of Law no. 2820, the Constitutional Court made an order on 10 July 1992 dissolving the SP, which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107 of that Law. The order was published in the Official Gazette on 25 October 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (former Article 69 of the Constitution – see paragraph 16 below).", "In its judgment the Constitutional Court noted at the outset that the impugned publications of the SP bore the name and signature of its Chairman, Mr Perinçek, who was also the person who had made the oral statements on television. Those publications and statements accordingly also bound the SP and consequently were admissible as relevant evidence under section 101 of Law no. 2820.", "The Constitutional Court did not consider that either its or the National Security Courts' earlier judgments (see paragraphs 10–11 above) in any way affected its examination of the case before it, which concerned the political activities of the party, not of its leaders. Moreover, it could not accept that the fact that a provision of the Criminal Code making it an offence to behave in a certain way had been repealed meant that similar conduct no longer constituted a valid ground for dissolution under Law no. 2820.", "The Constitutional Court observed that unlike the issue that had been decided in its judgment of 8 December 1988, the one now before it was based on new facts and evidence and thus gave rise to a different question in law. It no longer had to be determined whether the programme and constitution of the SP were in conformity with the law, but solely whether its political activities were caught by the relevant prohibitions.", "In reaching its decision on the merits, the Constitutional Court noted, inter alia, that the SP referred in its political message to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality, the statements made by the SP concerning Kurdish national and cultural rights were intended to create minorities and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the Turkish State.", "Like all nationals of foreign descent, nationals of Kurdish origin could freely express their identity, but the Constitution and the law precluded them from forming a separate nation and State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey.", "The SP's political activity was also incompatible in aim with Articles 11 and 17 of the European Convention on Human Rights, since it was similar to that of terrorist organisations, notwithstanding a difference in the means employed.", "In short, objectives which, like those of the SP, encouraged separatism and incited a socially integrated community to fight for the creation of an independent federated State were unacceptable and justified dissolution of the party concerned." ]

[ "ii. relevant domestic law", "The Constitution", "16. The relevant provisions of the Constitution read as follows:", "Article 2", "“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”", "Article 3 § 1", "“The State of Turkey shall constitute with its territory and nation, an indivisible whole. The official language shall be Turkish.”", "Article 4", "“No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”", "Article 6", "“Sovereignty shall reside unconditionally and unreservedly in the nation.", "...", "Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...”", "Article 10 § 1", "“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”", "Article 14 § 1", "“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.”", "Article 66 § 1", "“Everyone linked to the Turkish State by nationality shall be Turkish.”", "(Former) Article 68", "“...", "No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...”", "(Former) Article 69", "“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution.", "...", "The decisions and internal running of political parties shall not be contrary to democratic principles.", "...", "Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.", "Political parties may be dissolved by the Constitutional Court, on an application by Principal State Counsel.", "Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party...”", "B. Law no. 2820 on the regulation of political parties", "17. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:", "Section 78", "“Political parties", "(a) shall not aim, strive or incite third parties to", "change the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State's territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...;", "jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.", "...", "(c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...”", "Section 80", "“Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.”", "Section 81", "“Political parties shall not", "(a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or", "(b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...”", "Section 90(1)", "“The constitution, programme and activities of political parties may not contravene the Constitution or this Law.”", "Section 101", "“The Constitutional Court shall dissolve a political party whose", "(a) constitution or programme ... is contrary to the provisions of Chapter 4 of this Law;", "(b) membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law ..., or whose Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions...", "(c) representative appointed ... by the administrative committee ..., makes oral statements on radio or television that are contrary to the provisions ... of this Law...”", "Section 107(1)", "“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”", "Chapter 4 of the Law, which is referred to in section 101, includes in particular section 90(1), which is reproduced above.", "C. The Criminal Code", "18. At the material time Article 142 of the Criminal Code provided:", "“Harmful propaganda", "1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or destroying the entire political or judicial order of the State shall, on conviction, be liable to a term of imprisonment of between five and ten years.", "2. A person who by any means whatsoever spreads propaganda in favour of the State's being governed by an individual or social group to the detriment of republicanism or democratic principles shall, on conviction, be liable to a term of imprisonment of between five and ten years.", "3. Any person who by any means whatsoever spreads propaganda inspired by racist theories aimed at abolishing in whole or in part public-law rights as guaranteed by the Constitution or undermining or eliminating patriotic sentiment shall, on conviction, be liable to a term of imprisonment of between five and ten years.", "...”", "PROCEEDINGS BEFORE THE COMMISSION", "19. The applicants applied to the Commission on 31 December 1992. They maintained that the dissolution of the SP by the Constitutional Court had infringed:", "(i) Article 6 §§ 1 and 2 and Articles 9, 10, and 11 of the Convention, taken individually and together with Articles 14 and (in the case of Articles 9, 10 and 11) 18 of the Convention;", "(ii) Articles 1 and 3 of Protocol No. 1.", "20. On 6 December 1994 the Commission declared the complaint under Article 6 § 2 of the Convention inadmissible and the remainder of the application (no. 21237/93) admissible.", "21. In its report of 26 November 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 11 of the Convention but no violation of Article 6 § 1, that no separate issue arose under Articles 9 and 10 and that it was unnecessary to consider separately the complaints under Articles 14 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1. The full text of the Commission's opinion is reproduced as an annex to this judgment [7].", "FINAL SUBMISSIONS TO THE COURT", "22. In their memorial, the Government “... asked the Court to declare that there had been no violation of Articles 6, 9, 10, 11, 14 or 18 of the Convention or of Articles 1 or 3 of Protocol No. 1”.", "23. The applicants asked the Court to hold that there had been a breach of the rights guaranteed by the aforementioned provisions of the Convention and Protocol No. 1.", "AS TO THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "24. The applicants maintained that the fact that the Socialist Party (“the SP”) had been dissolved and its leaders banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention, which provides:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "Applicability of Article 11", "1. Submissions of those appearing before the Court", "(a) The applicants", "25. The applicants maintained that there was no doubt that political parties came within the ambit of Article 11.", "(b) The Government", "26. In their memorial the Government submitted that Article 11 did not in any event apply to political parties. Where in its constitution or programme a party attacked a State's constitutional order, the Court should declare the Convention to be inapplicable ratione materiae or apply Article 17.", "27. The SP had intended through its activities unambiguously to break with Turkey's fundamental constitutional principles. It was apparent from what the SP said that the party considered that citizens of Kurdish origin had “nation” and “people” status and the right to “found a separate State”, that it advocated the setting up of a federation, without moreover excluding the creation of other federated bodies entitled to open consulates in other countries. As that amounted to challenging the very basis of the State, the Constitutional Court had had to review the constitutionality of that political aim. In so doing, it had followed the line taken by the German Constitutional Court in its judgment of 31 October 1991 on the right of foreign nationals to vote in local elections and by the French Constitutional Council in its decision of 9 May 1991 on the status of Corsica.", "In the Government's submission, the States Parties to the Convention had at no stage intended to submit their constitutional institutions, and in particular the principles they considered to be the essential conditions of their existence, to review by the Strasbourg institutions. For that reason, where a political party such as the SP had called those institutions or principles into question, it could not seek application of the Convention or its Protocols, since it was not the SP's freedom of association that was in issue in the present case, but the right to self-determination, which did not come within the compass of the Convention.", "At the very least, Article 17 of the Convention should be applied in respect of the SP since the party sought to justify the use of violence and to promote hatred of the Turkish State and the wrongful division of an entire people into two opposing camps. In so doing, the SP had said the same things as the Workers' Party of Kurdistan (“the PKK”), without distancing itself from any of the latter's methods. Moreover, the Constitutional Court had, in its judgment ordering the dissolution of the SP, recognised that Article 17 was relevant in the case of the SP and concluded that the party's activities were covered by that provision.", "(c) The Commission", "28. The Commission expressed the opinion that there was nothing in the wording of Article 11 to limit its scope to a particular form of association or group or to suggest that it did not apply to political parties. On the contrary, if Article 11 was considered to be a legal safeguard that ensured the proper functioning of democracy, political parties were one of the most important forms of association it protected. In that connection, the Commission referred to a number of decisions in which it had examined, under Article 11, various restrictions on the activities of political parties and even the dissolution of such parties, thereby implicitly accepting that Article 11 applied to that type of association (see the German Communist Party case, application no. 250/57, Yearbook 1, p. 225; the Greek case, Yearbook 12, p. 170, § 392; the France, Norway, Denmark, Sweden and the Netherlands v. Turkey case, applications nos. 9940–9944/82, Decisions and Reports 35, p. 143).", "At the hearing before the Court the Delegate of the Commission also said that it was unnecessary to apply Article 17 of the Convention, since neither the SP's programme nor the statements made by Mr Perinçek that were in issue indicated that they had sought to destroy the rights and freedoms protected by the Convention.", "2. The Court's assessment", "29. In its judgment in the case of United Communist Party of Turkey and Others v. Turkey, the Court held that political parties are a form of association essential to the proper functioning of democracy and that in view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Article 11. The Court noted on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 17, §§ 25 and 27). The Court sees no reason to come to a different conclusion in the instant case.", "As to the application of Article 17, the Court will deal with it after considering the question of compliance with Article 11 (see paragraph 53 below).", "B. Compliance with Article 11", "Whether there was an interference", "30. All those appearing before the Court acknowledged that the SP's dissolution amounted to an interference in the three applicants' right to freedom of association. That is also the Court's view.", "2. Whether the interference was justified", "31. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.", "(a) “Prescribed by law”", "32. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on Articles 2, 3 § 1, 6, 10 § 1 and 14 § 1 and former Article 68 of the Constitution and sections 78, 81 and 96(3) of Law no. 2820 on the regulation of political parties (see paragraphs 16–17 above).", "(b) Legitimate aim", "33. The Government maintained that the interference pursued a number of legitimate aims: ensuring national security, public safety and territorial integrity and protecting the rights and freedoms of others. If the Court had accepted, as it had done in the Hadjianastassiou v. Greece judgment of 16 December 1992 (Series A no. 252), that an isolated case of espionage could harm national security, there was all the more reason to reach a similar conclusion where, as in the instant case, the very existence of a State Party to the Convention was threatened.", "34. The applicants observed that before the Constitutional Court Principal State Counsel had at no stage relied on either national security or public safety.", "35. The Commission considered that prohibiting activities which, in the authorities' view, were likely to cause the collapse of the State or the division of its territory could be said to be intended to protect “national security” and territorial integrity.", "36. The Court considers that the dissolution of the SP pursued at least one of the legitimate aims set out in Article 11: the protection of “national security”.", "(c) “Necessary in a democratic society”", "i. Submissions of those appearing before the Court", "(α) The applicants", "37. The applicants said that in a pluralist democratic and parliamentary system, people should have the right to express their opinion on the Kurdish problem and on how to resolve it. The SP was a political party supported by a sector of public opinion which should have had the right to accede to power.", "The SP bore no resemblance to the German Communist Party that had been dissolved at the time by the German Federal Constitutional Court (see application no. 250/57, Yearbook 1, p. 225). Otherwise, the Turkish Constitutional Court would not have dismissed, on 8 December 1988, the first application for the SP to be dissolved (see paragraph 10 above). In that decision the Constitutional Court had found the party's constitution and programme to be in accordance with the Constitution and that it was part of the country's democratic system and clearly opposed terrorism.", "The SP had never acted unlawfully and the best proof of that was that its then Chairman, Mr Perinçek, was now Chairman of another political party, the Workers' Party, and carried on his work quite lawfully.", "The SP had always defended the union of the Turkish State. The federal system it proposed as a solution to the Kurdish problem would not prevent State unity. Germany and Switzerland were federations and no one saw in that status a programme to divide those countries. As for Turkey, federation would, on the contrary, afford a much more reliable solution for the future.", "(β) The Government", "38. In the Government's submission, any resemblance between the present case and that of the United Communist Party of Turkey (“the TBKP”) was in appearances only, the sole real similarity lying in the fact that both parties had been dissolved by an order of the Constitutional Court. In the case of the TBKP the Constitutional Court's task had been to assess whether the party's programme and constitution complied with the Constitution and the Law on the regulation of political parties. In the case of the SP on the other hand – as the Constitutional Court had clearly explained in its judgment – the court had had to assess whether the SP's activities subsequent to its formation were consistent with those documents.", "After the first review of the constitutionality of the party (see paragraphs 9–10 above), new facts and evidence had come to light concerning the SP's activities, which the Commission, unlike the Constitutional Court, had failed to take into account. They showed that from 1990, and in particular in 1991, the SP's activities had shifted radically away from its initial approach reflected in its constitutive documents and were directed towards the disruption of the fundamental concepts which have inspired the Republic of Turkey since its formation.", "The shift was to be seen in particular in the speeches made by the SP's Chairman, Mr Perinçek, at meetings, congresses or political rallies, some of which were later published by the party. He had used violent, aggressive and provocative language, denigrated all the other political parties and sought to vindicate the use of violence and terrorist methods by calling for an uprising through the use, inter alia, of the expression “ Ayağa kalk ”, which meant “stand up”. The Constitutional Court consequently found that the language and methods of the SP were not at all consistent with its calls for brotherhood and equality.", "39. Referring to the Court's analysis of the situation in Turkey in its judgment in the case of Zana v. Turkey of 25 November 1997 ( Reports 1997-VII), the Government said that in 1990 and 1991 there had been an intolerable increase in terrorist activity that had caused thousands of deaths and had spared neither women nor children. Against that background, the declarations of a well-known political leader were bound to aggravate the violence and hatred. In such cases, the authority to the effect that freedom of expression also applied to statements that offended, shocked or disturbed bore no relevance. In the present case, the Court was not concerned with a political debate on political and economic issues of interest to the whole country, but with incitement to join a bloody and murderous conflict between two sections of the population which enjoyed, without any discrimination, all the rights and liberties defined by the Constitution and statute.", "In that connection, the Government referred, as they had done in the TBKP case (see the judgment cited above, pp. 23–24, § 49), to the Commission's case-law whereby if the interference pursued as a legitimate aim the protection of public order, territorial integrity, the public interest or democracy, the Convention institutions did not require that the risk of violence justifying the interference should be real, current or imminent.", "Nor was it at all relevant to rely on Mr Perinçek's acquittals before the National Security Courts in order to contest the necessity of the interference in issue, as two types of proceedings, pursuing entirely different aims, were involved: the first type was criminal proceedings, in which the court ruled on an individual's personal responsibility, whereas in the second type of proceedings – constitutional proceedings, such as those impugned before the Court – the sole issue was whether a political party was compatible with the Convention and that necessitated applying different criteria.", "(γ) The Commission", "40. The Commission considered that the SP's dissolution had not been necessary in a democratic society. It noted that Mr Perinçek had previously been prosecuted in the criminal courts for making statements to the same effect as those made in the present case, but had been acquitted of the charges against him. The Commission inferred that even in the eyes of the Turkish judicial authorities, the publications did not contain anything intended to encourage extremist or terrorist groups to destroy the constitutional order of the State or to found a Kurdish State through the use of force.", "The Commission also observed that the SP had sought to achieve its political aims solely through lawful means and that it had not been shown that the SP had had any intention of destroying Turkey's democratic and pluralist order or had advocated infringing fundamental human rights by promoting racial discrimination.", "ii. The Court's assessment", "41. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.", "As the Court has emphasised many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention. (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, pp. 20–21, §§ 42–43).", "42. In the instant case it must first be noted that in its judgment of 10 July 1992 the Constitutional Court held that on that occasion it no longer had to consider whether the SP's programme and constitution were lawful, but only whether its political activities contravened the statutory prohibitions. In dissolving the party, the Constitutional Court had had regard to public statements – some of them in written form – made by Mr Perinçek which it considered to constitute new facts and evidence that were binding on the SP (see paragraph 15 above). Consequently, the Court may confine itself to examining those statements.", "43. The Constitutional Court noted that, by distinguishing two nations –the Kurdish nation and the Turkish nation – Mr Perinçek had advocated the creation of minorities within Turkey and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey. Although different methods were used, the aim of the SP's political activity was similar to that of terrorist organisations. As the SP promoted separatism and revolt its dissolution was justified (see paragraph 15 above).", "44. In the light of these factors, the Court must firstly consider the content of the statements in issue and then determine whether they justified the dissolution of the SP.", "With regard to the first issue the Court reiterates that when it carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 22, § 47).", "45. Further, the Court has previously held that one of the principal characteristics of democracy is the possibility it offers of resolving a country's problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State's population and to take part in the nation's political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 57).", "46. Having analysed Mr Perinçek's statements, the Court finds nothing in them that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. On the contrary, he stressed on a number of occasions the need to achieve the proposed political reform in accordance with democratic rules, through the ballot box and by holding referenda. At the same time, he spoke out against “the former culture idolising violence and advocating the use of force to solve problems between nations and in society” (see paragraph 13 above).", "At the hearing the Agent for the Government stated that Mr Perinçek had “justified the use of violent and terrorist methods” by saying in particular: “The Kurd has proved himself through the fight of impoverished peasants by linking its destiny [to theirs]. By holding meetings with thousands of people in the towns and provinces, the Kurd had proved himself and broken down the barriers of fear.” Furthermore, by calling on those present to “sow courage, rather than watermelons”, Mr Perinçek had, in the Government's submission, “exhorted them to stop all activities other than the destruction of order”. Lastly, by using the phrase “The Kurdish people are standing up” he had called upon them to revolt.", "While the Court accepts that these phrases were directed at citizens of Kurdish origin and constituted an invitation to them to rally together and assert certain political claims, it finds no trace of any incitement to use violence or infringe the rules of democracy. In that regard, the relevant statements were scarcely any different from those made by other political groups that were active in other countries of the Council of Europe.", "47. The Constitutional Court had also criticised Mr Perinçek for having drawn a distinction between two nations, the Kurdish nation and the Turkish nation, in his speeches and of thereby pleading in favour of creating minorities and the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. Ultimately, the SP had advocated separatism.", "The Court notes that, read together, the statements put forward a political programme with the essential aim being the establishment, in accordance with democratic rules, of a federal system in which Turks and Kurds would be represented on an equal footing and on a voluntary basis. Admittedly, reference is made to the right to self-determination of the “Kurdish nation” and its right to “secede”; however, read in their context, the statements using these words do not encourage secession from Turkey but seek rather to stress that the proposed federal system could not come about without the Kurds' freely given consent, which should be expressed through a referendum.", "In the Court's view, the fact that such a political programme is considered incompatible with the current principles and structures of the Turkish State does not make it incompatible with the rules of democracy. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself.", "48. It is true here too that, as was the case with the TBKP (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 58), it cannot be ruled out that the statements in issue concealed objectives and intentions different from the ones proclaimed in public. In the absence of concrete actions belying Mr Perinçek's sincerity in what he said, however, that sincerity should not be doubted. The SP was thus penalised for conduct relating solely to the exercise of freedom of expression.", "49. The Court also notes that Mr Perinçek was acquitted in the National Security Courts where he had been prosecuted in respect of the same statements (see paragraph 11 above). In that connection the Government stressed that the two types of proceedings were entirely different, one concerning the application of criminal law, the other the application of constitutional law. The Court merely notes that the Turkish courts had divergent views as to the effect of Mr Perinçek's statements.", "It is now important to determine whether, in the light of the above considerations, the SP's dissolution can be considered to have been necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued” (see, among many other authorities and mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25–26, § 52).", "50. The Court reiterates that, having regard to the essential role of political parties in the proper functioning of democracy (see the United Communist Party of Turkey and Others judgment cited above, p. 17, § 25), the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties' freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see the United Communist Party of Turkey and Others judgment cited above, p. 22, § 46).", "51. The Court observes that the interference in question was radical: the SP was dissolved with immediate and permanent effect, its assets were liquidated and transferred ipso jure to the Treasury and its leaders – who admittedly did not include Mr Perinçek when the party was dissolved (see paragraph 14 above) – were banned from carrying on certain similar political activities. Measures as severe as those may only be applied in the most serious cases.", "52. The Court has already noted that Mr Perinçek's statements, though critical and full of demands, did not appear to it to call into question the need for compliance with democratic principles and rules.", "The Court is prepared to take into account the background of cases before it, in particular the difficulties associated with the prevention of terrorism (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). In the present case, however, it has not been established how, in spite of the fact that in making them their author declared attachment to democracy and expressed rejection of violence, the statements in issue could be considered to have been in any way responsible for the problems which terrorism poses in Turkey.", "53. In view of the findings referred to above, there is no need either to bring Article 17 into play, as nothing in the statements warrants the conclusion that their author relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 60).", "54. In conclusion, the dissolution of the SP was disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention.", "II. ALLEGED VIOLATIONs OF ARTICLES 9, 10, 14 AND 18 OF THE CONVENTION", "55. The applicants also maintained that there had been breaches of Articles 9, 10, 14 and 18 of the Convention. As their complaints relate to the same facts the Court considers it unnecessary to examine them separately.", "III. ALLEGED VIOLATIONs OF ARTICLES 1 AND 3 OF PROTOCOL No. 1", "56. The applicants further submitted that the effects of the SP's dissolution – its assets were confiscated and transferred to the Treasury, and its leaders were banned from taking part in elections – entailed a breach of Articles 1 and 3 of Protocol No. 1, which provide:", "Article 1", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”", "Article 3", "“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”", "57. The Court notes that the measures complained of by the applicants were incidental effects of the SP's dissolution, which the Court has held to amount to a breach of Article 11. It is consequently unnecessary to consider those complaints separately.", "IV. ALLEGED VIOLATION OF Article 6 § 1 OF the Convention", "58. Lastly, the applicants complained that instead of holding a public hearing, the Constitutional Court had heard them merely in camera and that they had not had access to the case file or the verbatim record of the hearing. They considered that that amounted to a breach of Article 6 § 1 of the Convention.", "59. Neither the Government nor the Commission considered that Article 6 § 1 was applicable on the facts of the case.", "60. In view of its conclusion concerning compliance with Article 11, the Court considers that it is unnecessary to examine this complaint.", "V. APPLICATION OF ARTICLE 50 OF THE CONVENTION", "61. Article 50 of the Convention provides:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Annulment of the order for dissolution", "62. The applicants firstly requested the annulment of the Constitutional Court's order of 10 July 1992 dissolving the SP. They also sought “recognised political-party status” for the SP.", "63. The Court holds that it has no jurisdiction under the Convention to order these measures (see, mutatis mutandis, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 57, § 47).", "B. Damage and costs and expenses", "64. In respect of pecuniary damage the applicants claimed 1,500,000 US dollars (USD): USD 1,000,000 for the SP and USD 250,000 each for Mr Doğu Perinçek and Mr İlhan Kırıt. They sought USD 6,000,000 for non-pecuniary damage, that is USD 2,000,000 for each applicant.", "In support of their claims they stressed that the SP had had more than 400 offices spread over the whole of Turkey, all its assets had been seized, it had had the right to present candidates at the elections, had taken part in the elections and was the only left-wing socialist party in existence when it was dissolved. According to the applicants, the thousands of people who had helped to form the SP – which had been active for four years before its dissolution – and the leaders of that party had sustained substantial non-pecuniary damage and financial loss.", "The applicants also sought “reimbursement of all the costs to which the case had given rise”. At the hearing before the Court, they explained that the fees and costs of the 308 lawyers who had represented the SP before the Constitutional Court alone had come to 1,955,800 French francs (FRF). As to the costs of the applicants' representation before the Convention institutions, they had come to FRF 300,000.", "65. As its main submission, the Government considered that no compensation was payable in this case. In the alternative, they considered the applicants' claims exorbitant. In the further alternative, they argued that a violation of Article 11 only could not confer on the applicants a right to be compensated individually.", "As to the alleged pecuniary damage, the Government affirmed that it had no causal link with the SP's dissolution, that political parties and their leaders could not be equated with commercial undertakings and that in any event there was no supporting accounting evidence for the claims.", "As for the claims in respect of non-pecuniary damage, the Government considered them to be “even more unreliable” since not only were they exorbitant but they included a claim for non-pecuniary damage allegedly sustained by the SP itself.", "Lastly, as regards the claims for costs and expenses, the Government found them to be insufficiently detailed.", "66. The Delegate of the Commission submitted that the applicants' presentation – which was very general and hypothetical – was insufficient to allow their claims under Article 50 to be upheld.", "67. The Court notes that the applicants have not furnished any evidence in support of their claims for substantial sums in respect of pecuniary damage and costs and expenses. Consequently, it cannot uphold those claims (see, mutatis mutandis, the Pressos Compania Naviera S.A. and Others v. Belgium judgment of 3 July 1997 ( Article 50 ), Reports 1997-IV, p. 1299, § 24). It notes, however, that the applicants received FRF 57,187 in legal aid paid by the Council of Europe.", "As to non-pecuniary damage, the Court notes that, unlike the TBKP, the SP's constitution and programme were approved by the Constitutional Court and the party was active for four years before being dissolved by it. Mr Perinçek and Mr Kırıt therefore sustained definite non-pecuniary damage. Making its assessment on an equitable basis, the Court assesses that damage at FRF 50,000 each.", "C. Default interest", "68. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.36% per annum." ]

[ "I. the circumstances of the case", "A. Formation of ÖZDEP", "8. The Freedom and Democracy Party (ÖZDEP) was founded on 19 October 1992. Its constitution was lodged with the Ministry of the Interior the same day. Its programme included the following passages.", "“... Following the war of ‘Liberation’ waged jointly by Kurds, Turks and other national minorities, the Sultanate was abolished in Turkey and the Republic proclaimed.", "The sole aim of the Republic has been to establish national sovereignty. Efforts to unite Turkey with Europe have come to nothing. Turkey has not succeeded in lifting itself out of mediocrity.", "From the earliest days of the Republic, certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats.", "In order to preserve that monopoly, the policy of those in power has been to refuse to recognise the existence of the Kurdish people and to ignore its most legitimate rights.", "The dominant ‘Turkish’ philosophy has been maintained up to the present day, overriding the most natural rights and claims of the Kurdish people, by means of militaristic and chauvinistic propaganda and a policy of exile and destruction. State policy, based on a capitalist system designed to oppress minorities – particularly Kurdish minorities, but even Turkish ones – has been pursued in the name of modernisation and westernisation.", "Owing to this policy, which colours the political, economic and social aspects of Turkey’s territorial integrity, there is no possibility of this monopoly of State power being brought to an end. That power runs counter to the interests of the vast majority of the population.", "It uses force to impose the present situation on the people in order to preserve its economic interests. Thus, it blocks the way to any democratic process aimed at protecting the interests of Turkish and Kurdish workers.", "The Freedom and Democracy Party proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self-determination.", "The Freedom and Democracy Party uses political, democratic and ideological means to combat all fascist, fundamentalist, chauvinistic and racist movements or organisations hindering solidarity, unity and brotherhood between peoples.", "Both in domestic and foreign policy, the aim of the Freedom and Democracy Party is to protect the interests of our peoples and those of all workers. ÖZDEP is the guarantor of the cultural, occupational, economic and political values of the various national or religious minorities and of every socio-professional category. It seeks recognition of the right to form a political party.", "Our Party will guarantee the religious and national minorities the right to worship as they please, to practise their religion freely, to freedom of thought and to respect for their customs, cultures and languages. Every individual will be entitled to use the media, especially radio and television.", "ÖZDEP has proposals on how to determine and define the prerequisites for establishing a social order encompassing the Turkish and Kurdish peoples.", "ÖZDEP regards our peoples as the sole owners of the country’s wealth, natural wealth and mineral resources.", "ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle.", "Our Party proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage. This assembly will represent the interests of the Turkish people, the Kurdish people and any other minority.", "This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples’ national sovereignty.", "The media will be the moving force for the consolidation of fraternity and friendship between peoples. They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population. They will be responsible for ensuring that the political, economic, social and cultural rights of the peoples are recognised.", "There will be no government interference in religious affairs, which will be placed in the hands of the relevant institutions.", "In order to preserve the right to self-determination of oppressed peoples, our Party will outlaw any form of cultural, military, political or economic aggression.", "The Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country.", "The Freedom and Democracy Party considers that there can be democracy only if the Kurdish problem is solved. This problem concerns every Turk and Kurd who supports freedom and democracy.", "The Freedom and Democracy Party favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights.", "The Freedom and Democracy Party will fully respect the Kurdish people’s right to self-determination so that a democratic solution based on the self-determination and equality of peoples can be found.", "Currently, our legislation and the manner in which the legal system operates are inherently undemocratic, contrary to fundamental human rights and freedoms and based on class interests. They deny the Kurdish people an identity and forbid any form of workers’ organisation or association. They are racist and retrograde.", "An order will be established permitting the Turkish and Kurdish peoples and the minorities to develop and enjoy their particular cultures freely. Each people will be entitled to education in its mother tongue, that being an essential prerequisite for the development of a people and a nation.", "Everyone will have the right to basic education in his mother tongue. The education system from primary school to university will be based on education in one’s mother tongue. A person’s mother tongue shall be given precedence in court proceedings ...”", "B. The application to have ÖZDEP dissolved", "9. On 29 January 1993, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Turkish Constitutional Court to have ÖZDEP dissolved on the grounds that it had infringed the principles of the Constitution and the Law on the regulation of political parties. He considered that the content and aims set out in the party’s programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation.", "10. On 25 February 1993 the President of the Constitutional Court sent Principal State Counsel’s application to the Chairman of ÖZDEP inviting him to lodge his preliminary observations in defence.", "11. On 29 March 1993 ÖZDEP’s lawyers filed preliminary written observations and requested a hearing. They argued, inter alia, that the Law on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by the Constitution. They also maintained that dissolving the party would infringe the provisions of international instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Helsinki Final Act and the Charter of Paris for a New Europe. They submitted that it was unacceptable to force a political party, on pain of being dissolved, to promote an ideology which conformed to the Turkish Constitution.", "C. Dissolution of ÖZDEP", "12. On 30 April 1993, while the Constitutional Court proceedings were still pending, a meeting of the founding members of ÖZDEP resolved to dissolve the party.", "13. On 11 May 1993 Principal State Counsel lodged his submissions on the merits of the case with the Constitutional Court. Since ÖZDEP had gone into voluntary dissolution, it did not file any submissions on the merits.", "14. On 14 July 1993 the Constitutional Court made an order dissolving ÖZDEP, notably on the ground that its programme was apt to undermine the territorial integrity of the State and the unity of the nation and violated both the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. The judgment was served on Principal State Counsel, the Speaker of the National Assembly and the Prime Minister’s Office. The Constitutional Court’s judgment was published in the Official Gazette on 14 February 1994.", "The Constitutional Court held, firstly, that, pursuant to section 108 of the Law on the regulation of political parties, ÖZDEP’s resolution to go into voluntary dissolution did not prevent that court from ruling on the merits of the case as it had been made after the commencement of the proceedings before it.", "As to the merits, the Constitutional Court began by reiterating the constitutional principles that all persons living on Turkish territory, whatever their ethnic origin, formed a whole united by their common culture. The sum of the persons who made up the Republic of Turkey was called the “Turkish nation”. The different ethnic groups making up the “Turkish nation” were not divided into a majority and minorities. The court reiterated that, under the Constitution, no political or legal distinction based on ethnic or racial origin could be made between citizens: all Turkish nationals, without distinction, could avail themselves of all civil, political and economic rights.", "With particular reference to Turkish citizens of Kurdish origin, the Constitutional Court held that in every region of Turkey such persons enjoyed the same rights as other Turkish citizens. That did not mean that the Constitution denied the existence of a Kurdish identity, since citizens of Kurdish origin were not forbidden to express their Kurdish identity. The Kurdish language could be used on all private premises, in workplaces, in the press and in works of art and literature.", "The Constitutional Court reiterated the principle that everyone was bound to observe the provisions of the Constitution even if they did not agree with them. The Constitution did not preclude the celebration of difference but forbade propaganda based on racial difference and aimed at destroying the constitutional order. It pointed out that by virtue of the Treaty of Lausanne having a separate language or ethnic origin was not by itself enough for a group to qualify as a minority.", "With regard to the content of ÖZDEP’s programme, the Constitutional Court observed that it was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were portrayed in the programme as an oppressed people whose democratic rights were being completely ignored. According to the Constitutional Court, ÖZDEP called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection.", "In relation to the principle of secularism, the Constitutional Court noted that ÖZDEP’s programme contained a proposal for the abolition of the Religious Affairs Department of the government on the ground that religious affairs should be under the control of the religious institutions themselves. After reiterating what was meant by the principle of secularism, the court said that advocating the abolition of the government Religious Affairs Department amounted to undermining the principle of secularism. It concluded that that aspect of ÖZDEP’s programme was contrary to section 89 of the Law on the regulation of political parties.", "The Constitutional Court pointed to the fact that the Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism and that the Helsinki Final Act guaranteed the inviolability of national frontiers and territorial integrity. It concluded that ÖZDEP’s activities were subject, inter alia, to the restrictions referred to in paragraph 2 of Article 11 and to Article 17 of the Convention." ]

[ "II. relevant domestic law", "A. The Constitution", "15. The relevant provisions of the Constitution read as follows:", "Article 2", "“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”", "Article 3 § 1", "“The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.”", "Article 6", "“Sovereignty resides unconditionally and unreservedly in the nation.", "...", "Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class ...”", "Article 10 § 1", "“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”", "Article 14 § 1", "“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.”", "Article 66 § 1", "“Everyone linked to the Turkish State by nationality shall be Turkish.”", "(Former) Article 68", "“Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ...", "Political parties shall be an indispensable part of the democratic political system.", "Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law.", "The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic.", "No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship ...”", "(Former) Article 69", "“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution.", "...", "The decisions and internal running of political parties shall not be contrary to democratic principles.", "...", "Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.", "Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel.", "Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...”", "B. Law no. 2820 on the regulation of political parties", "16. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:", "Section 78", "“Political parties", "(a) shall not aim or strive to or incite third parties to", "change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class ...;", "jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.", "...", "(c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims ...”", "Section 80", "“Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.”", "Section 81", "“Political parties shall not", "(a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or", "(b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities ...”", "Section 89", "“Political parties shall not have an aim that runs counter to Article 136 of the Constitution, which provides that the Religious Affairs Department, which is bound to carry out the duties assigned to it in conformity with the principle of secularism ..., shall be accountable to central Government.”", "Section 90(1)", "“The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.”", "Section 95", "“Where a political party has been definitively dissolved, its founding members, its chairman, the members of its executive committee and central office, the members of its disciplinary and administrative organs at all levels and the members of political groups in the Grand National Assembly of Turkey shall, if still members when the party was dissolved, be disqualified from acting as founders, managers or financial controllers of any other political party. Any members whose actions were responsible for the political party’s being dissolved shall be disqualified for ten years from joining a political party or standing for election to Parliament.", "No political party shall be formed with a majority of members from a political party that has been dissolved.”", "Section 96(3)", "“No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.”", "Section 101", "“The Constitutional Court shall dissolve a political party where", "(a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or", "(b) its membership, central office or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions ...”", "Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above.", "Section 107(1)", "“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”", "Section 108", "“A resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects.”", "PROCEEDINGS BEFORE THE COMMISSION", "17. ÖZDEP applied to the Commission on 21 March 1994. It alleged a violation of Articles 9, 10, 11 and 14 of the Convention.", "18. The Commission declared the application (no. 23885/94) admissible on 2 September 1996. In its report of 12 March 1998 (former Article 31 of the Convention), it expressed the opinion, by twenty-nine votes to one, that there had been a violation of Article 11, that no separate issue arose under Articles 9 or 10 and that it was unnecessary to examine separately whether there had been a violation of Article 14. The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "19. In their memorial the Government requested the Court to hold that:", "“(1) the ÖZDEP party cannot assert that it is a victim since a meeting of ÖZDEP’s founding members had passed a resolution on 30 April 1993 for the dissolution of the party before the Constitutional Court delivered its decision on 14 July 1993;", "(2) ÖZDEP’s winding up was necessary in a democratic society and proportionate to the legitimate aim which that democratic society sought to pursue since it had violated the territorial integrity of the State by all possible means, whether legal or illegal; consequently, there had been no violation of Article 11 of the Convention;", "(3) there had been no violation of Articles 9, 10 or 14 of the Convention on Human Rights in the instant case as the interference had been lawful under Article 11 § 2 of the Convention;", "(4) Article [41] of the Convention did not apply as there had been no violation of the Articles relied on by the applicant party.”", "20. The applicant party invited the Court to hold that there had been a violation of Articles 9, 10, 11 and 14 of the Convention and to award it just satisfaction under Article 41.", "TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "21. The representative of the Freedom and Democracy Party (ÖZDEP) maintained that the fact that it had been dissolved and its leaders banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention, which provides:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "A. The Government’s preliminary objection", "22. The Government maintained before the Court that ÖZDEP could not be regarded as a victim of the dissolution complained of as it had been dissolved voluntarily on 30 April 1993, well before 14 July 1993 when the Constitutional Court had ordered its dissolution. The Constitutional Court had made that order, notwithstanding the voluntary dissolution, to prevent the party leadership from forming a new party with the same name and status. Had ÖZDEP’s leaders lodged their application before the Court in their own name, too, then they could have claimed to have been victims of the dissolution; but they had not done so.", "23. At the hearing before the Court, the Delegate of the Commission said that in his view the Government were estopped from raising their objection because they had not done so at the admissibility stage of the proceedings before the Commission and the Commission had not found any ground for declaring the application inadmissible of its own motion. Exceptionally, however, the Commission had considered it appropriate to consider of its own motion the issue of ÖZDEP’s standing in its report made under former Article 31 of the Convention. Nonetheless, that did not prevent the estoppel arising against the Government owing to their failure to raise the objection before the Commission.", "24. The applicant party contended that the Government were estopped from raising the objection for the first time before the Court. It invited the Court to accept that it was a victim since the sole purpose of dissolving the party voluntarily had been to allow its leaders to escape the effects of a dissolution by the Constitutional Court.", "25. The Court notes that the Government did not raise before the Commission the preliminary objection they have now made under Article 34 of the Convention that ÖZDEP did not have standing as a victim. Consequently, an estoppel should arise against them (see, among other authorities, the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2546, § 44). In its report, however, the Commission examined that issue of its own motion. If an estoppel was nonetheless held to arise against the Government, they would be deprived of an opportunity to make representations on a point that was considered by the Commission of its own motion and was the subject of argument before the Court. That appears inconsistent with the principles of adversarial procedure and equality of arms. Consequently, the Government must be permitted to raise the objection concerned even though it was made out of time.", "26. As to the merits of the objection, the Court accepts that ÖZDEP’s leaders resolved to dissolve their party in the hope of avoiding certain effects of a dissolution by the Constitutional Court, in their case a ban on their holding any similar office in any other political body (see section 95 of the Law on the regulation of political parties – paragraph 16 above). That explanation is supported by section 108 of the Law on the regulation of political parties which, by providing that voluntarily dissolved political parties continue to exist for the purposes of dissolution by the Constitutional Court, is intended to ensure that they are subject to all the effects of the latter form of dissolution (see paragraph 16 above). Thus the decision of ÖZDEP’s leaders to dissolve the party was not made freely, as the decisions of leaders and members of associations should be if they are to be recognised under Article 11.", "In addition, as the Court has already noted, section 108 of the Law on the regulation of political parties provides “[a] resolution by the competent body of a political party dissolving that party after an application for its dissolution has been lodged shall not prevent the proceedings before the Constitutional Court continuing or deprive any dissolution order that is made of its legal effects”. It therefore follows that as domestic law provides that a voluntarily dissolved political party remains in existence for the purposes of dissolution by the Constitutional Court, the Government cannot contend before the Court that ÖZDEP was no longer in existence when the dissolution order was made (see, mutatis mutandis, the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 54, § 32, and the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 22, § 42).", "Consequently, the Government’s preliminary objection must be dismissed.", "B. Merits of the complaint", "1. Whether there has been an interference", "27. All of those appearing before the Court accepted that ÖZDEP’s dissolution amounted to an interference with the freedom of association of its members. The Court takes the same view.", "2. Whether the interference was justified", "28. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2 and was “necessary in a democratic society” for the achievement of those aims.", "(a) “Prescribed by law”", "29. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on the Constitution and sections 78, 81 and 89 of Law no. 2820 on the regulation of political parties (see paragraphs 15-16 above).", "(b) Legitimate aim", "30. The Government maintained that the interference pursued a number of legitimate aims: preventing disorder, protecting the rights of others and ensuring national security, including the territorial integrity of the country.", "31. The applicant party denied that it had ever been a threat to Turkish society.", "32. The Commission considered that the impugned measures could be regarded as having pursued at least one of the legitimate aims set out in paragraph 2 of Article 11: the protection of territorial integrity and thus the preservation of “national security”.", "33. The Court shares the Commission’s view on this point.", "(c) “Necessary in a democratic society”", "(i) The submissions of those appearing before the Court", "(α) The applicant party", "34. The applicant party submitted that it had been clearly stated in its programme that it favoured a democratic and peaceful solution to the Kurdish problem and one complying with international law. It was wrong to suggest that the party sought the partition of Turkey. On the contrary, ÖZDEP’s programme had stressed the need for the country to remain unified, as it said that the party wished to work for the unity of the Turkish and Kurdish peoples, who together would form the country on the basis of equality and voluntarism. Nothing in ÖZDEP’s programme or activities expressed a separatist aim, as indeed was confirmed by the fact that so far no prosecution had been brought against the parties’ leaders under Article 125 of the Criminal Code, which made it an offence to engage in separatist activities.", "The Kurdish problem was currently the most serious problem facing Turkey. Given the scale of that problem, political parties were not only able to seek out and propose solutions, they had a duty to do so. However, in the eyes of the authorities, the mere fact that a party had used the word “Kurd” was enough to justify its dissolution. That was what had happened to ÖZDEP: both Principal State Counsel and the Constitutional Court had based their accusations on the use of the words “Kurd”, “Kurdish people”, “minority” and “peoples” in the party’s programme. Yet the programme did not describe the Kurds as a minority or contain a call for them to receive special treatment or to be separated from the Turkish population. Furthermore, there was not a single sentence in the programme that did not reflect the party’s true intentions. Thus, banning a political party solely because it had announced in its programme that it intended to press for a just, democratic and peaceful solution to the Kurdish problem amounted to a breach of Article 11 of the Convention.", "(β) The Government", "35. The Government submitted that the objectives contained in ÖZDEP’s programme were apt to incite part of the Turkish population to revolt or to engage in illegal activities such as devising a new political order and laws that would have been incompatible with the constitutional principles of the Turkish State.", "ÖZDEP was thus using democratic freedoms in an attempt to divide Turkey by choosing as its fundamental theme an alleged oppression by the Turkish State of minorities and, more particularly, of the Kurds. After referring to the right of peoples to self-determination, ÖZDEP had openly supported the armed struggle in its programme, notably by declaring: “ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle.” Such ideas amounted to approval of the illegal activities of terrorist organisations whose aim was to destroy the unity of the State and to incite part of the Turkish population to revolt.", "Furthermore, in its programme, ÖZDEP advocated self-determination for the population of Kurdish origin; self-determination was not only unconstitutional but also ineligible for protection under the Convention as it undermined the integrity of the Turkish nation and the indivisibility of the territory of the State.", "Moreover, the instant case differed from the cases concerning the United Communist Party of Turkey (judgment of 30 January 1998, Reports 1998-I, p. 1) and the Socialist Party (judgment of 25 May 1998, Reports 1998-III, p. 1233) as ÖZDEP’s aim, unlike that of those parties, had not been to abide by the rules of democratic debate but instead to divide the country by, on the one hand, drawing on the support of part of the population and, on the other, applauding the battle being fought by terrorist organisations.", "Propaganda in favour of self-determination for part of the population, in this case people of Kurdish origin, was not only contrary to the Turkish Constitution, but also liable to cause unrest among the Turkish population. In a country such as Turkey, which since its creation has been based on a unitary structure and where, by virtue of Article 10 of the Constitution, “[a]ll individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds”, such propaganda would inevitably provoke grave discord between the various sectors of the Turkish population.", "In sum, regard being had to the background to the present case and in particular to the difficulties to which the fight against terrorism gave rise, it was possible to conclude on the basis of the evidence relied on by the Constitutional Court that ÖZDEP bore some responsibility for the problems caused by terrorism in Turkey. The party’s dissolution did not appear to have been a disproportionate measure and, accordingly, could not have amounted to a violation of Article 11 of the Convention.", "(γ) The Commission", "36. The Commission expressed the opinion that there had been a violation of Article 11. It observed, firstly, that ÖZDEP’s constitution demonstrated that the party was democratic in structure. It had sought to attain its political objectives by purely lawful means. Indeed, Principal State Counsel had not argued the contrary in the Constitutional Court. Further, it had not been shown that ÖZDEP had intended to destroy the democratic and pluralist system in Turkey or had encouraged a breach of fundamental human rights in the form of racial discrimination.", "Moreover, the section of ÖZDEP’s programme dealing with the situation of Turkish citizens of Kurdish origin did not contain any proposal for the use of violence or other anti-democratic or unconstitutional means. On the contrary, the programme suggested exclusively democratic and political solutions to the problems posed. Nor did it contain any encouragement to extremist or terrorist groups to destroy the constitutional order of the State or to found a Kurdish State by the use of force.", "(ii) The Court’s assessment", "37. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.", "As the Court has said many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, pp. 20-21, §§ 42-43).", "38. In the instant case, it must firstly be noted that in its judgment of 14 July 1993, the reasons given by the Constitutional Court for ordering ÖZDEP’s dissolution were that the party’s programme tended to undermine the territorial integrity of the State and the unity of the nation, while violating the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. In the Constitutional Court’s view, the programme was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were presented in the programme as an oppressed people whose democratic rights were being completely ignored. ÖZDEP had called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection. That justified making an order for its dissolution (see paragraph 14 above).", "In addition, the Constitutional Court found that, by advocating the abolition of the government Religious Affairs Department in its programme (on the ground that religious affairs should be under the control of the religious institutions themselves), ÖZDEP had undermined the principle of secularism. The Constitutional Court therefore held that there had been a breach of section 89 of the Law on the regulation of political parties.", "39. In the light of these factors, the Court must consider the content of the passages in issue and determine whether it justified ÖZDEP’s dissolution.", "With regard to the first issue the Court reiterates that when it carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. In so doing, the Court has in particular to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Socialist Party and Others judgment cited above, p. 1256, § 44).", "40. Having analysed ÖZDEP’s programme, the Court finds nothing in it that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. That, in the Court’s view is an essential factor to be taken into consideration (see, mutatis mutandis, Okçuoğlu v. Turkey [GC], no. 24246/94, § 48, 8 July 1999, unreported). On the contrary, the need to abide by democratic rules when implementing the proposed political project was stressed in the programme. Among other things, it says that ÖZDEP “proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage” and “favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights” (see paragraph 8 above).", "According to the Government, however, ÖZDEP “openly supported the armed struggle by declaring in a statement leaving no room for doubt that ‘ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle’”.", "While the Court considers that that phrase did represent a statement of intent by ÖZDEP to make certain political demands, it finds nothing in it that would incite people to use violence or break the rules of democracy. In that respect, the passage concerned is virtually indistinguishable from passages to be found in the programmes of certain bodies that are politically active in other member States of the Council of Europe.", "41. The Constitutional Court also criticised ÖZDEP for having distinguished two nations in its programme – the Kurds and the Turks – and for having referred to the existence of minorities and to their right to self-determination, to the detriment of the unity of the Turkish nation and the territorial integrity of the Turkish State.", "The Court notes that, taken together, the passages in issue present a political project whose aim is in essence the establishment – in accordance with democratic rules – of “a social order encompassing the Turkish and Kurdish peoples”. It is stated elsewhere in the programme that “[t]he Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country”. It is true that in its programme ÖZDEP also refers to the right to self-determination of the “national or religious minorities”; however, taken in context, those words do not encourage people to seek separation from Turkey but are intended instead to emphasise that the proposed political project must be underpinned by the freely given, democratically expressed, consent of the Kurds.", "In the Court’s view, the fact that such a political project is considered incompatible with the current principles and structures of the Turkish State does not mean that it infringes democratic rules. It is of the essence of democracy to allow diverse political projects to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself (see the Socialist Party and Others judgment cited above, p. 1257, § 47). The same applies, too, to ÖZDEP’s proposals for the abolition of the Religious Affairs Department.", "42. Admittedly, it cannot be ruled out that the passages concerned may conceal a different political design from the publicly proclaimed one. However, given the absence of any concrete acts suggesting otherwise, there is no reason to cast doubts on the genuineness of ÖZDEP’s programme. ÖZDEP was therefore penalised solely for exercising its freedom of expression.", "43. The Court must now determine whether, in the light of the above considerations, ÖZDEP’s dissolution can be considered to have been necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued” (see the Socialist Party and Others judgment cited above, p. 1258, § 49).", "44. In view of the essential role played by political parties in the proper functioning of democracy (see the United Communist Party of Turkey and Others judgment cited above, p. 17, § 25), the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (ibid., p. 22, § 46).", "Further, the Court has previously held that one of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned (see the Socialist Party and Others judgment cited above, p. 1256, § 45).", "45. In the instant case, the Court notes that the interference in issue was radical: ÖZDEP was definitively dissolved with immediate effect, its assets were liquidated and transferred ipso jure to the Treasury and its leaders were banned from carrying on certain similar political activities. Such drastic measures may be taken only in the most serious cases.", "46. The Court has already noted that the relevant passages in ÖZDEP’s programme, though voicing criticism and demands, do not in its view call into question the need to comply with the principles and rules of democracy.", "The Court takes into account the background of cases before it, in particular the difficulties associated with the fight against terrorism (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). In that connection, the Government have affirmed that ÖZDEP bears a share of the responsibility for the problems caused by terrorism in Turkey (see paragraph 35 above). The Government nonetheless fail to explain how that could be so as ÖZDEP scarcely had time to take any significant action. It was formed on 19 October 1992, the first application for it to be dissolved was made on 29 January 1993 and it was dissolved, initially at a meeting of its founding members on 30 April 1993 and then by the Constitutional Court on 14 July 1993. Any danger there may have been could have come only from ÖZDEP’s programme, but there, too, the Government have not established in any convincing manner how, despite their declared attachment to democracy and peaceful solutions, the passages in issue in ÖZDEP’s programme could be regarded as having exacerbated terrorism in Turkey.", "47. In view of the findings referred to above, there is no call either for Article 17 to come into play, as nothing in the passages concerned warrants the conclusion that their author relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the Socialist Party and Others judgment cited above, p. 1259, § 53).", "48. In conclusion, ÖZDEP’s dissolution was disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention.", "II. alleged violation of Articles 9, 10 and 14 of theConvention", "49. The applicant party also alleged a violation of Articles 9, 10 and 14 of the Convention. As its complaints relate to the same matters as those considered under Article 11, the Court does not consider it necessary to examine them separately.", "III. application of article 41 of the Convention", "50. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "51. ÖZDEP claimed 500,000 French francs (FRF) for pecuniary damage. That sum represented the total costs of forming the party, renting premises, travel and accommodation for party members in connection with its formation, setting up its structures in forty provinces with a view in particular to taking part in the elections, and printing and distributing brochures.", "52. The Government maintained that ÖZDEP’s claims for just satisfaction were both exorbitant and entirely unsubstantiated. They contended that any finding by the Court of a violation would constitute sufficient just satisfaction. As to the alleged pecuniary damage, there was no causal link between it and the facts of the case.", "53. The Delegate of the Commission considered that there was no reason for the Court to reach a different conclusion from that reached in the cases of the United Communist Party and the Socialist Party cited above.", "54. The Court notes that the applicant party has not furnished any evidence in support of its claim. Consequently, it is unable to accept it (Rule 60 § 2 of the Rules of Court; see, mutatis mutandis, the Socialist Party and Others judgment cited above, p. 1261, § 67).", "B. Non-pecuniary damage", "55. ÖZDEP also claimed FRF 200,000 as compensation for the non ‑ pecuniary damage caused by its dissolution.", "56. The Government considered that sum exorbitant, too. In the event that there was found to have been a violation, that should suffice to redress any non-pecuniary damage.", "57. In the Court’s view, ÖZDEP’s dissolution must have been highly frustrating for its founders and members. The Court assesses at FRF 30,000 the sum to be paid to Mr Mevlüt İlik, ÖZDEP’s representative for the purposes of the proceedings before the Court (see paragraph 1 above), as compensation for the non-pecuniary damage sustained by the founders and members of the applicant party.", "C. Costs and expenses", "58. ÖZDEP sought FRF 200,000 for costs and expenses, being FRF 120,000 for the fees charged by its counsel for representing it before the Constitutional Court and in Strasbourg and FRF 80,000 for translation, communications and travel expenses connected therewith.", "59. The Government argued, firstly, that the costs of ÖZDEP’s representation before the Constitutional Court could not be relevant here as it was unconnected with the proceedings before the Strasbourg institutions. In addition, since there was no accurate, detailed statement of account, it was impossible to verify whether the documents produced by ÖZDEP’s lawyer in support of its claim for reimbursement of the costs and expenses related to the present proceedings. Lastly, the fees claimed were out of all proportion with those generally paid in similar cases in Turkey. The present case was a relatively straightforward one that had not required much time or work. In any event, just satisfaction should reflect the social and economic conditions of the country concerned and not constitute a source of unjust enrichment for the applicant.", "60. The Court reiterates that in order for costs to be recoverable under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In that connection, it should be noted that if the Court finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before the Convention institutions, but also those incurred in the national courts for the prevention or redress of the violation (see, among other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 45, ECHR 1999-I).", "In the present case, the costs relating to ÖZDEP’s representation before the Constitutional Court were incurred with a view to avoiding the party’s dissolution. It is that dissolution that led to the above finding of a violation (see paragraph 48 above). Consequently, the dissolution proceedings are relevant to the determination of just satisfaction.", "The Court notes, however, that ÖZDEP has not provided details of the number of hours’ work for which its lawyer claims payment. Pursuant to Rule 60 § 2 it cannot grant the amount claimed. Making its assessment on an equitable basis, it awards FRF 40,000 to be paid to Mr Mevlüt İlik, for costs and expenses.", "D. Default interest", "61. The Court deems it appropriate to adopt the statutory rate of interest applicable in France at the date of adoption of the present judgment, which is 3.47% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The applicants", "10. The first applicant, Refah Partisi (the Welfare Party – “Refah”), was a political party founded on 19 July 1983. It was represented by its chairman, Mr Necmettin Erbakan, who is also the second applicant. He was born in 1926 and lives in Ankara. An engineer by training, he is a politician. At the material time he was a member of Parliament and Refah’s chairman.", "The third applicant, Mr Şevket Kazan, who was born in 1933, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah. The fourth applicant, Mr Ahmet Tekdal, who was born in 1931, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah.", "11. Refah took part in a number of general and local elections. In the local elections in March 1989 Refah obtained about 10% of the votes and its candidates were elected mayor in a number of towns, including five large cities. In the general election of 1991 it obtained 16.88% of the votes. The sixty-two MPs elected as a result took part between 1991 and 1995 in the work of Parliament and its various committees, including the Committee on Constitutional Questions, which proposed amendments to Article 69 of the Constitution that became law on 23 July 1995. During the debate in Parliament on the new sixth paragraph of Article 69 of the Constitution (see paragraph 45 below) the chairman of the Committee on Constitutional Questions explained when he presented the draft it had prepared that the Constitutional Court would not restrict itself to noting the unconstitutional nature of the individual acts of the members of a party but would then be obliged to declare that the party concerned had become a centre of anti ‑ constitutional activities on account of those acts. One MP, representing the parliamentary group of the Motherland Party, emphasised the need to change the relevant provisions of Law no. 2820 on the regulation of political parties to take account of the new sixth paragraph of Article 69 of the Constitution.", "Ultimately, Refah obtained approximately 22% of the votes in the general election of 24 December 1995 and about 35% of the votes in the local elections of 3 November 1996.", "The results of the 1995 general election made Refah the largest political party in Turkey with a total of 158 seats in the Grand National Assembly (which had 450 members at the material time). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path Party (Doğru Yol Partisi), led by Mrs Tansu Ciller. According to an opinion poll carried out in January 1997, if a general election had been held at that time, Refah would have obtained 38% of the votes. The same poll predicted that Refah might obtain 67% of the votes in the general election to be held roughly four years later.", "B. Proceedings in the Constitutional Court", "1. Principal State Counsel’s submissions", "12. On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” ( mihrak ) of activities contrary to the principles of secularism. In support of his application, he referred to the following acts and remarks by certain leaders and members of Refah.", "– Whenever they spoke in public Refah’s chairman and other leaders advocated the wearing of Islamic headscarves in State schools and buildings occupied by public administrative authorities, whereas the Constitutional Court had already ruled that this infringed the principle of secularism enshrined in the Constitution.", "– At a meeting on constitutional reform Refah’s chairman, Mr Necmettin Erbakan, had made proposals tending towards the abolition of secularism in Turkey. He had suggested that the adherents of each religious movement should obey their own rules rather than the rules of Turkish law.", "– On 13 April 1994 Mr Necmettin Erbakan had asked Refah’s representatives in the Grand National Assembly to consider whether the change in the social order which the party sought would be “peaceful or violent” and would be achieved “harmoniously or by bloodshed”.", "– At a seminar held in January 1991 in Sivas, Mr Necmettin Erbakan had called on Muslims to join Refah, saying that only his party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should therefore make donations to Refah rather than distributing alms to third parties.", "– During Ramadan Mr Necmettin Erbakan had received the heads of the Islamist movements at the residence reserved for the Prime Minister, thus assuring them of his support.", "– Several members of Refah, including some in high office, had made speeches calling for the secular political system to be replaced by a theocratic system. These persons had also advocated the elimination of the opponents of this policy, if necessary by force. Refah, by refusing to open disciplinary proceedings against the members concerned and even, in certain cases, facilitating the dissemination of their speeches, had tacitly approved the views expressed.", "– On 8 May 1997 a Refah MP, Mr İbrahim Halil Çelik, had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “ İmam-Hatip ” theological colleges, that the situation might become worse than in Algeria, that he personally wanted blood to flow so that democracy could be installed in the country, that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of Islamic law (sharia).", "– The Minister of Justice, Mr Şevket Kazan (a Refah MP and vice-chairman of the party), had expressed his support for the mayor of Sincan by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international Islamist terrorist groups.", "Principal State Counsel further observed that Refah had not opened any disciplinary proceedings against those responsible for the above-mentioned acts and remarks.", "13. On 7 July 1997 Principal State Counsel submitted new evidence against Refah to the Constitutional Court.", "2. The applicants’ defence", "14. On 4 August 1997 Refah’s representatives filed their defence submissions, in which they relied on international human-rights protection instruments, including the Convention, pointing out that these instruments formed part of Turkish written law. They further referred to the case-law of the Commission, which had expressed the opinion that Article 11 of the Convention had been breached in the cases concerning the United Communist Party of Turkey and the Socialist Party, and to the case-law of the Court and the Commission on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution of Refah was not prompted by a pressing social need and was not necessary in a democratic society. Nor, according to Refah’s representatives, was their party’s dissolution justified by application of the “clear and present danger” test laid down by the Supreme Court of the United States of America.", "15. Refah’s representatives further rejected Principal State Counsel’s argument that the party was a “centre” of activities which undermined the secular nature of the Republic. They submitted that Refah was not caught by the criteria laid down in the Law on the regulation of political parties for determining whether a political party constituted a “centre of anti ‑ constitutional activities”. They observed, inter alia, that the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code.", "16. Refah’s representatives also set out their point of view on the concept of secularism. They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity.", "17. The applicants’ representatives alleged that in accusing Mr Necmettin Erbakan of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context. Moreover, these remarks were covered by Mr Necmettin Erbakan’s parliamentary immunity. They further noted that the dinner he had given to senior officials of the Religious Affairs Department and former members of the theology faculty had been presented by Principal State Counsel as a reception organised for the leaders of Islamist fundamentalist movements, which had in any event been legally proscribed since 1925.", "18. With regard to the remarks of the other Refah leaders and members criticised by Principal State Counsel’s Office, Refah’s representatives observed that these did not constitute any criminal offence.", "They asserted that none of the MPs whose speeches had been referred to by Principal State Counsel was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation of political parties so as to give Refah the opportunity, if the need arose, to decide whether or not the persons concerned should continue to be members of the party; the first time Refah’s leadership had been informed of the remarks criticised in the case had been when they read Principal State Counsel’s submissions. The three MPs under attack had been expelled from the party, which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the meaning of the Law on the regulation of political parties.", "3. The parties’ final submissions", "19. On 5 August 1997 Principal State Counsel filed his observations on the merits of the case with the Constitutional Court. He submitted that according to the Convention and the case-law of the Turkish courts on constitutional-law issues nothing obliged States to tolerate the existence of political parties that sought the destruction of democracy and the rule of law. He contended that Refah, by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the requirements of a democratic society. Refah’s aim to establish a plurality of legal systems (in which each group would be governed by a legal system in conformity with its members’ religious beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the Republic.", "20. In their observations on the merits of the case, Refah’s representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of Article 11 of the Convention. They went on to say that Article 17 was not applicable in the case, as Refah had nothing in common with political parties which sought to install a totalitarian regime. Furthermore, the plurality of legal systems which their party proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction.", "21. On 11 November 1997 Principal State Counsel submitted his observations orally. On 18 and 20 November 1997 Mr Necmettin Erbakan submitted his oral observations on behalf of Refah.", "4. The Constitutional Court’s judgments", "22. In a judgment of 9 January 1998, which it delivered following proceedings on preliminary issues it had instituted of its own motion as the court dealing with the merits, the Constitutional Court ruled that, regard being had to Article 69 § 6 of the Constitution, the second paragraph of section 103 of the Law on the regulation of political parties was unconstitutional and declared it null and void. Article 69 § 6, taken together with section 101(d) of the same Law, provided that for a political party to be considered a “centre” of activities contrary to the fundamental principles of the Republic its members had to have been convicted of criminal offences. According to the Constitutional Court, that legal restriction did not cover all cases where the principles of the Republic had been flouted. It pointed out, among other observations, that after the repeal of Article 163 of the Criminal Code activities contrary to the principle of secularism no longer attracted criminal penalties.", "23. On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism”. It based its decision on sections 101(b) and 103(1) of Law no. 2820 on the regulation of political parties. It also noted the transfer of Refah’s assets to the Treasury as an automatic consequence of dissolution, in accordance with section 107 of Law no. 2820.", "24. In its judgment the Constitutional Court first dismissed the preliminary objections raised by Refah. In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in Principal State Counsel’s submissions of 21 May 1997 had nothing to do with consideration of an application for the dissolution of a political party and forfeiture of political rights by its members, but was a question of the criminal responsibility of the MPs concerned, which was not a matter of constitutional law.", "25. With regard to the merits, the Constitutional Court held that while political parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The rules of sharia were incompatible with the democratic regime. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society.", "26. The Constitutional Court held that the following evidence proved that Refah had become a centre of activities contrary to the principle of secularism (see paragraphs 27-39 below):", "27. Refah’s chairman, Mr Necmettin Erbakan, had encouraged the wearing of Islamic headscarves in public and educational establishments. On 10 October 1993, at the party’s Fourth Ordinary General Meeting, he had said:", "“... when we were in government, for four years, the notorious Article 163 of the Persecution Code was never applied against any child in the country. In our time there was never any question of hostility to the wearing of headscarves ...”", "In his speech of 14 December 1995 before the general election he had said:", "“... [university] chancellors are going to retreat before the headscarf when Refah comes to power.”", "But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs. That finding was supported by various rulings of the Constitutional Court and the Supreme Administrative Court and by the case-law of the European Commission of Human Rights on applications nos. 16278/90 and 18783/91 concerning the wearing of headscarves at universities.", "28. The plurality of legal systems proposed by Mr Necmettin Erbakan was nothing to do with the freedom to enter into contracts as Refah claimed, but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime. On 23 March 1993 Mr Erbakan had made the following speech to the National Assembly:", "“... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished. There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history. In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose one’s own legal system is an integral part of the freedom of religion.”", "In addition, Mr Necmettin Erbakan had spoken as follows on 10 October 1993 at a Refah party conference:", "“... we shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers. We shall free the administration from centralism. The State which you have installed is a repressive State, not a State at the people’s service. You do not allow the freedom to choose one’s code of law. When we are in power a Muslim will be able to get married before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.”", "29. The plurality of legal systems advocated by Mr Necmettin Erbakan in his speeches had its origin in the practice introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and polytheist communities the right to live according to their own legal systems, not according to Islamic law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a model of peaceful social co-existence under which each religious group would be free to choose its own legal system. Since the foundation of the Nizam Party in 1970 (dissolved by a judgment of 2 May 1971) Mr Necmettin Erbakan had been seeking to replace the single legal system with a plurality of legal systems.", "30. The Constitutional Court further observed that in a plurality of legal systems, as proposed by Refah, society would have to be divided into several religious movements; each individual would have to choose the movement to which he wished to belong and would thus be subjected to the rights and obligations prescribed by the religion of his community. The Constitutional Court pointed out that such a system, whose origins lay in the history of Islam as a political regime, was inimical to the consciousness of allegiance to a nation having legislative and judicial unity. It would naturally impair judicial unity since each religious movement would set up its own courts and the ordinary courts would be obliged to apply the law according to the religion of those appearing before them, thus obliging the latter to reveal their beliefs. It would also undermine legislative and judicial unity, the preconditions for secularism and the consciousness of nationhood, given that each religious movement would be empowered to decree what legal rules should be applicable to its members.", "31. In addition, Mr Necmettin Erbakan had made a speech on 13 April 1994 to the Refah group in Parliament in which he had advocated setting up a theocratic regime, if necessary through force:", "“The second important point is this: Refah will come to power and a just [social] order [ adil dozen ] will be established. The question we must ask ourselves is whether this change will be violent or peaceful; whether it will entail bloodshed. I would have preferred not to have to use those terms, but in the face of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel obliged to do so. Today Turkey must take a decision. The Welfare Party will establish a just order, that is certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? The sixty million [citizens] must make up their minds on that point.”", "32. The reception given by Mr Necmettin Erbakan at the Prime Minister’s residence to the leaders of various religious movements, who had attended in vestments denoting their religious allegiance, unambiguously evidenced Refah’s chairman’s support for these religious groups vis-à-vis public opinion.", "33. In a public speech in April 1994 Mr Şevki Yılmaz, MP for the province of Rize, had issued a clear call to wage a jihad and had argued for the introduction of Islamic law, making the following declaration:", "“We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s Messenger of his jurisdiction in their country.”", "In another public speech, also in April 1994, Mr Şevki Yılmaz had said:", "“In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach, you preach. ... None of that is part of the chapter on jihad but of that on the amel-i salih [peacetime activities]. Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he made it a requirement for warriors [ cahudi ]. What does that mean? That jihad must be waged by an army! The commander is identified ... The condition to be met before prayer [ namaz ] is the Islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim ... It is not erecting vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have reached a sufficient level ... today, if Muslims have a hundred liras, they must give thirty to the Koranic schools, to train our children, girls and boys, and sixty must be given to the political establishments which open the road to power. Allah asked all His prophets to fight for power. You cannot name a single member of a religious movement who does not fight for power. I tell you, if I had as many heads as I have hairs on my head, even if each of those heads were to be torn from my shoulders for following the way of the Koran, I would not abandon my cause ... The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved. Even Abraham the Jew has realised that in this country the symbol of Islam is Refah. He who incites the Muslim community [ cemaat ] to take up arms before political power is in Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not to talk, but to apply the war plan, as soldiers in the army ...”", "Criminal proceedings had been brought against Mr Şevki Yılmaz. Although his antipathy to secularism was well-known, Refah had adopted him as a candidate in local-government elections. After he had been elected mayor of Rize, Refah had made sure that he was elected as an MP in the Turkish Grand National Assembly.", "34. In a public speech on 14 March 1993 and a television interview first recorded in 1992 and rebroadcast on 24 November 1996, Mr Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, had encouraged discrimination between believers and non-believers and had predicted that if the supporters of applying sharia came to power they would annihilate non ‑ believers:", "“Our homeland belongs to us, but not the regime, dear brothers. The regime and Kemalism belong to others. ... Turkey will be destroyed, gentlemen. People say: Could Turkey become like Algeria? Just as, in Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not waste your energy on us – I am speaking here to you, to those ... of the imperialist West, the colonising West, the wild West, to those who, in order to unite with the rest of the world, become the enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people of Kırıkkale.’ ”", "“... the army says: ‘We can accept it if you’re a supporter of the PKK, but a supporter of sharia, never.’ Well you won’t solve the problem with that attitude. If you want the solution, it’s sharia.”", "Refah had ensured that Mr Ceylan was elected as an MP and its local branches had played videotapes of this speech and the interview.", "35. Refah’s vice-chairman, Mr Ahmet Tekdal, in a speech he made in 1993 while on pilgrimage in Saudi Arabia which was shown by a Turkish television station, had said that he advocated installing a regime based on sharia:", "“In countries which have a parliamentary regime, if the people are not sufficiently aware, if they do not work hard enough to bring about the advent of ‘ hak nizami ’ [a just order or God’s order], two calamities lie ahead. The first calamity is the renegades they will have to face. They will be tyrannised by them and will eventually disappear. The second calamity is that they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘ hak nizami ’. And so they will likewise perish. Venerable brothers, our duty is to do what is necessary to introduce the system of justice, taking these subtleties into consideration. The political apparatus which seeks to establish ‘ hak nizami ’ in Turkey is the Welfare Party.”", "36. On 10 November 1996 the mayor of Kayseri, Mr Şükrü Karatepe, had urged the population to renounce secularism and asked his audience to “keep their hatred alive” until the regime was changed, in the following terms:", "“The dominant forces say ‘either you live as we do or we will sow discord and corruption among you’. So even Welfare Party Ministers dare not reveal their world-outlook inside their Ministries. This morning I too attended a ceremony in my official capacity. When you see me dressed up like this in all this finery, don’t think it’s because I’m a supporter of secularism. In this period when our beliefs are not respected, and indeed are blasphemed against, I have had to attend these ceremonies in spite of myself. The Prime Minister, other Ministers and MPs have certain obligations. But you have no obligations. This system must change. We have waited, we will wait a little longer. Let us see what the future has in store for us. And let Muslims keep alive the resentment, rancour and hatred they feel in their hearts.”", "Mr Şükrü Karatepe had been convicted of inciting the people to hatred on the ground of religion.", "37. On 8 May 1997 Mr İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, had spoken in Parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in Algeria:", "“If you attempt to close down the ‘ İmam-Hatip ’ theological colleges while the Welfare Party is in government, blood will flow. It would be worse than in Algeria. I too would like blood to flow. That’s how democracy will be installed. And it will be a beautiful thing. The army has not been able to deal with 3,500 members of the PKK. How would it see off six million Islamists? If they piss into the wind they’ll get their faces wet. If anyone attacks me I will strike back. I will fight to the end to introduce sharia.”", "Mr İbrahim Halil Çelik had been expelled from the party one month after the application for dissolution had been lodged. His exclusion had probably only been an attempt to evade the penalty in question.", "38. Refah’s vice-chairman, the Minister of Justice, Mr Şevket Kazan, had visited a person detained pending trial for activities contrary to the principle of secularism, thus publicly lending him his support as a Minister.", "39. On the basis of the evidence adduced on 7 July 1997 by Principal State Counsel’s Office, the Constitutional Court held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism:", "– In a public speech on 7 May 1996 Mr Necmettin Erbakan had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish Islamic order:", "“... A State without television is not a State. If today, with your leadership, you wished to create a State, if you wanted to set up a television station, you would not even be able to broadcast for more than twenty-four hours. Do you believe it is as easy as that to create a State? That’s what I told them ten years ago. I remember it now. Because today people who have beliefs, an audience and a certain vision of the world, have a television station of their own, thanks be to God. It is a great event.", "Conscience, the fact that the television [channel] has the same conscience in all its programmes, and that the whole is harmonious, is very important. A cause cannot be fought for without [the support of] television. Besides, today we can say that television plays the role of artillery or an air force in the jihad, that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it. That is why the jihad of today cannot be waged without television. So, for something so vital, sacrifices must be made. What difference does it make if we sacrifice money? Death is close to all of us. When everything is dark, after death, if you want something to show you the way, that something is the money you give today, with conviction, for Kanal 7. It was to remind you of that that I shared my memories with you.", "... That is why, from now on, with that conviction, we will truly make every sacrifice, until it hurts. May those who contribute, with conviction, to the supremacy of Hakk [Allah] be happy. May Allah bless you all, and may He grant Kanal 7 even more success. Greetings.”", "– By a decree of 13 January 1997 the cabinet (in which the Refah members formed a majority) had reorganised working hours in public establishments to make allowances for fasting during Ramadan. The Supreme Administrative Court had annulled this decree on the ground that it undermined the principle of secularism.", "40. The Constitutional Court observed that it had taken into consideration international human-rights protection instruments, including the Convention. It also referred to the restrictions authorised by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context that Refah’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia. The Constitutional Court observed:", "“Democracy is the antithesis of sharia. [The] principle [of secularism], which is a sign of civic responsibility, was the impetus which enabled the Turkish Republic to move on from Ummah [ ümmet – the Muslim religious community] to the nation. With adherence to the principle of secularism, values based on reason and science replaced dogmatic values. ... Persons of different beliefs, desiring to live together, were encouraged to do so by the State’s egalitarian attitude towards them. ... Secularism accelerated civilisation by preventing religion from replacing scientific thought in the State’s activities. It creates a vast environment of civic responsibility and freedom. The philosophy of modernisation of Turkey is based on a humanist ideal, namely living in a more human way. Under a secular regime religion, which is a specific social institution, can have no authority over the constitution and governance of the State. ... Conferring on the State the right to supervise and oversee religious matters cannot be regarded as interference contrary to the requirements of democratic society. ... Secularism, which is also the instrument of the transition to democracy, is the philosophical essence of life in Turkey. Within a secular State religious feelings simply cannot be associated with politics, public affairs and legislative provisions. Those are not matters to which religious requirements and thought apply, only scientific data, with consideration for the needs of individuals and societies.”", "The Constitutional Court held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim, the Constitution and supranational human-rights protection rules authorised its dissolution.", "41. The Constitutional Court observed that the public statements of Refah’s leaders, namely those of Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, had directly engaged Refah’s responsibility with regard to the constitutionality of its activities. It further observed that the public statements made by MPs Mr Şevki Yılmaz, Mr Hasan Hüseyin Ceylan and Mr İbrahim Halil Çelik, and by the mayor of Kayseri, Mr Şükrü Karatepe, had likewise engaged the party’s responsibility since it had not reacted to them in any way or sought to distance itself from them, or at least not before the commencement of the dissolution proceedings.", "42. As an additional penalty, the Constitutional Court decided to strip Necmettin Erbakan, Şevket Kazan, Ahmet Tekdal, Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik of their MP status, in accordance with Article 84 of the Constitution. It found that these persons, by their words and deeds, had caused Refah’s dissolution. The Constitutional Court also banned them for five years from becoming founding members, ordinary members, leaders or auditors of any other political party, pursuant to Article 69 § 8 of the Constitution.", "43. Judges Haşim Kılıç and Sacit Adalı expressed dissenting opinions stating, inter alia, that in their view the dissolution of Refah was not compatible either with the provisions of the Convention or with the case ‑ law of the European Court of Human Rights on the dissolution of political parties. They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking.", "44. This judgment was published in the Official Gazette on 22 February 1998." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "45. The relevant provisions of the Constitution read as follows:", "Article 2", "“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”", "Article 4", "“No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”", "Article 6", "“Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be delegated to an individual, a group or a social class. ...”", "Article 10 § 1", "“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical beliefs, religion, membership of a religious sect or other similar grounds.”", "Article 14 § 1", "“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious organisation, or establishing by any other means a State political system based on such concepts and opinions.”", "Article 24 § 4", "“No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal interest or influence thereby.”", "Article 68 § 4", "“The constitutions, rule books and activities of political parties shall not be incompatible with the independence of the State, the integrity of State territory and of the nation, human rights, the principles of equality and the rule of law, national sovereignty or the principles of a democratic, secular republic. No political party may be founded with the aim of advocating and establishing the domination of one social class or group, or a dictatorship in any form whatsoever. ...”", "Article 69 § 4", "“... The Constitutional Court shall give a final ruling on the dissolution of political parties on an application by Principal State Counsel at the Court of Cassation.”", "Article 69 § 6", "“... A political party may not be dissolved on account of activities contrary to the provisions of Article 68 § 4 unless the Constitutional Court has held that the political party concerned constitutes a centre of such activities.”", "This provision of the Constitution was added on 23 July 1995.", "Article 69 § 8", "“... Members and leaders whose declarations and activities lead to the dissolution of a political party may not be founder members, leaders or auditors of another political party for a period of five years from the date on which the reasoned decision to dissolve the party is published in the Official Gazette ...”", "Article 84", "“Forfeiture of the status of member", "Where the Council of the Presidency of the Grand National Assembly has validated the resignation of members of Parliament, the loss of their status as members shall be decided by the Grand National Assembly in plenary session.", "A convicted member of Parliament shall not forfeit the status of member until the court which convicted him has notified the plenary Assembly of the final judgment.", "A member of Parliament who continues to hold an office or carry on an activity incompatible with the status of member, within the meaning of Article 82, shall forfeit that status after a secret ballot of the plenary Assembly held in the light of the relevant committee’s report showing that the member concerned holds or carries on the office or activity in question.", "Where the Council of the Presidency of the Grand National Assembly notes that a member of Parliament, without valid authorisation or excuse, has failed, for a total of five days in one month, to take part in the work of the Assembly, that member shall forfeit the status of member where by majority vote the plenary Assembly so decides.", "The term of office of a member of Parliament whose words and deeds have, according to the Constitutional Court’s judgment, led to the dissolution of his party, shall end on the date when that judgment is published in the Official Gazette. The Presidency of the Grand National Assembly shall enforce that part of the judgment and inform the plenary Assembly accordingly.”", "B. Law no. 2820 on the regulation of political parties", "46. The relevant provisions of Law no. 2820 read as follows:", "Section 78", "“Political parties", "... shall not aim or strive to or incite third parties to", "...", "– jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.", "...”", "Section 90(1)", "“The constitution, programme and activities of political parties shall not contravene the Constitution or this Law.”", "Section 101", "“The Constitutional Court shall dissolve a political party", "...", "(b) where its general meeting, central office or executive committee ... takes a decision, issues a circular or makes a statement ... contrary to the provisions of Chapter 4 of this Law [This chapter (from section 78 to section 97), which concerns restrictions on the activities of political parties, provides, inter alia, that such activities may not be conducted to the detriment of the democratic constitutional order (including the sovereignty of the people and free elections), the nature of the nation State (including national independence, national unity and the principle of equality), and the secular nature of the State (including observance of the reforms carried out by Atatürk, the prohibition on exploiting religious feelings and the prohibition on religious demonstrations organised by political parties)], or where the chairman, vice-chairman or general secretary makes any written or oral statement contrary to those provisions.", "...", "(d) Where acts contrary to the provisions of Chapter 4 of this Law have been committed by organs, authorities or councils other than those mentioned in sub-paragraph (b), State Counsel shall, within two years of the act concerned, require the party in writing to disband those organs and/or authorities and/or councils. State Counsel shall order the permanent exclusion from the party of those members who have been convicted for committing acts or making statements which contravene the provisions of Part 4.", "State counsel shall institute proceedings for the dissolution of any political party which fails to comply with the instructions in his letter within thirty days of its service. If, within thirty days of service of State Counsel’s application, the organs, authorities or councils concerned have been disbanded by the party, and the member or members in question have been permanently excluded, the dissolution proceedings shall lapse. If not, the Constitutional Court shall consider the case on the basis of the file and shall adjudicate after hearing, if necessary, the oral submissions of State Counsel, the representatives of the political party and all those capable of providing information about the case ...”", "Section 103", "“Where it is found that a political party has become a centre of activities contrary to the provisions of sections 78 to 88 ... of the present Law, the party shall be dissolved by the Constitutional Court.”", "Section 107(1)", "“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”", "47. Paragraph 2 of section 103, which the Constitutional Court declared unconstitutional on 9 January 1998, prescribed the use of the procedure laid down in section 101(d) for determination of the question whether a political party had become a centre of anti-constitutional activities.", "C. Article 163 of the Criminal Code, repealed on 12 April 1991", "48. This provision was worded as follows:", "“It shall be an offence, punishable by eight to fifteen years’ imprisonment, to establish, found, organise, regulate, direct or administer associations with the intention of adapting the fundamental legal, social, economic or political bases of the State, even in part, to religious beliefs.", "It shall be an offence, punishable by five to twelve years’ imprisonment, to be a member of an association of that type or to incite another to become a member.", "It shall be an offence, punishable by five to ten years’ imprisonment, to spread propaganda in any form or to attempt to acquire influence by exploiting religion, religious feelings or objects regarded as sacred by religion in a manner contrary to the principle of secularism and with the intention of adapting the fundamental legal, social, economic or political bases of the State, even in part, to religious beliefs or of serving political interests.", "It shall be an offence, punishable by two to five years’ imprisonment, to spread propaganda in any form or to attempt to acquire influence, with the aim of serving one’s personal interests or obtaining advantages, by exploiting religion, religious feelings, objects regarded as sacred by religion or religious books.", "Where the acts mentioned above are committed on the premises of the public administrative authorities, municipal councils, publicly owned undertakings whose capital, or part of whose capital, belongs to the State, trade unions, workers’ organisations, schools, or institutions of higher education, or by civil servants, technicians, doorkeepers or members of such establishments, the penalty shall be increased by a third.", "Where the acts mentioned in the third and fourth paragraphs above are committed by means of publications, the penalty shall be increased by a half.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "49. The applicants alleged that the dissolution of Refah Partisi (the Welfare Party) and the temporary prohibition barring its leaders – including Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal – from holding similar office in any other political party had infringed their right to freedom of association, guaranteed by Article 11 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association ...", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”", "A. Whether there was an interference", "50. The parties accepted that Refah’s dissolution and the measures which accompanied it amounted to an interference with the applicants’ exercise of their right to freedom of association. The Court takes the same view.", "B. Whether the interference was justified", "51. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims.", "1. “Prescribed by law”", "(a) Arguments of the parties", "(i) The applicants", "52. The applicants submitted that the criteria applied by the Constitutional Court in establishing that Refah had become a centre of anti-constitutional activities were broader than those laid down by Law no. 2820 on the regulation of political parties. The provisions of Law no. 2820, which laid down stricter criteria in the matter, namely those concerning refusal to expel members who had been convicted of criminal offences, had been declared void by a decision of the Constitutional Court one week before its decision to dissolve Refah. Moreover, the former decision had been published in the Official Gazette after Refah’s dissolution.", "53. The applicants argued that all of the above had made it impossible to foresee what criteria the Constitutional Court would apply in deciding that Refah had become a centre of anti-constitutional activities. The new version of Law no. 2820 had not been accessible to the applicants before Refah’s dissolution. They could not have been expected to organise their political activities in accordance with criteria that did not exist before the party’s dissolution. The applicants submitted that the former version of Law no. 2820 should have been applied in their case and that, after Refah’s exclusion of its members whose speeches had been cited by Principal State Counsel in his submissions, the Constitutional Court should have discontinued the dissolution proceedings.", "(ii) The Government", "54. The Government asked the Court to reject the applicants’ arguments. They observed that the interference in question was clearly prescribed by Articles 68 and 69 of the Constitution, which required political parties constituting centres of anti-constitutional activities, contrary to the principles of equality and of a secular, democratic republic in particular, to be dissolved by the Constitutional Court. They emphasised that one of the conditions for the dissolution of a political party, namely failure on its part to expel those of its members who had been convicted of criminal offences – a condition which had been added by the Law on the regulation of political parties to the definition of a “centre of anti-constitutional activities” – was no longer applicable in the case on account of changes to the Criminal Code. In other words, following the repeal of Article 163 of the Turkish Criminal Code, which concerned the dissemination of anti-secular ideas and the creation of associations for that purpose, the procedure laid down in section 103(2) of the Law on the regulation of political parties had become devoid of purpose. The Government submitted that for that reason section 103(2) was manifestly unconstitutional in that its application would have made it impossible to give full effect to the Constitution, and in particular Article 69 § 6 thereof, which gave the Constitutional Court sole power to rule that a political party constituted a centre of anti-constitutional activities.", "55. The Government further submitted that a judgment concerning a review of the constitutionality of the specific rule to be applied in a particular dispute did not need to be published in the Official Gazette before the commencement of that dispute in order to be operative. In such a situation the Constitutional Court adjourned the proceedings until it had settled the question of the constitutionality of a legislative provision it had to apply. That procedure was a well-established practice of the Turkish Constitutional Court and of the higher courts in a number of other European countries.", "(b) The Court’s assessment", "56. The Court must first consider whether the applicants are estopped from submitting this argument, since they accepted in their additional observations to the Chamber and at the hearing before the Chamber that the measures complained of were in accordance with domestic law, and in particular with the Constitution. In its judgment the Chamber noted that the parties agreed “that the interference concerned was ‘prescribed by law’, the measures imposed by the Constitutional Court being based on Articles 68, 69 and 84 of the Constitution and sections 101 and 107 of Law no. 2820 on the regulation of political parties”.", "However, the Court points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber’s decision on admissibility. It does not exclude the possibility of estoppel where one of the parties breaks good faith through a radical change of position. However, that has not occurred in the instant case, as the applicants presented in their initial applications the main lines of their argument on this point. They are therefore not estopped from raising the issue now (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139-41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; and Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V).", "57. As regards the accessibility of the provisions in issue and the foreseeability of their effects, the Court reiterates that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the evolving views of society. A law which confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see Müller and Others v. Switzerland, judgment of 24 May 1988, Series A no. 133, p. 20, § 29; Ezelin v. France, judgment of 26 April 1991, Series A no. 202, pp. 21-22, § 45; and Margareta and Roger Andersson v. Sweden, judgment of 25 February 1992, Series A no. 226-A, p. 25, § 75). The Court also accepts that the level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the status of those to whom it is addressed. It is, moreover, primarily for the national authorities to interpret and apply domestic law (see Vogt v. Germany, 26 September 1995, Series A no. 323, p. 24, § 48).", "58. In the instant case the Court observes that the dispute under domestic law concerned the constitutionality of the activities of a political party and fell within the jurisdiction of the Constitutional Court. The written law most relevant to the question whether the interference was “prescribed by law” is the Turkish Constitution.", "59. The parties did not dispute that activities contrary to the principles of equality and respect for a democratic, secular republic were undoubtedly unconstitutional under Article 68 of the Constitution. Nor did they deny that the Constitutional Court had sole jurisdiction, on an application by Principal State Counsel, to dissolve a political party which had become a centre of activities contrary to Article 68 of the Constitution. Moreover, Article 69 of the Constitution (amended in 1995) explicitly confirms that the Constitutional Court alone is empowered to determine whether a political party constitutes a centre of anti-constitutional activities. The Court notes that Refah’s MPs took part in the work of the parliamentary committee concerned and the debate in the Grand National Assembly on the 1995 amendments to the Constitution (see paragraph 11 above).", "60. Furthermore, the fact that on 12 April 1991 anti-secular activities ceased to be punishable under the criminal law is not disputed by either party. The Court notes that, as the Turkish Constitutional Court explained in its judgment of 9 January 1998, there thus resulted a divergence between the Law on the regulation of political parties and the Constitution, in that the requirement in section 103(2) of the Law on the regulation of political parties that in order for the political party concerned to constitute a “centre of anti-constitutional activities” it had to have refused to expel those of its members who had been convicted of criminal offences, taken together with the amendments to the Criminal Code of 12 April 1991, had rendered meaningless the Constitutional Court’s power to dissolve political parties which constituted centres of anti-secular activities, even though that power was clearly conferred by Articles 68 § 4 and 69 §§ 4 and 6 of the Constitution.", "61. It remains to be determined whether the applicants must have been aware of the possibility of a direct application of the Constitution in their case and could thus have foreseen the risks they ran through their party’s anti-secular activities or through their refusal to distance themselves from that type of activity, without the procedure laid down by section 103(2) of the Law on the regulation of political parties being followed.", "In order to be able to answer that question, the Court must first consider the relevant particularities of the legal background against which the facts of the case took place, as set out in the judgment of the Turkish Constitutional Court and not contested by the parties. The Turkish Constitution cannot be amended by ordinary legislation and takes precedence over statute law; a conflict between the Constitution’s provisions and those of ordinary legislation is resolved in the Constitution’s favour. In addition, the Constitutional Court has the power and the duty to review the constitutionality of legislation. Where in a particular case there is a discrepancy between the provisions of the applicable statute law and those of the Constitution, as happened in the instant case, the Constitutional Court is clearly required to give precedence to the provisions of the Constitution, disregarding the unconstitutional provisions of the relevant legislation.", "62. The Court next takes into account the applicants’ status as the persons to whom the relevant legal instruments were addressed. Refah was a large political party which had legal advisers conversant with constitutional law and the rules governing political parties. Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal were also experienced politicians. As members of the Turkish parliament they had taken part in parliamentary discussions and procedures concerning the amendments to the Constitution, during which the Constitutional Court’s power to rule that a party had become a centre of anti-constitutional activities and the discrepancy between the new text of the Constitution and Law no. 2820 were mentioned. In addition, Mr Şevket Kazan and Mr Ahmet Tekdal were lawyers by profession (see paragraphs 10-11 above).", "63. That being so, the Court considers that the applicants were reasonably able to foresee that they ran the risk of proceedings to dissolve Refah if the party’s leaders and members engaged in anti-secular activities, and that the fact that the steps laid down in section 103(2) of Law no. 2820 were not taken, having become inapplicable as a result of the 1991 changes to the Criminal Code’s provisions on anti-secular activities, could not prevent implementation of the dissolution procedure required by the Turkish Constitution.", "64. Consequently, the interference was “prescribed by law”.", "2. Legitimate aim", "65. The Government submitted that the interference complained of pursued several legitimate aims, namely protection of public safety, national security and the rights and freedoms of others and the prevention of crime.", "66. The applicants accepted in principle that protection of public safety and the rights and freedoms of others and the prevention of crime might depend on safeguarding the principle of secularism. However, they submitted that in pleading those aims the Government sought to conceal the underlying reasons which had led to Refah’s dissolution. In reality, they argued, this had been the aim of major business concerns and the military, whose interests were threatened by Refah’s economic policy, involving a reduction of the national debt to zero.", "67. The Court considers that the applicants have not adduced sufficient evidence to establish that Refah was dissolved for reasons other than those cited by the Constitutional Court. Taking into account the importance of the principle of secularism for the democratic system in Turkey, it considers that Refah’s dissolution pursued several of the legitimate aims listed in Article 11, namely protection of national security and public safety, prevention of disorder or crime and protection of the rights and freedoms of others.", "3. “Necessary in a democratic society”", "(a) Arguments of the parties", "(i) The applicants", "68. The applicants submitted in the first place that the criticisms that had been levelled at Refah on the basis of speeches made several years before were not nearly sufficient to prove that the party constituted a threat to secularism and democracy in Turkey at the time when the dissolution proceedings were instituted against it.", "69. They further observed that Refah had found itself in power thirteen years after its foundation. With its millions of members it had had a long political existence and had taken on many responsibilities in local and central government. In order to determine whether the party’s dissolution was necessary, the Court should assess all the factors that had led to the decision and all of the party’s activities since it had come into existence.", "70. The applicants further emphasised the fact that Refah had been in power for a year, from June 1996 to July 1997, during which time it could have tabled draft legislation to introduce a regime based on Islamic law. But it had done nothing of the sort. The applicants submitted that “rigorous” European supervision on the Court’s part would have shown that Refah complied with democratic principles.", "71. As regards the imputability to Refah of the statements and acts cited in the dissolution judgment, the applicants maintained that where these acts and speeches were attributable to members who had been expelled from the party for that very reason they could not engage Refah’s responsibility. The remarks of Refah’s chairman, Mr Necmettin Erbakan, had to be interpreted in context, in the light of the full text of the speeches from which they had been extracted. No apologia for violence could be discerned in those speeches.", "72. With regard to the theory of a plurality of legal systems, the applicants pointed out that Mr Necmettin Erbakan’s speeches on that point were isolated and had been made in 1993. It was not the policy of Refah, as a political party, to introduce a plurality of legal systems, but at all events what Mr Necmettin Erbakan had proposed was only the introduction of a “civil-law” system, based on the freedom to enter into contracts, which would not have affected the general sphere of public law. Frustrating such a policy in the name of the special role of secularism in Turkey amounted to discrimination against Muslims who wished to conduct their private lives in accordance with the precepts of their religion.", "73. On the question whether Refah sought to introduce a regime based on sharia, the applicants observed in the first place that there was no reference in Refah’s constitution or its programme to either sharia or Islam. Secondly, they submitted that analysis of the speeches made by Refah’s leaders did not establish that it was the party’s policy to introduce sharia in Turkey. The desire to see sharia introduced in Turkey, as expressed by certain MPs who had subsequently been expelled from Refah, could not be attributed to the party as a whole. In any case, the proposal to introduce sharia and the plan to establish a plurality of legal systems were incompatible, and the Constitutional Court had been mistaken in accusing Refah of supporting both proposals simultaneously.", "74. Moreover, in the applicants’ submission, the concept of a “just order”, which had been mentioned in certain speeches by party members, was not a reference to divine order, contrary to what had been stated in the Chamber’s judgment. Many theoreticians had used the same term in order to describe their ideal society without giving it any religious connotation.", "75. The applicants further disputed the statement in paragraph 72 of the Chamber’s judgment that “It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia ...”. They submitted that such a statement could lead to a distinction between “Christian democrats” and “Muslim democrats” and constitute discrimination against the 150 million Muslims in a total European population of 800 million. In any event, they considered that the question did not fall within the Court’s jurisdiction.", "76. As regards recourse to force, the applicants maintained that even though some Refah members had mentioned such a possibility in their speeches, no member of Refah had ever attempted to use force. The inescapable conclusion was that the acts and speeches criticised on this account did not at the time of the party’s dissolution represent a real danger for secularism in Turkey. Certain members who had made such speeches had been expelled from Refah. One of them had been convicted just before the dissolution, so that Refah had not had time to expel him before being dissolved. The other speeches for which Refah’s leaders had been criticised had been made before the party came to power.", "77. Lastly, the applicants submitted that the interference in issue was not proportionate to the aims pursued. They laid particular emphasis on the harshness of dissolving any political party on account of speeches made by some of its members, the scale of the political disabilities imposed on the three applicants, Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, and the heavy financial losses suffered by Refah following its dissolution.", "(ii) The Government", "78. On the question whether Refah presented a danger at the time of its dissolution, the Government observed that the party had never exercised power alone and had therefore never had an opportunity to put its plan of setting up a theocratic State into practice. They submitted that if Refah had been the sole party in power it would have been quite capable of implementing its policy and thus putting an end to democracy.", "79. The Government further submitted that the speeches criticised by the Constitutional Court were imputable to Refah. They pointed out that Article 4 of the party’s constitution provided for the exclusion of members responsible for acts contrary to the decisions of its executive organs; under Article 5 of the constitution members who committed acts contrary to the party’s constitution and programme were liable to the same penalty. The Government asserted that these provisions had never been applied to the Refah members guilty of the offending acts and statements.", "80. Moreover, the plan to introduce a plurality of legal systems, which had never been abandoned by Refah, was clearly incompatible with the principle of non-discrimination, which was enshrined in the Convention and was one of the fundamental principles of democracy.", "81. With regard to the question whether Refah supported the introduction of sharia in Turkey, the Government observed that it was not the party’s official programme which caused a problem but the fact that certain aspects of the activities and speeches of Refah’s leaders unambiguously indicated that the party would seek to introduce sharia if it held power alone. They pointed out that the concept of a “just order”, mentioned by Refah, had formed the basis for its campaign in the 1995 general election. In explaining the concept of a “just order” in the context of that propaganda, Refah’s leaders had clearly been referring to an order based on sharia.", "82. The Government endorsed the opinion expressed by the Constitutional Court and in paragraph 72 of the Chamber’s judgment that sharia is hard to reconcile with democracy and the Convention system. A theocratic State could not be a democratic State, as could be seen from Turkish history during the Ottoman period, among other examples. The Government mentioned a number of instances of incompatibility between the main rules of sharia and the rights and freedoms guaranteed by the Convention.", "83. The Government did not believe that Refah was content to interpret the principle of secularism differently. In their submission, the party wished to do away with that principle altogether. This was evidenced by the submissions made on Refah’s behalf during the latest debates on amendment of the Constitution, since Refah had quite simply proposed deleting the reference in the Constitution to the principle of secularism.", "84. As to the possibility of using force as a method of political struggle, the Government cited the statements of Refah members who advocated the use of violence in order to resist certain government policies or to gain power and retain it. They submitted that a number of acts and speeches by Refah members constituted incitement to a popular uprising and the generalised violence characterising any “holy war”.", "85. The Government further observed that at the material time radical Islamist groups such as Hizbullah were carrying out numerous acts of terrorism in Turkey. It was also at that time that Refah members were advocating Islamic fundamentalism in their speeches, one example being a visit made by one of the applicants, Mr Şevket Kazan, the Minister of Justice at the time, to a mayor who had been arrested for organising a “Jerusalem evening” in a room decorated with posters showing the leaders of the terrorist organisations Hamas and Hizbullah.", "(b) The Court’s assessment", "(i) General principles", "(α) Democracy and political parties in the Convention system", "86. On the question of the relationship between democracy and the Convention, the Court has already ruled, in United Communist Party of Turkey and Others v. Turkey (judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 21-22, § 45), as follows:", "“Democracy is without doubt a fundamental feature of the European public order ...", "That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights ... The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention ...; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society ...", "In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.”", "87. The Court has also confirmed on a number of occasions the primordial role played in a democratic regime by political parties enjoying the freedoms and rights enshrined in Article 11 and also in Article 10 of the Convention.", "In United Communist Party of Turkey and Others, cited above, it stated that it found even more persuasive than the wording of Article 11 the fact that political parties were a form of association essential to the proper functioning of democracy (p. 17, § 25). In view of the role played by political parties, any measure taken against them affected both freedom of association and, consequently, democracy in the State concerned (p. 18, § 31).", "It is in the nature of the role they play that political parties, the only bodies which can come to power, also have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena.", "88. Moreover, the Court has previously noted that protection of opinions and the freedom to express them within the meaning of Article 10 of the Convention is one of the objectives of the freedoms of assembly and association enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy (ibid., pp. 20-21, §§ 42-43).", "89. The Court considers that there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). Inasmuch as their activities form part of a collective exercise of the freedom of expression, political parties are also entitled to seek the protection of Article 10 of the Convention (see United Communist Party of Turkey and Others, cited above, pp. 20-21, § 43).", "(β) Democracy and religion in the Convention system", "90. For the purposes of the present case, the Court also refers to its case-law concerning the place of religion in a democratic society and a democratic State. It reiterates that, as protected by Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I).", "91. Moreover, in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, p. 18, § 33). The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII) and that it requires the State to ensure mutual tolerance between opposing groups (see, mutatis mutandis, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001-XII).", "92. The Court’s established case-law confirms this function of the State. It has held that in a democratic society the State may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety (see Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001-V).", "While freedom of religion is in the first place a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of a religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, it does not protect every act motivated or influenced by a religion or belief (see Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27).", "The obligation for a teacher to observe normal working hours which, he asserts, clash with his attendance at prayers, may be compatible with the freedom of religion (see X v. the United Kingdom, no. 8160/78, Commission decision of 12 March 1981, Decisions and Reports (DR) 22, p. 27), as may the obligation requiring a motorcyclist to wear a crash helmet, which in his view is incompatible with his religious duties (see X v. the United Kingdom, no. 7992/77, Commission decision of 12 July 1978, DR 14, p. 234).", "93. In applying the above principles to Turkey the Convention institutions have expressed the view that the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy. An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention (see the opinion of the Commission, expressed in its report of 27 February 1996, in Kalaç, cited above, p. 1215, § 44, and, mutatis mutandis, p. 1209, §§ 27-31).", "94. In order to perform its role as the neutral and impartial organiser of the exercise of religious beliefs, the State may decide to impose on its serving or future civil servants, who will be required to wield a portion of its sovereign power, the duty to refrain from taking part in the Islamic fundamentalist movement, whose goal and plan of action is to bring about the pre-eminence of religious rules (see, mutatis mutandis, Yanasik v. Turkey, no. 14524/89, Commission decision of 6 January 1993, DR 74, p. 14, and Kalaç, cited above, p. 1209, § 28).", "95. In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9 § 2 of the Convention. In that context, secular universities may regulate manifestation of the rites and symbols of the said religion by imposing restrictions as to the place and manner of such manifestation with the aim of ensuring peaceful co ‑ existence between students of various faiths and thus protecting public order and the beliefs of others (see Karaduman v. Turkey, no. 16278/90, Commission decision of 3 May 1993, DR 74, p. 93).", "(γ) The possibility of imposing restrictions, and rigorous European supervision", "96. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State’s institutions, of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system. For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11 – a matter which the Court considers below. Only when that review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied (see United Communist Party of Turkey and Others, cited above, p. 18, § 32).", "97. The Court has also defined as follows the limits within which political organisations can continue to enjoy the protection of the Convention while conducting their activities (ibid., p. 27, § 57):", "“... one of the principal characteristics of democracy [is] the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned.”", "98. On that point, the Court considers that a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47).", "99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy (see paragraphs 86-89 above), no one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany (dec.), no. 39793/98, ECHR 2001-XII).", "In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.", "100. The Court reiterates, however, that the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation. Although it is not for the Court to take the place of the national authorities, which are better placed than an international court to decide, for example, the appropriate timing for interference, it must exercise rigorous supervision embracing both the law and the decisions applying it, including those given by independent courts. Drastic measures, such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken only in the most serious cases (see the following judgments: United Communist Party of Turkey and Others, cited above, p. 22, § 46; Socialist Party and Others, cited above, p. 1258, § 50; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 45, ECHR 1999-VIII). Provided that it satisfies the conditions set out in paragraph 98 above, a political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention.", "(δ) Imputability to a political party of the acts and speeches of its members", "101. The Court further considers that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. That is why the Court has always pointed out that a party’s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party’s leaders and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions (see United Communist Party of Turkey and Others, cited above, p. 27, § 58, and Socialist Party and Others, cited above, pp. 1257-58, § 48).", "(ε) The appropriate timing for dissolution", "102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may “reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime” (see the Chamber’s judgment, § 81).", "103. The Court takes the view that such a power of preventive intervention on the State’s part is also consistent with Contracting Parties’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non-State entities (see, for example, with regard to the State’s obligation to make private hospitals adopt appropriate measures to protect life, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I). A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d’être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy.", "(ζ) Overall examination", "104. In the light of the above considerations, the Court’s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a “pressing social need” (see, for example, Socialist Party and Others, cited above, p. 1258, § 49) must concentrate on the following points: (i) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society”.", "105. The overall examination of the above points that the Court must conduct also has to take account of the historical context in which the dissolution of the party concerned took place and the general interest in preserving the principle of secularism in that context in the country concerned to ensure the proper functioning of “democratic society” (see, mutatis mutandis, Petersen, cited above).", "(ii) Application of the above principles to the present case", "106. The Court will devote the first part of its examination to the question whether Refah’s dissolution and the secondary penalties imposed on the other applicants met a “pressing social need”. It will then determine, if the case arises, whether those penalties were “proportionate to the legitimate aims pursued”.", "(α) Pressing social need", "The appropriate timing for dissolution", "107. The Court will first determine whether Refah could have presented a threat to the democratic regime at the time when it was dissolved.", "It observes in that connection that Refah was founded in 1983, took part in a number of general and local election campaigns and obtained approximately 22% of the votes in the 1995 general election, which gave it 158 seats in the Grand National Assembly (out of a total of 450 at the material time). After sharing power in a coalition government, Refah obtained about 35% of the votes in the local elections of November 1996. According to an opinion poll carried out in January 1997, if a general election had been held at that time Refah would have received 38% of the votes. According to the forecasts of the same opinion poll, Refah could have obtained 67% of the votes in the general election likely to be held about four years’ later (see paragraph 11 above). Notwithstanding the uncertain nature of some opinion polls, those figures bear witness to a considerable rise in Refah’s influence as a political party and its chances of coming to power alone.", "108. The Court accordingly considers that at the time of its dissolution Refah had the real potential to seize political power without being restricted by the compromises inherent in a coalition. If Refah had proposed a programme contrary to democratic principles, its monopoly of political power would have enabled it to establish the model of society envisaged in that programme.", "109. As regards the applicants’ argument that Refah was punished for speeches by its members made several years before its dissolution, the Court considers that the Turkish courts, when reviewing the constitutionality of Refah’s acts, could legitimately take into consideration the progression over time of the real risk that the party’s activities represented for the principles of democracy. The same applies to the review of Refah’s compliance with the principles set forth in the Convention.", "Firstly, the programme and policies of a political party may become clear through the accumulation of acts and speeches by its members over a relatively long period. Secondly, the party concerned may, over the years, increase its chances of gaining political power and implementing its policies.", "110. While it can be considered, in the present case, that Refah’s policies were dangerous for the rights and freedoms guaranteed by the Convention, the real chances that Refah would implement its programme after gaining power made that danger more tangible and more immediate. That being the case, the Court cannot criticise the national courts for not acting earlier, at the risk of intervening prematurely and before the danger concerned had taken shape and become real. Nor can it criticise them for not waiting, at the risk of putting the political regime and civil peace in jeopardy, for Refah to seize power and swing into action, for example by tabling bills in Parliament, in order to implement its plans.", "In short, the Court considers that in electing to intervene at the time when they did in the present case the national authorities did not go beyond the margin of appreciation left to them under the Convention.", "Imputability to Refah of the acts and speeches of its members", "111. The parties before the Court agreed that neither in its constitution nor in the coalition programme it had negotiated with another political party, the True Path Party (Doğru Yol Partisi), had Refah proposed altering Turkey’s constitutional settlement in a way that would be contrary to the fundamental principles of democracy. Refah was dissolved on the basis of the statements made and stances adopted by its chairman and some of its members.", "112. Those statements and stances were made or adopted, according to the Constitutional Court, by seven of Refah’s leading figures, namely its chairman, Mr Necmettin Erbakan, its two vice-chairmen, Mr Şevket Kazan and Mr Ahmet Tekdal, three Refah members of Turkey’s Grand National Assembly, Mr Şevki Yılmaz, Mr Hasan Hüseyin Ceylan and Mr İbrahim Halil Çelik, and the mayor of the city of Konya, Mr Recai Karatepe, elected on a Refah ticket.", "113. The Court considers that the statements and acts of Mr Necmettin Erbakan, in his capacity as chairman of Refah or as the Prime Minister elected on account of his position as the leader of his party, could incontestably be attributed to Refah. The role of a chairman, who is frequently a party’s emblematic figure, is different in that respect from that of a simple member. Remarks on politically sensitive subjects or positions taken up by the chairman of a party are perceived by political institutions and by public opinion as acts reflecting the party’s views, rather than his personal opinions, unless he declares that this is not the case. The Court observes on that point that Mr Erbakan never made it clear that his statements and stances did not reflect Refah’s policy or that he was only expressing his personal opinion.", "114. The Court considers that the speeches and stances of Refah’s vice-chairmen could be treated in the same way as those of its chairman. Save where otherwise indicated, remarks by such persons on political questions are imputable to the party they represent. That applies in the present case to the remarks of Mr Şevket Kazan and Mr Ahmet Tekdal.", "115. Moreover, the Court considers that, inasmuch as the acts and remarks of the other Refah members who were MPs or held local government posts formed a whole which disclosed the party’s aims and intentions and projected an image, when viewed in the aggregate, of the model of society it wished to set up, these could also be imputed to Refah. These acts or remarks were likely to influence potential voters by arousing their hopes, expectations or fears, not because they were attributable to individuals but because they had been done or made on Refah’s behalf by MPs and a mayor, all of whom had been elected on a Refah platform. Such acts and speeches were potentially more effective than abstract forms of words written in the party’s constitution and programme in achieving any unlawful ends. The Court considers that such acts and speeches are imputable to a party unless it distances itself from them.", "But a short time later Refah presented those responsible for these acts and speeches as candidates for important posts, such as member of Parliament or mayor of a large city, and distributed one of the offending speeches to its local branches to serve as material for the political training of its members. Before the proceedings to dissolve Refah were instituted no disciplinary action was taken within the party against those who had made the speeches concerned on account of their activities or public statements and Refah never criticised their remarks. The Court accepts the Turkish Constitutional Court’s conclusion on this point to the effect that Refah had decided to expel those responsible for the acts and speeches concerned in the hope of avoiding dissolution and that the decision was not made freely, as the decisions of leaders of associations should be if they are to be recognised under Article 11 (see, mutatis mutandis, Freedom and Democracy Party (ÖZDEP), cited above, § 26).", "The Court accordingly concludes that the acts and speeches of Refah’s members and leaders cited by the Constitutional Court in its dissolution judgment were imputable to the whole party.", "The main grounds for dissolution cited by the Constitutional Court", "116. The Court considers on this point that among the arguments for dissolution pleaded by Principal State Counsel at the Court of Cassation those cited by the Constitutional Court as grounds for its finding that Refah had become a centre of anti-constitutional activities can be classified into three main groups: (i) the arguments that Refah intended to set up a plurality of legal systems, leading to discrimination based on religious beliefs; (ii) the arguments that Refah intended to apply sharia to the internal or external relations of the Muslim community within the context of this plurality of legal systems; and (iii) the arguments based on the references made by Refah members to the possibility of recourse to force as a political method. The Court must therefore limit its examination to those three groups of arguments cited by the Constitutional Court.", "(a) The plan to set up a plurality of legal systems", "117. The Court notes that the Constitutional Court took account in this connection of two declarations by the applicant Mr Necmettin Erbakan, Refah’s chairman, on 23 March 1993 in Parliament and on 10 October 1993 at a Refah party conference (see paragraph 28 above). In the light of its considerations on the question of the appropriate timing for dissolution of the party (see paragraphs 107-10 above) and on the imputability to Refah of Mr Necmettin Erbakan’s speeches (see paragraph 113 above), it takes the view that these two speeches could be regarded as reflecting one of the policies which formed part of Refah’s programme, even though the party’s constitution said nothing on the subject.", "118. With regard to the applicants’ argument that when Refah was in power it had never taken any concrete steps to implement the idea behind this proposal, the Court considers that it would not have been realistic to wait until Refah was in a position to include such objectives in the coalition programme it had negotiated with a political party of the centre-right. It merely notes that a plurality of legal systems was a policy which formed part of Refah’s programme.", "119. The Court sees no reason to depart from the Chamber’s conclusion that a plurality of legal systems, as proposed by Refah, cannot be considered to be compatible with the Convention system. In its judgment, the Chamber gave the following reasoning:", "“70. ... the Court considers that Refah’s proposal that there should be a plurality of legal systems would introduce into all legal relationships a distinction between individuals grounded on religion, would categorise everyone according to his religious beliefs and would allow him rights and freedoms not as an individual but according to his allegiance to a religious movement.", "The Court takes the view that such a societal model cannot be considered compatible with the Convention system, for two reasons.", "Firstly, it would do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society, since it would oblige individuals to obey, not rules laid down by the State in the exercise of its above-mentioned functions, but static rules of law imposed by the religion concerned. But the State has a positive obligation to ensure that everyone within its jurisdiction enjoys in full, and without being able to waive them, the rights and freedoms guaranteed by the Convention (see, mutatis mutandis, Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, p. 14, § 25).", "Secondly, such a system would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. A difference in treatment between individuals in all fields of public and private law according to their religion or beliefs manifestly cannot be justified under the Convention, and more particularly Article 14 thereof, which prohibits discrimination. Such a difference in treatment cannot maintain a fair balance between, on the one hand, the claims of certain religious groups who wish to be governed by their own rules and on the other the interest of society as a whole, which must be based on peace and on tolerance between the various religions and beliefs (see, mutatis mutandis, the judgment of 23 July 1968 in the “Belgian linguistic” case, Series A no. 6, pp. 33-35, §§ 9 and 10, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, pp. 35-36, § 72).", "(b) Sharia", "120. The Court observes in the first place that the intention to set up a regime based on sharia was explicitly portended in the following remarks cited by the Constitutional Court, which had been made by certain members of Refah, all of whom were MPs:", "– In a television interview broadcast on 24 November 1996 Mr Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, said that sharia was the solution for the country (see paragraph 34 above);", "– On 8 May 1997 Mr İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, said: “I will fight to the end to introduce sharia” (see paragraph 37 above);", "– In April 1994 Mr Şevki Yılmaz, Refah MP for the province of Rize, urged believers to “call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s Messenger of his jurisdiction in their country” and asserted: “Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ...” He went on to say: “The condition to be met before prayer is the Islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim” and “The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved” (see paragraph 33 above).", "121. The Court further notes the following remarks by Refah’s chairman and vice-chairman, on their desire to set up a “just order” or “order of justice” or “God’s order”, which the Constitutional Court took into consideration:", "– On 13 April 1994 Mr Necmettin Erbakan said: “Refah will come to power and a just order [ adil dozen ] will be established” (see paragraph 31 above), and in a speech on 7 May 1996 he praised “those who contribute, with conviction, to the supremacy of Allah” (see paragraph 39 above);", "– While on pilgrimage in 1993 Mr Ahmet Tekdal said: “If the people ... do not work hard enough to bring about the advent of ‘ hak nizami ’ [a just order or God’s order], ... they will be tyrannised by [renegades] and will eventually disappear ... they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘ hak nizami ’ ” (see paragraph 35 above).", "122. Even though these last two statements lend themselves to a number of different interpretations, their common denominator is that they both refer to religious or divine rules as the basis for the political regime which the speakers wished to bring into being. They betray ambiguity about those speakers’ attachment to any order not based on religious rules. In the light of the context created by the various views attributed to Refah’s leaders which the Constitutional Court cited in its judgment, for example on the question of the wearing of Islamic headscarves in the public sector or on the organisation of working hours in the civil service to fit in with the appointed times for prayers, the statements concerned could reasonably have been understood as confirming statements made by Refah MPs which revealed the party’s intention of setting up a regime based on sharia. The Court can therefore accept the Constitutional Court’s conclusion that these remarks and stances of Refah’s leaders formed a whole and gave a clear picture of a model conceived and proposed by the party of a State and society organised according to religious rules.", "123. The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention:", "“72. Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. ... In the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.”", "124. The Court must not lose sight of the fact that in the past political movements based on religious fundamentalism have been able to seize political power in certain States and have had the opportunity to set up the model of society which they had in mind. It considers that, in accordance with the Convention’s provisions, each Contracting State may oppose such political movements in the light of its historical experience.", "125. The Court further observes that there was already an Islamic theocratic regime under Ottoman law. When the former theocratic regime was dismantled and the republican regime was being set up, Turkey opted for a form of secularism which confined Islam and other religions to the sphere of private religious practice. Mindful of the importance for survival of the democratic regime of ensuring respect for the principle of secularism in Turkey, the Court considers that the Constitutional Court was justified in holding that Refah’s policy of establishing sharia was incompatible with democracy (see paragraph 40 above).", "(c) Sharia and its relationship with the plurality of legal systems proposed by Refah", "126. The Court will next examine the applicants’ argument that the Chamber contradicted itself in holding that Refah supported introducing both a plurality of legal systems and sharia simultaneously.", "It takes note of the Constitutional Court’s considerations concerning the part played by a plurality of legal systems in the application of sharia in the history of Islamic law. These showed that sharia is a system of law applicable to relations between Muslims themselves and between Muslims and the adherents of other faiths. In order to enable the communities owing allegiance to other religions to live in a society dominated by sharia, a plurality of legal systems had also been introduced by the Islamic theocratic regime during the Ottoman Empire, before the Republic was founded.", "127. The Court is not required to express an opinion in the abstract on the advantages and disadvantages of a plurality of legal systems. It notes, for the purposes of the present case, that – as the Constitutional Court observed – Refah’s policy was to apply some of sharia’s private-law rules to a large part of the population in Turkey (namely Muslims), within the framework of a plurality of legal systems. Such a policy goes beyond the freedom of individuals to observe the precepts of their religion, for example by organising religious wedding ceremonies before or after a civil marriage (a common practice in Turkey) and according religious marriage the effect of a civil marriage (see, mutatis mutandis, Serif v. Greece, no. 38178/97, § 50, ECHR 1999-IX). This Refah policy falls outside the private sphere to which Turkish law confines religion and suffers from the same contradictions with the Convention system as the introduction of sharia (see paragraph 125 above).", "128. Pursuing that line of reasoning, the Court rejects the applicants’ argument that prohibiting a plurality of private-law systems in the name of the special role of secularism in Turkey amounted to establishing discrimination against Muslims who wished to live their private lives in accordance with the precepts of their religion.", "It reiterates that freedom of religion, including the freedom to manifest one’s religion by worship and observance, is primarily a matter of individual conscience, and stresses that the sphere of individual conscience is quite different from the field of private law, which concerns the organisation and functioning of society as a whole.", "It has not been disputed before the Court that in Turkey everyone can observe in his private life the requirements of his religion. On the other hand, Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession). The freedom to enter into contracts cannot encroach upon the State’s role as the neutral and impartial organiser of the exercise of religions, faiths and beliefs (see paragraphs 91 ‑ 92 above).", "(d) The possibility of recourse to force", "129. The Court takes into consideration under this heading the following remarks cited by the Constitutional Court and made by:", "– Mr Necmettin Erbakan, on 13 April 1994, on the question whether power would be gained by violence or by peaceful means (whether the change would involve bloodshed or not – see paragraph 31 above);", "– Mr Şevki Yılmaz, in April 1994, concerning his interpretation of jihad and the possibility for Muslims of arming themselves after coming to power (see paragraph 33 above);", "– Mr Hasan Hüseyin Ceylan, on 14 March 1993, who insulted and threatened the supporters of a regime on the Western model (see paragraph 34 above);", "– Mr Şükrü Karatepe, who, in his speech on 10 December 1996, advised believers to keep alive the rancour and hatred they felt in their hearts (see paragraph 36 above); and", "– Mr İbrahim Halil Çelik, on 8 May 1997, who said he wanted blood to flow to prevent the closure of the theological colleges (see paragraph 37 above).", "The Court also takes into account the visit by Mr Şevket Kazan, who was then the Minister of Justice, to a member of his party charged with incitement to hatred based on religious discrimination (see paragraph 38 above).", "130. The Court considers that, whatever meaning is ascribed to the term “jihad” used in most of the speeches mentioned above (whose primary meaning is holy war and the struggle to be waged until the total domination of Islam in society is achieved), there was ambiguity in the terminology used to refer to the method to be employed to gain political power. In all of these speeches the possibility was mentioned of resorting “legitimately” to force in order to overcome various obstacles Refah expected to meet in the political route by which it intended to gain and retain power.", "131. Furthermore, the Court endorses the following finding of the Chamber:", "“74. ...", "While it is true that [Refah’s] leaders did not, in government documents, call for the use of force and violence as a political weapon, they did not take prompt practical steps to distance themselves from those members of [Refah] who had publicly referred with approval to the possibility of using force against politicians who opposed them. Consequently, Refah’s leaders did not dispel the ambiguity of these statements about the possibility of having recourse to violent methods in order to gain power and retain it (see, mutatis mutandis, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, p. 2549, § 58).”", "Overall examination of “pressing social need”", "132. In making an overall assessment of the points it has just listed above in connection with its examination of the question whether there was a pressing social need for the interference in issue in the present case, the Court finds that the acts and speeches of Refah’s members and leaders cited by the Constitutional Court were imputable to the whole of the party, that those acts and speeches revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force in order to implement its policy and keep the system it envisaged in place. In view of the fact that these plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to Contracting States, may reasonably be considered to have met a “pressing social need”.", "(β) Proportionality of the measure complained of", "133. After considering the parties’ arguments, the Court sees no good reason to depart from the following considerations in the Chamber’s judgment:", "“82. ... The Court has previously held that the dissolution of a political party accompanied by a temporary ban prohibiting its leaders from exercising political responsibilities was a drastic measure and that measures of such severity might be applied only in the most serious cases (see the previously cited Socialist Party and Others v. Turkey judgment, p. 1258, § 51). In the present case it has just found that the interference in question met a ‘pressing social need’. It should also be noted that after [Refah’s] dissolution only five of its MPs (including the applicants) temporarily forfeited their parliamentary office and their role as leaders of a political party. The 152 remaining MPs continued to sit in Parliament and pursued their political careers normally. ... The Court considers in that connection that the nature and severity of the interference are also factors to be taken into account when assessing its proportionality (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 64, ECHR 1999-IV).”", "134. The Court also notes that the pecuniary damage alleged by the applicants was made up largely of a loss of earnings and is speculative in nature. In view of the low value of Refah’s assets, their transfer to the Treasury can have no bearing on the proportionality of the interference in issue. Moreover, the Court observes that the prohibition barring three of the applicants, Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, from engaging in certain types of political activity for a period of five years was temporary, and that, through their speeches and the stances they adopted in their capacity as the chairman and vice-chairmen of the party, they bear the main responsibility for Refah’s dissolution.", "It follows that the interference in issue in the present case cannot be regarded as disproportionate in relation to the aims pursued.", "4. The Court’s conclusion regarding Article 11 of the Convention", "135. Consequently, following a rigorous review to verify that there were convincing and compelling reasons justifying Refah’s dissolution and the temporary forfeiture of certain political rights imposed on the other applicants, the Court considers that those interferences met a “pressing social need” and were “proportionate to the aims pursued”. It follows that Refah’s dissolution may be regarded as “necessary in a democratic society” within the meaning of Article 11 § 2.", "136. Accordingly, there has been no violation of Article 11 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLES 9, 10, 14, 17 AND 18 OF THE CONVENTION", "137. The applicants further alleged the violation of Articles 9, 10, 14, 17 and 18 of the Convention. As their complaints concern the same facts as those examined under Article 11, the Court considers that it is not necessary to examine them separately.", "III. ALLEGED VIOLATION OF ARTICLES 1 AND 3 OFPROTOCOL No. 1", "138. The applicants further submitted that the consequences of Refah’s dissolution, namely the confiscation of its assets and their transfer to the Treasury, and the ban preventing its leaders from participating in elections, had entailed breaches of Articles 1 and 3 of Protocol No. 1.", "139. The Court notes that the measures complained of by the applicants were only secondary effects of Refah’s dissolution, which, as the Court has found, did not breach Article 11. Accordingly, there is no cause to examine separately the complaints in question." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The refusal of the application to register the PCN", "9. The first applicant is a political group which was refused registration as a political party in a judgment delivered by the Bucharest Court of Appeal on 28 August 1996. The second applicant is its chairman.", "10. On 23 March 1996 the PCN was founded at a national conference chaired by the second applicant, at which its constitution and political programme were adopted. The relevant parts of the constitution read as follows:", "“The PCN shall respect national sovereignty, the territorial integrity of the State, its legal order and the principles of democracy. None of its members shall defame the country and the nation, promote war and national, racial, class or religious hatred, encourage discrimination, territorial separatism or public violence, or engage in obscene and immoral activities.", "The PCN is a free association of citizens who support political pluralism, uphold the principles of a democratic law-based State and strive to defend their own interests without denying those of others.", "Aims", "Article 1 : The PCN shall express, represent and defend the political interests of the workers, without any distinction based on ethnic origin, sex, age, profession, belief or opinions.'Workers'means all those who earn their living by working, regardless of activity ...", "With a view to ensuring a constant increase in workers'living standards, the PCN shall act within the law, using any means lawfully available to all political parties, to gain political power in order to establish a humane and democratic society. ...", "Article 20 : The PCN is not the successor of the former Romanian Communist Party, with which it has no connection; it represents the continuation of the resistance against the Communist Party prior to 1989. Being founded by and composed of persons who were not members of the former Communist Party, the PCN emphasises that none of the qualities with which the former Communist Party was credited, or the criticisms that party aroused, should be attributed to it.”", "11. In its political programme, adopted on 23 March 1996, the PCN stated that its aims were to defend workers'interests and to adhere to the essence of communist doctrine, based on the following fundamental principles: non-exploitation of certain persons by others or by the State; social justice based on labour and proper qualitative competition; and genuine democracy capable of securing the rights of the majority through free elections in which all political tendencies should be allowed to take part. It deplored what it called the antisocial and anti-working - class direction in which Romanian society had moved since the overthrow of the previous regime in 1989, and the country's transformation into a “colony of the European and global neo-colonialist empires”. The programme also contained the following political ideas :", "“The thesis underlying all policy and all doctrine is that the main advantage in politics is number. Those who are greatest in number are always right, irrespective of the way they think or act, and this is constantly being borne out, as, for example, on 22 December 1989 when the anti-working - class, antisocial and antinational counter-revolution emerged victorious in several European countries.", "The starting-point of all workers'action has been the desire to change what is evil; in practice, only what is good has changed, and almost completely. What do we mean by good? ... During its years of socio-economic practice in the territory of former Dacia [ [1] ], socialism achieved goals for the masses – despite the errors, excesses, failings and abuses on the part of the former Communist Party bourgeoisie – which workers cannot abandon or forget: the highest material and spiritual living standards in history; the highest level of culture and civilisation in history ...; the broadest and most extensive democratic legal framework ...", "The PCN is a workers'revolutionary political group that acts in an organised, conscious manner within the constitutional framework to eradicate the effects of the counter-revolution and to resume building the most humane and democratic society ever known – socialism. Regardless of its position in relation to the other political forces, [that is, whether it is] involved in the exercise of power and the administration of the State, the PCN will strive to attain such goals as may ensure the protection of the interests of the masses.”", "12. On 4 April 1996 the second applicant, as the PCN's representative, applied to the Bucharest County Court to enter it in the special register for political parties.", "13. By a decision of 19 April 1996, the court refused the application as being ill-founded. The relevant passages of the reasoning of the decision read as follows:", "“In support of the application to register the party, a number of documents have been filed: a list of the party leaders, a list of its founder members, the constitution governing its organisation and functioning, its political programme, the lease for its headquarters, evidence of its financial resources and its constitutive instrument, namely the minutes of the national conference held on 23 March 1996.", "It appears from an examination of the documents in the file that the party's constitution, in the chapter setting out its aims, ... states that it strives to gain political power in order to establish a humane and democratic society.", "It therefore follows from its constitution and political programme that the party pursues the aim of establishing a humane State based on communist doctrine, which would imply that the constitutional and legal order in place since 1989 is inhumane and not founded on genuine democracy.", "The party is therefore in breach of Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989, which provides that'the aims of political parties must be based on respect for sovereignty, and that the means employed to achieve them must be in accordance with Romania's constitutional and legal order'. ”", "14. On 6 July 1994 the applicant appealed against that decision to the Bucharest Court of Appeal. In a judgment delivered on 28 August 1996, the Court of Appeal dismissed the appeal on the ground that the assessment made in the decision had been correct. It finalised the text of the judgment on 21 October 1996 and sent it to the Bucharest County Court to be archived. The second applicant states that he learned of the reasons for the judgment on 13 November 1996. The relevant paragraph of the reasoning reads as follows:", "“As to the final ground of appeal, concerning the merits of the case, the first-instance court was correct in considering the [PCN's] constitution to be in breach of Legislative Decree no. 8/1989 with regard to the country's constitutional and legal order. Accordingly, the Court dismisses the complaint as being ill-founded.”", "15. On 28 May 1997 the Procurator-General of Romania informed the second applicant that he could see no reason to lodge an application ( recurs în anulare ) to have the judgment of 28 August 1996 quashed.", "16. The second applicant lodged an application to set aside ( contestaţie în anulare ), which the Bucharest County Court dismissed as being out of time on 5 December 1997.", "B. The second applicant's subsequent publications", "17. After 1997 the second applicant continued to express his political opinions in the newspaper Pentru socialism (“For Socialism”), of which he was the editor. On 13 August 1998 he published an article entitled “The communist manifesto”, which proclaimed his attachment to communist doctrine and criticised both the direction taken by the Communist Party leaders before 1989 and the policy pursued by successive governments since then. A large number of articles which the second applicant published in the newspaper in 1998 and 1999 contained slogans such as “Workers of all countries, unite!”, “The struggle continues!” and “Long live socialism!”. In one article he stated that, once in power, he would “accept only those who accept[ed him]”.", "18. In 2000 the second applicant published a book, The anti-socialist, anti-working - class and antinational counter-revolution, in which he replied to about a hundred questions from a journalist. In December 2003 he sent the Court a copy of the book. In it he set out his political vision, outlining his commitment to communist doctrine and the working classes and describing Marx as the greatest political philosopher of all humanity; he also criticised both the authorities'gradual betrayal, in his view, of communist ideals prior to 1989 – while praising former President Ceausescu – and the policy pursued by those in power after that date. He stated that, unlike the pre-1989 communist regime, he was in favour of free, multi-party elections in which all the political forces could take part, except extremists and fascists, and voiced his support for a form of political competition based on respect for others and their political views. Among other things, he referred to the difficulties encountered since 1989 in finding sufficient members to register the PCN and to the fact that the party was not well known in Romania, particularly among those for whom it was primarily intended, the peasants and workers.", "19. Arguing that socialism had in the past been the subject of frequent “attacks” designed to destroy it, examples being the events in 1968 in Prague, 1978 in Poland and 1985 and 1993 in Russia, the second applicant stated in conclusion to his reply to a question from the journalist:", "“As long as there are still capitalist, imperialist and religious brutes in the world, whose main aim is to enslave others, the conditions for further internal and external activities against socialism will continue to exist, ... [socialism] being a fundamental idea and belief of the people; remember the endless succession of attacks against the forces of good in fairy tales ... These attacks will not cease until the hideous and parasitic farmyard fowls, who commit crimes in all places and at all times, have been destroyed.”", "20. He stated in the book that the political system would in time become structured according to social class, that the PCN sought to represent the interests of the peasants and workers, and that a democratic parliament should reflect the country's social structure, with the two classes in question holding the vast majority of seats according to their share of the population.", "21. Arguing that capitalism encouraged theft, the second applicant stated in the book that the masses, who despised wealth, would move away from the post-1989 political parties and, over about fifty years, towards the PCN.", "22. With regard to property, he stated that it was for the people to decide whether privatisation was beneficial and that “the rich” could enjoy possessions they had obtained by lawful means. As to the restitution of property that had passed into State ownership during the communist regime, the second applicant considered that property confiscated for political reasons should be returned, although entire buildings and factories should not, because the nationalisation measures carried out after 1947-48 had been acts of social justice." ]

[ "II. RELEVANT DOMESTIC LAW", "23. At the material time the relevant provisions of Legislative Decree no. 8/1989 on the registration and operation of political parties, which was published in the Official Gazette on 31 December 1989 and repealed by the Political Parties Act (Law no. 27 of 26 April 1996 ), read as follows:", "Article 1", "“Political parties may be freely founded in Romania, with the exception of fascist parties or those that spread ideas contrary to the constitutional and legal order. No other objection, whether based on race, religion, nationality, level of culture, sex or political views, may hinder the formation and operation of political parties ...”", "Article 2", "“...", "3. The aims of political parties and public-interest organisations shall be based on respect for the nation's sovereignty, independence and territorial integrity and for democracy, in order to ensure the exercise of citizens'rights and freedoms and to uphold the dignity of the Romanian nation.", "4. The means employed to achieve the aims of political parties and public-interest organisations shall be in accordance with Romania's constitutional and legal order.”", "Article 5", "“Political parties shall be registered with the Bucharest County Court, which shall give a decision within five days as to whether they have been lawfully constituted. An appeal against the decision of the Bucharest County Court shall lie to the Supreme Court of Justice ...”", "24. Article 37 § 2 of the Constitution provides:", "“ Any political parties or organisations which, through their aims or activities, campaign against political pluralism, the principles of the rule of law, or the sovereignty, integrity or independence of Romania, shall be unconstitutional ...”", "25. Section 3 of the National Security Act (Law no. 51/1991) provides:", "“The following shall constitute a threat to the national security of Romania : ... (h) the act of provoking, organising, carrying out or supporting, by whatever means, any totalitarian or extremist action inspired by communism, fascism, ... racism, anti-Semitism, revisionism or separatism that might jeopardise in any manner the unity and territorial integrity of Romania; and the act of encouraging activities that might undermine the rule of law.”", "Section 13 provides that, in cases referred to in section 3 above, the public prosecutor may allow certain measures to be taken, such as phone-tapping, in order to obtain further information about the acts in question.", "By section 19, the formation and organisation of intelligence networks capable of undermining national security is an offence punishable by two to seven years'imprisonment.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "26. The applicants complained that the domestic courts'refusal of their application to register the PCN as a political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention, which provides:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "...", "B. Whether the interference was justified", "...", "3. “Necessary in a democratic society”", "...", "(b) The Court's assessment", "44. The Court reiterates that, notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy.", "45. The Court considers that there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among other authorities, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). The fact that their activities form part of a collective exercise of the freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention (see United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 20-21, §§ 42-43).", "46. The Court has previously held that a political party may campaign for a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must in every respect be legal and democratic, and secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which does not comply with one or more of the rules of democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention's protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and [ Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98,] § 98 [, ECHR 2003-II]).", "47. Moreover, for the purpose of determining whether an interference is necessary in a democratic society, the adjective “necessary”, within the meaning of Article 11 § 2, implies the existence of a “pressing social need”.", "48. The Court reiterates that its examination of whether the refusal to register a political party met a “pressing social need” must concentrate on the following points: (i) whether there was plausible evidence that the risk to democracy was sufficiently imminent; (ii) whether the leaders'acts and speeches taken into consideration in the case under review were imputable to the political party concerned; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society”. Its overall examination of the above points must also take account of the historical context in which the refusal to register the party concerned took place (see Refah Partisi (the Welfare Party) and Others, cited above, § 104).", "49. The Court's task is not to take the place of the competent national authorities but rather to review under Article 11 the decisions they delivered pursuant to their power of appreciation. This does not mean that the Court's supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. It must look at the interference complained of in the light of the case as a whole in order to determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, Ahmed and Others v. the United Kingdom, judgment of 2 September 1998, Reports 1998-VI, pp. 2377-78, § 55, and Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, pp. 500-01, § 40).", "50. In the instant case the Court must assess whether the interference in issue, namely the refusal by the Bucharest Court of Appeal to register the PCN as a political party in a judgment of 28 August 1996, met a “pressing social need” and was “proportionate to the legitimate aims pursued”.", "51. The Court notes at the outset that the national courts based their refusal of the applicants'application solely on an assessment of whether the PCN's constitution and political programme complied with the provisions of Legislative Decree no. 8/1989; the PCN had not been politically active before applying for registration. It observes in this connection that neither the Bucharest County Court nor the Bucharest Court of Appeal based their respective decisions of 19 April 1996 and 28 August 1996 on any other document produced by the PCN or on any particular position taken by the second applicant or any other leader of the PCN. Like the national authorities, the Court will therefore take the PCN's political programme and constitution as a basis for assessing whether the interference in question was necessary (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 116, and United Communist Party of Turkey and Others, cited above, p. 25, § 51).", "52. In this connection, the Court cannot accede to the Government's request to extend the scope of its examination to the policy statements made by the second applicant, several years after the interference in issue, in the press articles published in 1998 and 1999 and the book The anti-socialist, anti-working - class and antinational counter-revolution published in 2000. It observes that it adopted a similar approach in a case in which political speeches made before the dissolution of the applicant party had not been taken into account by the domestic courts (see Dicle for the Democracy Party (DEP) v. Turkey, no. 25141/94, § 50, 10 December 2002). It cannot take the place of the domestic courts in assessing facts outside the scope of the case, the more so in the instant case as the facts referred to by the Government occurred after the interference in issue.", "In any event, the Court cannot find any statements in the second applicant's subsequent publications, despite the critical and sometimes hostile language used, that might reasonably be construed as a call for the use of violence for political ends or as a policy in breach of the rules of democracy. In this connection, the Court observes that, even in these unofficial documents aimed at potential supporters of the PCN, the second applicant stated that he was in favour of free, multi-party elections and a political system based on respect for others and their political opinions (see paragraph 18 above).", "53. The Court observes that in refusing the application to register the PCN, the Bucharest Court of Appeal endorsed, without elaborating on, the reasoning of the Bucharest County Court to the effect that the PCN was seeking to gain political power in order to establish a humane State founded on communist doctrine, which in the court's view implied that the applicants regarded the constitutional and legal order that had been in place since 1989 as inhumane and not based on genuine democracy.", "Accordingly, the domestic courts held that the PCN had infringed Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989. It appears from a combined reading of their decisions that the reproach made against the applicants was that the PCN's aims did not uphold national sovereignty and, in particular, that the means proposed for achieving them were incompatible with the constitutional and legal order in place in Romania. Accordingly, the Court's assessment of the necessity of the interference in issue will relate mainly to the reasons given by the domestic courts for refusing the applicants'application (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 25, § 52).", "54. Examining the PCN's constitution and political programme, the Court observes that these documents lay emphasis on upholding the country's national sovereignty, territorial integrity and legal and constitutional order, and on the principles of democracy, including political pluralism, universal suffrage and freedom to take part in politics. It further notes that they do not contain any passages that may be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles – an essential factor to be taken into consideration – or for the “dictatorship of the proletariat” (see Socialist Party of Turkey (STP) and Others v. Turkey, no. 26482/95, § 45, 12 November 2003, and, conversely, Communist Party of Germany v. Federal Republic of Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook I, p. 222).", "55. The Court notes that the PCN's political programme and constitution in fact contained passages criticising both the abuses committed before 1989 by the former Communist Party, from which it distanced itself – not least through its own name – and the policy pursued since 1989.", "The Court considers one of the principal characteristics of democracy to be the possibility it offers of addressing through dialogue, without recourse to violence, issues raised by different strands of political opinion, even when they are irksome or disturbing. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group that complies with fundamental democratic principles (see paragraph 46 above) solely because it has criticised the country's constitutional and legal order and sought a public debate in the political arena (see, mutatis mutandis, United Communist Party of Turkey and Others, cited above, p. 27, § 57). In the instant case the domestic courts did not show any way in which the PCN's programme and constitution were contrary to the country's constitutional and legal order and, in particular, to the fundamental principles of democracy.", "In this connection, the Court cannot accept the Government's argument that Romania cannot allow the emergence of a new communist party to form the subject of a democratic debate.", "56. Admittedly, the political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. A party's political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party's leaders and the positions they defend (see Refah Partisi (the Welfare Party) and Others, cited above, § 101).", "57. In the present case the PCN's programme could hardly have been belied by any practical action it took, since its application for registration was refused and it consequently did not even have time to take any action. It was thus penalised for conduct relating solely to the exercise of freedom of expression.", "58. The Court is also prepared to take into account the historical background to cases before it, in this instance Romania's experience of totalitarian communism prior to 1989. However, it observes that that context cannot by itself justify the need for the interference, especially as communist parties adhering to Marxist ideology exist in a number of countries that are signatories to the Convention.", "The Court accordingly observes that the criteria defining a “pressing social need” (see paragraph 48 above) have not been satisfied in the instant case, as the courts failed to establish that the applicants'political programme was incompatible with a “democratic society”, let alone that there was evidence of a sufficiently imminent risk to democracy.", "59. Nor is there any need to bring Article 17 into play as nothing in the constitution and programme of the PCN warrants the conclusion that it relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see United Communist Party of Turkey and Others, cited above, p. 27, § 60).", "60. Accordingly, a measure as drastic as the refusal of the applicants'application to register the PCN as a political party, before its activities had even started, is disproportionate to the aim pursued and consequently unnecessary in a democratic society.", "61. There has therefore been a violation of Article 11 of the Convention.", "..." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. Background information", "6. The Republican Party of Russia was created in November 1990 by consolidation of the Democratic Wing of the USSR Communist Party and its subsequent secession from that party.", "7. On 14 March 1991 the Ministry of Justice formally registered the public association “Republican Party of the Russian Federation ”.", "8. Following changes in domestic legislation, on 27 April 2002 a general conference of the public association decided on its reorganisation into a political party by the name of “Republican Party of Russia”.", "9. On 12 August 2002 the applicant was registered as a party by the Ministry of Justice.", "10. Its articles of association list among its aims the nomination of candidates for election to state and municipal bodies and participation in the activities of those bodies, the development of civil society in Russia and the promotion of the unity and territorial integrity of the country and of the peaceful coexistence of its multi-ethnic population.", "B. Refusal to amend the information about the applicant contained in the Unified State Register of Legal Entities", "11. On 17 December 2005 an extraordinary general conference of the applicant elected its management bodies. In particular, Mr Zubov was elected chairman of the Political Council and Mr Sheshenin chairman of the Executive Committee. In accordance with the articles of association they became ex officio representatives of the party. The general conference also decided to change the party ’ s address and to create several regional branches.", "12. On 26 December 2005 the applicant asked the Ministry of Justice to amend the information contained in the Unified State Register of Legal Entities. In particular, it asked that its new address and the names of its ex officio representatives be entered in the Register.", "13. On 16 January 2006 the Ministry of Justice refused to make the amendments because the party had not submitted documents showing that the general conference had been held in accordance with the law and with its articles of association.", "14. On 2 March 2006 the applicant re-submitted its request. It produced the minutes of the conferences of its regional branches at which delegates to the general conference had been nominated, the list of the delegates and the minutes of the general conference.", "15. On 4 April 2006 the Ministry of Justice refused for the second time to register the amendments. It found that the applicant had not submitted documents confirming the number of its members. Moreover, the minutes of the Irkutsk, Chelyabinsk and Sverdlovsk regional conferences did not include the lists of participants. The minutes of the Arkhangelsk and Yaroslavl regional conferences were flawed because they indicated that those conferences had been convened at the initiative of the Novosibirsk regional branch. The Vladimir regional conference had not actually been held. Some of the participants at the general conference were not members of the party or had not been elected delegates. Due to those and other omissions it was not possible to establish whether the regional conferences had been quorate and whether the general conference had been legitimate.", "16. The applicant challenged the refusal before a court. It argued that it was not required to submit documents confirming the number of its members. In any event, that information was already in the Ministry ’ s possession because the party had submitted it in its annual activity report in 2005. The Ministry of Justice was not empowered to verify whether the general conference and the regional conferences were legitimate. Domestic law required that such verification be conducted only before the registration of a new party or of amendments to the articles of association, which was not the case of the applicant. In any event, the general conference had been convened in accordance with domestic law and the articles of association. It had brought together 94 delegates from 51 regional branches. The delegates had been nominated at regional conferences held in compliance with the party ’ s internal rules. The law did not require the minutes of regional conferences to contain the list of participants. The minutes had indicated the total number of the members of the regional branches and the number of participants at the conferences. That information had been sufficient to establish that the conferences had been quorate. The applicant conceded that the minutes of the Arkhangelsk and Yaroslavl regional conferences contained typing errors, which, however, did not affect the outcome of the voting. The Ministry of Justice ’ s finding that the Vladimir regional conference had never been held had been refuted by the documents. The finding that some of the participants at the general conference had not been members of the party or had not been elected delegates was not supported by any documentary evidence. The applicant lastly submitted that officials of the regional departments of the Ministry of Justice who had attended some of the regional conferences had not noted any breaches of the substantive or procedural rules. The applicant claimed that the refusal to amend the Register violated its freedom of association and hindered its activities. In particular, the Ministry of Justice had refused to register three regional branches precisely because the Register did not contain the names of the applicant ’ s ex officio representatives.", "17. The Ministry of Justice maintained that the decision of 4 April 2006 had been lawful. The Ministry was not only entitled, but had a legal obligation to verify the information submitted by the applicant. The verification had revealed that the documents produced by the applicant had not met the legal requirements. In particular, the minutes of the regional conferences did not all contain the list of participants. Thirty-three regional conferences had been inquorate. The applicant had never submitted any information about its local branches and it was therefore not clear who had nominated delegates for the regional conferences and whose interests they had represented. The minutes of the Arkhangelsk and Yaroslavl regional conferences indicated that the conferences had been convened at the initiative of the Novosibirsk regional branch. Due to those omissions it had not been possible to establish whether the delegates to the general conference had been duly nominated. Moreover, the decision to convene the general conference had been taken on 1 December 2005, while some of the regional conferences had taken place in November 2005. As the general conference had been convened in breach of the procedural rules, it had been illegitimate.", "18. On 12 September 2006 the Taganskiy District Court of Moscow upheld the decision of 4 April 2006. It held that, under sections 15, 16, 20 and 38 of the Political Parties Act, the Ministry of Justice had been empowered to verify the information and documents submitted by the applicant before registering any amendments to the Register. The Ministry had found that the documents submitted did not meet the requirements established by law. The court had no reason to doubt its findings because they were corroborated by the case materials and had not been refuted by the applicant. The court held that the decision of 4 April 2006 had been lawful and had not violated the applicant ’ s rights under Article 11 of the Convention.", "19. In its appeal submissions the applicant claimed, in particular, that the Ministry of Justice ’ s requirement to submit the same documents as for the initial registration of a party or the registration of amendments to its articles of association had no basis in domestic law. Under the Political Parties Act amendments concerning a party ’ s address or the names of its ex officio representatives were to be registered on the basis of a written notification to the registration authority. The applicant also argued that the Ministry of Justice had no authority to verify the legitimacy of its general conference. It insisted that the general conference had been held in conformity with its articles of association and with domestic law.", "20. On 19 December 2006 the Moscow City Court upheld the judgment on appeal. It referred to section 32 § 7 of the Non-Profit Organisations Act and held as follows:", "“...A political party requesting to amend the information [contained in the Register] is to produce the same documents as required for registration of a party. The list of those documents is contained in section 16 of the Political Parties Act.", "[The applicant ’ s] argument that the extraordinary general conference of the party was organised and held in accordance with the law in force and with its articles of association aims at a different assessment of documents produced [by the applicant ] to [ the Ministry of Justice] for registration. At the same time, [the Ministry of Justice] and the [District] Court had reasons to conclude that the submitted documents contained information which did not meet the legal requirements. The [City] Court agrees with the [District] Court ’ s assessment of the evidence. ”", "C. Dissolution of the applicant", "21. In 2006, in a separate set of proceedings, the Ministry of Justice conducted an inspection of the applicant ’ s activities. It issued thirty-six warnings to the party ’ s regional branches. Seven regional branches were dissolved by courts at the Ministry ’ s request and the activities of the Moscow regional branch were suspended. On 28 September 2006 the Ministry prepared the inspection report mentioning that the applicant had 49 regional branches, of which 32 had more than 500 members, and that the total number of party members was 39,970.", "22. On 1 March 2007 the Ministry of Justice asked the Supreme Court of the Russian Federation to dissolve the applicant. It claimed that the party had fewer than 50,000 members and fewer than 45 regional branches with more than 500 members, in breach of the Political Parties Act.", "23. The applicant submitted that it met the requirements of the Political Parties Act because it had 58,166 members and had 44 registered regional branches with more than 500 members.", "24. On 23 March 2007 the Supreme Court of the Russian Federation ordered the dissolution of the applicant. It found that the Mari-El, Krasnoyarsk, Tyumen, Novosibirsk, Murmansk, and Vladimir regional branches had been dissolved by court decisions in 2006, therefore their members could not be taken into account. Eight regional branches had fewer than 500 members, in particular:", "– despite a warning issued by the Ministry, the Ingushetia regional branch did not submit documents showing the number of its members. According to the information in the Ministry of Justice ’ s possession, the branch had 152 members;", "– the applicant had submitted that the Kalmykiya regional branch had 508 members. However, an inspection had revealed that thirty-seven of them had never joined the party, four of them were simultaneously members of other regional branches, the names of three members appeared twice in the list, and eighteen members did not reside at the indicated addresses. Therefore, the branch had in fact only 468 members;", "– out of 516 members of the Krasnodar Regional branch eighteen had made a written declaration that they had never joined the party. Four members, while refusing to make a written statement, had made oral statements to that effect;", "– the Arkhangelsk regional branch had 514 members. However, seventeen of them were under eighteen years of age. Moreover, the party had not produced individual applications for membership in respect of 100 members;", "– 1,036 members of the Samara regional branch had been admitted to the party in breach of the articles of association. In particular, 791 members had been admitted by the branch ’ s political council elected at an illegitimate general conference. To support its conclusion that the general conference had been illegitimate the Supreme Court referred to the judgment of the Taganskiy District Court of Moscow of 12 September 2006 (see paragraph 18 above);", "– the Tambov regional branch had 541 members. However, the membership of 230 of them had not been confirmed. In particular, the party had not produced individual applications for membership in respect of 177 members, thirty-three members had no residence registration in the Tambov Region, four members had left the Tambov region, two members had been younger than eighteen at the time they had joined the party, three members had not signed their applications for membership, and thirty-three had declared that they had never joined the party;", "– the Tula Regional branch had 383 members;", "– the Komi-Permyatskiy regional branch had 154 members.", "25. The court held that it had no reason to doubt the information submitted by the Ministry. The applicant had never contested before the courts the information contained in the inspection report or the warnings issued by the Ministry. The court further found that the Ministry had not submitted any evidence in support of their conclusions that the Karachaevo-Cherkesskiy, Altay and St Petersburg regional branches had fewer than 500 members, therefore the court accepted the number of members suggested by the applicant. The court also accepted that the party had several unregistered branches. However, their members could not be taken into account for establishing the total number of party members. The court concluded that on 1 January 2006 the applicant had 43,942 members, and 37 regional branches with more than 500 members. Thus, the applicant did not meet the requirements established by law and was subject to dissolution.", "26. The applicant appealed. It submitted that the Ministry ’ s submissions had not been supported by any documents. Nor had the Ministry indicated the names of the people who, in its opinion, had been admitted to the party in breach of domestic law and the party ’ s articles of association. The first-instance court had refused to admit evidence submitted by the applicant, namely individual applications for membership and other documents confirming the number of party members. The court had not taken into account 8,819 members living in the regions where the branches were not registered, although they had been admitted to the party at the federal level and were members of the party itself and not members of its unregistered regional branches. The Ministry had conducted an inspection in March 2006; it had never verified the number of the applicant ’ s members as at 1 January 2006. Moreover, its seven regional branches had been dissolved later in 2006, therefore on 1 January 2006 they had still been functioning and the applicant had had the required number of regional branches. Lastly, as domestic law did not establish the inspection procedure, the inspections had been arbitrary.", "27. On 31 May 2007 the Appellate Collegium of the Supreme Court upheld the judgment of 23 March 2007 on appeal. It found that the findings of the first-instance court had been based on sufficient evidence, namely the inspection reports compiled by the Ministry of Justice and its regional departments. The court had taken into account the number of the party ’ s members as at 1 January 2006. Individual applications submitted by the party after that date could not be taken into account because they could have been written after 1 January 2006 and backdated. Moreover, the applicant had not challenged the inspection report or the warnings issued by the Ministry. It was accordingly barred from contesting before the Supreme Court the facts mentioned in the report and in the warnings. In any event, even according to the party ’ s submissions it had only 44 regional branches with more than 500 members instead of 45, which was in itself a sufficient ground for dissolution." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Legal provisions on political parties", "28. The status and activities of political parties are governed by the Political Parties Act (Federal Law no. 95-FZ of 11 July 2001), the Non-Profit Organisations Act (Federal law No. 7-FZ of 12 January 199 6) and the Registration of Legal Entities Act ( Federal Law no. 129-FZ of 8 August 2001 ).", "1. Requirements of minimum membership and regional representation", "29. Membership of a political party shall be voluntary and individual. Citizens of the Russian Federation who have attained the age of eighteen may be members of a political party. Foreign citizens, stateless persons, and Russian nationals who have been declared incapable by a judicial decision may not be members of a political party. Admission to membership of a political party is decided upon on the basis of a written application by the Russian Federation citizen, in accordance with the procedure set out in the articles of association. A Russian Federation citizen may hold membership of only one political party at once. A member of a political party may be registered only in one regional branch in the region of his permanent or predominant residence (section 23 §§ 1, 2, 3 and 6 of the Political Parties Act).", "30. The Political Parties Act, adopted on 11 July 2001, introduced the requirements of minimum membership and regional representation for political parties. Until 20 December 2004 section 3 § 2 of the Political Parties Act required that a political party should have no fewer than ten thousand members and should have regional branches with no fewer than one hundred members in more than one half of Russia ’ s regions. If those conditions were fulfilled, it was also allowed to have branches in the remaining regions provided that each branch had no fewer than fifty members.", "31. On 30 October 2004 a group of deputies of the State Duma proposed amendments to section 3 § 2 of the Political Parties Act. In particular, they proposed increasing the minimum membership of a political party to fifty thousand members and the minimum membership of a regional branch to five hundred members. An explanatory note appended to the draft law provided the following justification for the amendments :", "“The proposed draft Federal law is a follow-up to the reform of the political system started in 2001 and it aims at strengthening the political parties and involving a wider range of citizens in the political life of the society and the State.”", "32. The State Duma ’ s Committee on Public Associations and Religious Organisations recommended that the amendments be adopted. The recommendation reads as follows:", "“The subject of the proposed Draft law is extremely important and pertinent.", "The experience of [political] party development in recent years has revealed that the political system in Russia needs perfection. The state and development of the party system have a major influence on the effective functioning of the legislative and executive powers whose mission is to protect citizens ’ rights and create favourable conditions for the development of the country.", "This is the rationale of the political reform proposed by the President of the Russian Federation, which advocates as one of its main goals the enhancement of the role and prestige of political parties in contemporary Russia.", "Acting as the nexus between civil society and the authorities and participating in parliamentary elections, large and authoritative political parties with firm political views, supported by a large number of voters, reinforce the structure and stability of the party system.", "This [Draft] law proposes increasing the minimum membership of a party from ten thousand ( under the Law now in force) to fifty thousand members and, for the regional branches, from one hundred to five hundred members. This is mainly justified by the consideration that the parliamentary, and consequently democratic, system cannot function without strong parties.", "Many small parties, the so - called quasi parties, having virtually no political weight or influence on the voters take part in the elections and enjoy various advantages. During the election campaign they receive financing from the State budget, have access to the media and are allocated free airtime on television. And after the election they disappear from the political scene.", "It is enough to note that out of forty-four parties and political alliances registered at the moment only three parties and one political alliance have seats in the State Duma. Only three parties have passed the 3% threshold, while the others have obtained less than 1% of the votes. This situation places an excessive burden on the budget and is at variance with the principle of efficient and careful spending of public funds provided for in Article 34 of the Budget Code of the Russian Federation.", "The dispersal of voters between such [small] parties results in the instability of the political system which we are witnessing today in our country.", "On the whole, the Draft law aims at streamlining the existing political system and creating effective, large-scale political parties having stable branches in the regions, expressing the genuine interests of substantial groups of voters and capable of defending them in the present conditions of democratic transformations in Russia.", "In view of the above, the Committee considers it necessary to support the proposed Draft law.”", "33. On 20 December 2004 section 3 § 2 was amended. The amended section 3 § 2 required that a political party should have no fewer than fifty thousand members and should have regional branches with no fewer than five hundred members in more than one half of Russia ’ s regions. It was also allowed to have branches in the remaining regions provided that each branch had no fewer than two hundred and fifty members.", "34. The political parties were required to bring the number of their members into compliance with the amended section 3 § 2 by 1 January 2006. If a party had not complied with that requirement it had to reorganise itself into a public association within a year, failing which it would be dissolved (section 2 §§ 1 and 4 of the Amending Act, Federal Law no. 168-FZ of 20 December 2004).", "35. On 1 January 2007 the Ministry of Justice announced that only seventeen political parties out of forty-eight registered as at February 2004 now met the requirements of minimum membership and regional representation. Twelve political parties were dissolved by the Supreme Court in 2007, three political parties reorganised themselves into public associations, while several more political parties merged with bigger parties. Fifteen political parties remained registered by the end of 2007 and were eligible to participate in the 2 December 2007 elections to the State Duma.", "36. On 5 November 2008 the President, in his address to the Federation Council, called for the development of democracy, in particular, by decreasing the minimum membership requirement for political parties.", "37. On 5 December 2009 the President proposed amending section 3 § 2 of the Political Parties Act by providing for a gradual decrease in the minimum membership requirement. The explanatory note contained the following justification for the proposed amendments:", "“The Draft law aims at giving effect to the President ’ s address to the Federation Council of the Federal Assembly of the Russian Federation of 5 November 2008, concerning the necessity gradually to decrease the minimum membership of political parties required for their registration and further functioning, as well as to introduce the requirement of rotation for [management bodies] of political parties. ”", "38. The State Duma ’ s Committee on Constitutional Legislation and State Development recommended that the proposed amendments be adopted. The relevant part of its recommendation reads as follows:", "“ The Draft law proposes a gradual decrease in the [minimum] membership of political parties required for their establishment, registration and further functioning. Its aim is to give effect to the measures proposed by the President of the Russian Federation in his address to the Federation Council of the Russian Federation of 5 November 2008, with a view to increasing the level and quality of people ’ s representation in the government.”", "39. On 28 April 2009 section 3 § 2 was amended. It now reads as follows:", "“ 2. ... a political party shall:", "before 1 January 2010 – have no fewer than fifty thousand members, and regional branches with no fewer than five hundred members in more than one half of Russian regions ... It may also have branches in the remaining regions provided that each branch has no fewer than two hundred and fifty members ...", "from 1 January 2010 to 1 January 201 2 - have no fewer than forty-five thousand members, and regional branches with no fewer than four hundred and fifty members in more than one half of Russian regions ... It may also have branches in the remaining regions provided that each branch has no fewer than two hundred members ...", "from 1 January 201 2 - have no fewer than forty thousand members, and regional branches with no fewer than four hundred members in more than one half of Russian regions ... It may also have branches in the remaining regions provided that each branch has no fewer than one hundred and fifty members ... ”", "2. State registration of political parties", "(a) Registration of Legal Entities Act", "40. In accordance with the Registration of Legal Entities Act, all legal entities, including political parties, must be registered in the Unified State Register of Legal Entities. The Unified State Register of Legal Entities must contain, inter alia, the following information about each legal entity: its address and the names of its ex officio representatives. The legal entity must notify the registration authority of any change in that information (section 5 §§ 1 and 5).", "41. Section 12 of the Registration of Legal Entities Act contains a list of documents to be submitted for the initial registration of a legal entity. Its section 17 § 1 contains a list of documents to be submitted for the registration of amendments to the legal entity ’ s articles of association. Paragraph 2 of that section provides that to register changes in other information on the legal entity (such as a change of address or ex officio representatives), the legal entity must submit a written notification to the registration authority. The notification must contain a declaration confirming that the information submitted is authentic and satisfies the requirements established by law. For that purpose a standard notification form was to be designed by the Government.", "(b) Non-Profit Organisations Act", "42. The Non- Profit Organisations Act also contains a list of documents to be submitted for the initial registration of a non-profit organisation (section 13.1 § 4) and the registration of amendments to its articles of association (section 23). The Act also provides that a non-profit organisation must notify the registration authority about any change concerning its address or its ex officio representatives and submit confirming documents. The procedures and time-limits are the same as for the initial registration of a non-profit organisation. The list of documents to be submitted is determined by the competent executive authority (section 32 § 7, added on 10 January 2006 and in force from 16 April 2006). The competent executive authority may refuse registration if the documents submitted do not comply with statutory requirements (section 23.1 § 1).", "(c) Political Parties Act", "43. The Political Parties Act provides that political parties must be registered in the Unified State Register of Legal Entities in accordance with the special registration procedure established by that Act (section 1 5 § 1). Amendments to the Register are made pursuant to the decision of a competent executive authority authorising registration of information about the establishment, reorganisation or dissolution of a political party or its regional branches or of other information specified by law (section 15 § 2). Before registering a political party, the competent registration authority must verify whether the documents submitted for registration satisfy the requirements of the Political Parties Act. The Register must be amended within five days from the date of the authorisation issued by the registration authority (section 1 5 § 5).", "44. Section 16 § 1 of the Political Parties Act contains an exhaustive list of documents to be submitted for the registration of a political party established by the founding congress: (a) an application for registration; (b) the party ’ s articles of association; (c) its political programme; (d) copies of decisions taken by the founding congress, in particular those concerning the establishment of the political party and its regional branches, the adoption of its articles of association and its programme and the election of its management bodies, and containing information about the delegates present and the results of the votes; ( e ) a document confirming payment of the registration fee; ( f ) information about the party ’ s official address; ( g ) a copy of the publication announcing the time and place of the founding congress, and ( h ) copies of the minutes of regional conferences held in more than one half of Russia ’ s regions, mentioning the number of members of each regional branch. Paragraph 2 of the same section prohibits State officials from requiring the submission of any other documents. The documents listed above must be submitted to the registration authority no later than six months after the founding congress (section 15 § 3).", "45. The registration authority may refuse registration if the party has not submitted all necessary documents or if the information contained in those documents does not meet the requirements established by law (section 20 § 1).", "46. A political party must notify the registration authority, within three days, of any change in the information contained in the Unified State Register of Legal Entities, including any change in its address or its ex officio representatives. The registration authority amends the Register within one day of receipt of the notification (section 27 § 3 )", "3. Internal organisation of a political party", "47. A political party ’ s articles of association must establish, among other things, the procedure for the election of its management bodies (section 21 § 2 of the Political Parties Act). Management bodies of a political party must be re-elected at least every four years (section 24 § 3). Management bodies must be elected by a secrete vote at a general conference assembling delegates from regional branches established in more than one half of Russia ’ s regions. The election must be conducted in accordance with the procedure established by the party ’ s articles of association and the decision must be taken by a majority of those present and voting (section 25 §§ 1, 4 and 6).", "4. Participation in elections", "48. Until 14 July 2003 candidates in elections to State bodies could be nominated by political parties, electoral blocks or by self-nomination. Since legislative amendments introduced on 11 July 2001 entered into force on 14 July 2003, candidates in elections to State bodies may be nominated by political parties only (section 36 § 1 of the Political Parties Act as in force from 14 July 2003 ).", "49. A political party wishing to participate in elections to the State Duma must submit its list of candidates to the electoral commission. It must also submit a certain number of signatures of support. Parties who currently have seats in the State Duma are absolved from the requirement to submit signatures of support. Until 3 June 2009 a political party had to submit signatures from no fewer that 200,000 enfranchised citizens domiciled in at least twenty Russian regions. The legal provision currently in force requires a political party to submit signatures from no fewer than 1 5 0,000 enfranchised citizens domiciled in more than one half of Russian regions. The number of signatures required will be decreased to 120,000 after the parliamentary elections of December 2011 (section 39 of the State Duma Elections Act (Federal Law no. 51-FZ of 18 May 2005) ).", "50. Until 2005 the 450 seats in the State Duma were distributed between those political parties whose electoral lists obtained more than 5% of the votes cast. The State Duma Elections Act of 18 May 2005 increased the electoral threshold to 7% (section 82 § 7 of the State Duma Elections Act ). In accordance with recent amendments to the State Duma Elections Act introduced on 12 May 2009, a political party whose electoral list wins between 6 % and 7% of the votes cast receives two seats in the State Duma, while a party which wins between 5% and 6% of the votes cast receives one seat (section 82.1 of the State Duma Elections Act).", "5. Public financing of political parties", "51. Political parties which take part in elections and obtain more that 3% of the votes cast are entitled to receive public financing to reimburse their electoral expenses. The amount of public financing received by each party is proportionate to the number of votes obtained by it (section 33 §§ 1, 5 and 6 of the Political Parties Act).", "6. State control over political parties", "52. Once a year a political party must submit to the competent authorities a report on its activities, indicating, in particular, the number of members of each of its regional branches (section 27 § 1 (b)).", "53. The competent authorities monitor compliance by political parties and their regional and other structural branches with Russian laws, as well as the compatibility of political parties ’ activities with the regulations, aims and purposes set out in their articles of association. The authorities concerned have the right to study, on an annual basis, the documents of political parties and their regional branches confirming the existence of regional branches and the number of their members, and to issue warnings to political parties and their regional branches if they pursue activities incompatible with their articles of association. The party or regional branch may challenge such warnings before a court. The authorities have the right to apply to a court for the suspension of the activities or the dissolution of a political party or its regional branch (section 38 § 1).", "54. A political party may be dissolved by the Supreme Court of the Russian Federation if it does not comply with the minimum membership requirement or the requirement to have regional branches in more than one half of Russian regions (section 41 § 3).", "B. Case-law of the Constitutional Court of the Russian Federation", "55. On 1 February 2005 the Constitutional Court delivered its Ruling no. 1-P in a case lodged by the Baltic Republican Party, a regional party which was dissolved because it did not satisfy the requirements of minimum membership and regional representation. In its application to the Constitutional Court it complained that the above requirements under section 3 § 2 of the Political Parties Act were incompatible with the Constitution. The Constitutional Court declared that section 3 § 2 as in force until 20 December 2004 was compatible with the Constitution. It held as follows:", "“ 3. The Constitution of the Russian Federation provides for the multiparty system (Article 13 § 3) and for the right to freedom of association and freedom of activities of public associations (Article 30 § 1) ... It does not, however, specify the territorial level – all-Russian, interregional, regional or local – on which political parties may be founded. Similarly, it does not contain an explicit ban on the creation of regional parties. Accordingly, the requirement in section 3 § 2 of [the Political Parties Act] that political parties may be created and operated only on the federal ( all-Russian) level is a limitation of the constitutional right to freedom of association in political parties. Such limitations are permissible only if they are necessary in order to protect constitutionally guaranteed values (Article 55 § 4 of the Constitution of the Russian Federation ).", "3.1. ... [The Political Parties Act] guarantees the right to freedom of association in political parties (section 2) and provides that political parties are established for the purpose of ensuring participation by Russian citizens in the political life of their society. Their mission is to form and articulate citizens ’ political will, to take part in public and political actions, elections and referenda, as well as to represent citizens ’ interests in State and municipal bodies (section 3 § 1). According to the substance of [the Political Parties Act ], political parties are created to ensure Russian citizens ’ participation in the political life of the entire Russian Federation rather than in one of its parts. Their vocation is to form the political will of the multinational Russian people as a whole and to articulate nationwide interests first and foremost. Their aims should not be associated with the interests of certain regions only. At the same time, when carrying out their activities directly in the regions, political parties must combine nationwide and regional interests ...", "The federal legislator ... made the acquisition (and retention) of the status of a political party conditional, firstly, on a public association expressing the interests of a considerable number of citizens irrespective of their region of residence and, secondly, on its carrying out activities in the entire territory of the Russian Federation or most of it. Such structuring of the political scene is aimed at preventing the division of the political forces and the emergence of numerous artificial small parties (especially during electoral campaigns) created for a short duration and therefore incapable of fulfilling their mission ... in the country ’ s political system.", "3.2. ... In the contemporary conditions where Russian society has not yet acquired solid experience of democratic existence and is faced with serious challenges from separatist, nationalist and terrorist forces, the creation of regional political parties – which would inevitably be interested in vindicating mainly their own purely regional or local interests – might result in a breach of the territorial integrity and unity of the political system and undermine the federative structure of the country.", "The legal line between regional political parties and political parties based in fact on ethnic or religious affiliation would be blurred. Such parties ... would inevitably strive to assert mainly the rights of their respective ethnic and religious communities, which at the present stage of historic development would distort the process of forming and articulating the political will of the multinational people which is the bearer of sovereignty and the only source of power in the Russian Federation.", "Moreover, taking into account the complex [federal] structure of the Russian Federation, the establishment of regional and local political parties in each region of the Federation might lead to the rise of numerous regional party systems. This might turn the emerging party system ... into a destabilising factor for the developing Russian democracy, popular sovereignty, federalism and the unity of the country, and weaken the constitutional protection of people ’ s rights and freedoms, including the right to freedom of association in political parties and the equal right of all citizens to establish a political party and participate in its activities in the entire territory of the Russian Federation.", "3.3. Thus, the requirement contained in [the Political Parties Act] that the status of a political party may be acquired only by nationwide (all-Russian) public associations pursues such constitutionally protected aims as the creation of a real multiparty system, the legal institutionalisation of political parties in order to assist the development of the civil society, and ... the formation of large, nationwide political parties. This requirement is also necessary in the contemporary historical conditions of developing democracy and rule of law in the Russian Federation for the purpose of protecting constitutional values and, above all, securing the unity of the country. The above limitation is temporary in character and must be abolished as soon as the circumstances justifying it become different.", "4. Although it provides for a multiparty system and guarantees the right to freedom of association in political parties and the freedom of their activities, the Constitution of the Russian Federation does not set any requirements concerning the number of parties, or any membership requirements. Nor does it prohibit establishing a minimum membership requirement for political parties. It is the role of the federal lawmaker to establish those requirements in such a way that, on the one hand, the [required minimum] membership and territorial scale of activities of political parties are not excessive and do not encroach on the very essence ... of the citizens ’ right to freedom of association and, on the other hand, [the political parties] are capable of fulfilling their aims and mission as nationwide (all-Russian) political parties. In other words, the lawmaker must be guided by the criteria of reasonable sufficiency ensuing from the principle of proportionality.", "When deciding on the minimum membership and the territorial scale of the activities of political parties the lawmaker has a wide discretion, taking into account that this issue is to a considerable degree based on political expediency. This follows from the fact that there exist different solutions to the issue in the legislation of other countries (the minimum membership requirement for political parties is considerably higher or lower than that contained in section 3 of [the Political Parties Act]) ...", "Defining the minimum-membership requirement for political parties in [the Political Parties Act], the lawmaker apparently proceeded from the necessity for a political party to have considerable support in society. Such support is required to fulfil the main mission of a political party in a democratic society, namely forming and articulating the political will of the people. The requirements such as contained in section 3 § 2 of [the Political Parties Act] [as in force until 20 December 2004] are not in themselves incompatible with the Constitution of the Russian Federation. These quantitative requirements might become incompatible with the Constitution if their enforcement results in the practical impossibility for the citizens to exercise their constitutional right to freedom of association in political parties, for example if, in breach of the constitutional principle of the multiparty system, they permit the establishment of one party only.", "5. The principle of political pluralism guaranteed by Article 13 of the Constitution of the Russian Federation may be implemented not only through a multiparty system and establishment and the activities of political parties with various ideologies. Therefore the forfeiture by interregional, regional and local public associations ... of the right to be called a political party does not mean that such associations are deprived of the right to participate in the political life of society at the regional and local levels. Nor have their members been deprived of the right to freedom of association.", "... public associations have the majority of the rights guaranteed to political parties ... The provision of [the Political Parties Act] that a political party is the only kind of public association that may nominate candidates in elections to State bodies (section 6 § 1) does not mean that other public associations, including regional and local ones, ... are deprived of the right to nominate candidates for elections to municipal bodies or the right to initiate regional or local referenda ...", "6. It follows from the above that, taking into account the historical conditions of development of the Russian Federation as a democratic and federative State governed by the rule of law, sections 3 § 2 and 47 § 6 of [the Political Parties Act] setting out the requirements for political parties and providing for the forfeiture by interregional, regional and local public associations of the status of political parties ... cannot be considered as imposing excessive limitations on the right to freedom of association. The above requirements do not prevent citizens of the Russian Federation from exercising their constitutional right to freedom of association by creating all-Russian political parties or joining them, or from defending their interests and achieving their collective goals in the political sphere at the interregional, regional and local levels by creating public associations ... and joining them ... ”", "56. On 16 July 2007 the Constitutional Court delivered Ruling no. 11-P in a case lodged by the Russian Communist Labour Party in which section 3 § 2, as amended on 20 December 2004, was challenged. The Constitutional Court declared that the minimum membership requirement contained in that section was compatible with the Constitution. It held as follows:", "“3.1... [The aim of the minimum membership requirement] is to promote the consolidation process, to create prerequisites for the establishment of large political parties voicing the real interests of the social strata, and to secure fair and equal competition between political parties during elections to the State Duma.", "The Federal Law of 18 May 2005 [the State Duma Elections Act] reformed the electoral system ... In accordance with that law all 450 members of the State Duma are to be elected from electoral lists submitted by political parties. The seats in the State Duma are distributed between the political parties which pass the threshold [of 7%] in terms of the number of votes cast for their respective electoral lists. The introduction of the threshold ... prevents excessive parliamentary fragmentation and thus ensures normal functioning of the parliament and buttresses the stability of the legislature and the constitutional foundations in general...", "[As a result of the reform] political parties become the only collective actors of the electoral process...", "The reform of the electoral system requires that the legal basis for the functioning of the multiparty system be adjusted so that the party system is capable of reconciling the interests and needs of society as a whole and of its various social and regional strata and groups, and of representing them adequately in the State Duma. The State Duma is an organised form of representation of the will and interests of the multiethnic population of the Russian Federation. That will and those interests can be expressed only by large, well-structured political parties.", "This is one of the reasons for changing the requirements imposed on political parties, including the minimum membership requirement for parties and their regional branches. These requirements are dictated by the characteristics proper to each stage of development of the party political system. They do not create insurmountable obstacles for the establishment and activities of political parties representing various political opinions, are not directed against any ideology and do not prevent discussion of various political programmes. The State guarantees equality of political parties before the law irrespective of the ideology, aims and purposes set out in their articles of association.", "3.2. ... when setting out the minimum membership requirements for political parties the federal legislator must take care, on the one hand, that those requirements are not excessive and do not impair the very essence of the right to freedom of association, and must ensure, on the other hand, that the political parties are able to pursue the aims and purposes set out in their articles of association exclusively as national (all-Russian) political parties. The national legislature must be guided by the criteria of reasonable sufficiency and proportionality.", "... the quantitative requirements will be incompatible with the Constitution only if the constitutional right to associate in political parties becomes illusory as a result of their application...", "...the federal legislature is entitled to set out membership requirements for political parties in the light of current historical conditions in the Russian Federation. Those requirements can be changed in one way or the other because they are not arbitrary but objectively justified by the ... aims in the sphere of development of the political system and maintenance of its compatibility with the basic constitutional foundations of the Russian Federation. They do not abolish, diminish or disproportionately restrict the citizens ’ constitutional right to associate in political parties.", "3.3. ... Political parties are created to ensure the involvement of citizens of the Russian Federation in the political life of Russian society by means of forming and expressing their political will, participating in public and political activities, elections and referenda, and representing the citizens ’ interests in State and municipal bodies. Therefore, the legislator rightfully determined [the minimum membership ] by reference to a political party ’ s real ability to represent the interests of an important portion of the population and to accomplish its public functions...", "The [minimum membership] requirements... are not discriminatory because they do not prevent the emergence of diverse political programmes, they are applied in an equal measure to all public associations portraying themselves as political parties, irrespective of the ideology, aims and purposes set out in their articles of association, and they do not impair the very essence of the citizens ’ right to freedom of association. Their application in practice shows that the constitutional right to associate in political parties remains real... (according to information from [the Ministry of Justice], on 1 January 2007 seventeen political parties out of thirty-three had confirmed their compliance with the new legal requirements, three political parties had decided on a voluntary basis to reorganise themselves into public associations...).", "The members of political parties which do not comply with the legal requirements established by the Political Parties Act have a choice ... between increasing the number of members of their party to reach the required minimum, reorganising their party into a public association..., founding a new party or joining another [existing] political party...”", "III. RELEVANT INTERNATIONAL MATERIALS", "A. Guidelines by the Venice Commission", "57. The Guidelines on prohibition and dissolution of political parties and analogous measures (Doc. CDL-INF(2000)1), adopted by the European Commission for Democracy through Law (“the Venice Commission ”) on 10 January 2000, read as follows:", "“ The Venice Commission,", "...", "Has adopted the following guidelines:", "1. States should recognise that everyone has the right to associate freely in political parties. This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers. The requirement to register political parties will not in itself be considered to be in violation of this right.", "...", "3. Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution.", "...", "5. The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger.", "6. Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means.", "7. The prohibition or dissolution of a political party should be decided by the Constitutional court or other appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair trial. ”", "58. The Venice Commission made the following recommendations in its Guidelines and explanatory report on legislation on political parties: some specific issues (Doc. CDL-AD(2004)007rev of 15 April 2004) :", "“ ...", "B. Registration as a necessary step for recognition of an association as a political party, for a party ’ s participation in general elections or for public financing of a party does not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. Any requirements in relation to registration, however, must be such as are ‘ necessary in a democratic society ’ and proportionate to the objective sought to be achieved by the measures in question. Countries applying registration procedures to political parties should refrain from imposing excessive requirements for territorial representation of political parties as well as for minimum membership. The democratic or non-democratic character of the party organisation should not in principle be a ground for denying registration of a political party. Registration of political parties should be denied only in cases clearly indicated in the Guidelines on prohibition of political parties and analogous measures, i.e. when the use of violence is advocated or used as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a peaceful change of the Constitution is advocated should not be sufficient for denial of registration.", "C. Any activity requirements for political parties, as a prerequisite for maintaining the status as a political party and their control and supervision, have to be assessed by the same yardstick of what is ‘ necessary in a democratic society ’. Public authorities should refrain from any political or other excessive control over activities of political parties, such as membership, number and frequency of party congresses and meetings, operation of territorial branches and subdivisions.", "D. State authorities should remain neutral in dealing with the process of establishment, registration (where applied) and activities of political parties and refrain from any measures that could privilege some political forces and discriminate others. All political parties should be given equal opportunities to participate in elections.", "E. Any interference of public authorities with the activities of political parties, such as, for example, denial of registration, loss of the status of a political party if a given party has not succeeded in obtaining representation in the legislative bodies (where applied), should be motivated, and legislation should provide for an opportunity for the party to challenge such decision or action in a court of law.", "F. Although such concern as the unity of the country can be taken into consideration, Member States should not impose restrictions which are not “necessary in a democratic society” on the establishment and activities of political unions and associations on regional and local levels.", "G. When national legislation provides that parties lose their status of a political party if they do not succeed to take part in elections or to obtain representation in legislative bodies, they should be allowed to continue their existence and activities under the general law on associations.", "...", "a. Registration of political parties", "10. The already mentioned study on the establishment, organisation and activities of political parties conducted in 2003 by the Sub-Commission on Democratic Institutions has shown that many countries view registration as a necessary step for recognition of an association as a political party, for participation in general elections or for public financing. This practice – as the Venice Commission has stated before in its Guidelines on Prohibition and Dissolution of Political Parties – even if it were regarded as a restriction of the right to freedom of association and freedom of expression, would not per se amount to a violation of rights protected under Articles 11 and 10 of the European Convention on Human Rights. The requirements for registration, however, differ from one country to another. Registration may be considered as a measure to inform the authorities about the establishment of the party as well as about its intention to participate in elections and, as a consequence, benefit from advantages given to political parties as a specific type of association. Far-reaching requirements, however, can raise the threshold for registration to an unreasonable level, which may be inconsistent with the Convention. Any provisions in relation to registration must be such as are necessary in a democratic society and proportionate to the object sought to be achieved by the measures in question.", "b. Activity requirements for political parties and their control and supervision", "11. Similar caution must be applied when it comes to activity requirements for political parties as a prerequisite for maintaining their status as a political party and their control and supervision. Far-reaching autonomy of political parties is a cornerstone of the freedoms of assembly and association and the freedom of expression as protected by the European Convention on Human Rights. As the European Court of Human Rights has stated, the Convention requires that interference with the exercise of these rights must be assessed by the yardstick of what is ‘ necessary in a democratic society ’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘ democratic society ’. In particular, control over the statute or charter of a party should be primarily internal, i.e. should be exercised by the members of the party. As regards external control, the members of a party should have access to a court in case they consider that a decision of a party organ violates its statute. In general, judicial control over the parties should be preferred over executive control.", "12. Another important aspect is that of equal treatment of parties by public authorities. In the case of registration procedure (if it is foreseen by national legislation) the State should proceed carefully in order to avoid any possible discrimination of political forces which might be considered as representing an opposition to the ruling party. In any case, clear and simple procedures should exist to challenge any decision and/or act of any registration authority in a court of law.", "...", "d. Political parties and elections", "16. The main objective of political parties is participation in the public life of their country. Elections are essential for the fulfilment of this task; therefore the principle of equality between parties is of utmost importance. In recent years some new democracies claim that the stability of government and the good functioning of parliament can be achieved through limiting the number of parties participating in elections. This suggestion seems to be in contradiction with European standards applicable to electoral process.", "...", "18. In recent years the role of a multitude of political parties as associations expressing the will of many different parts of society is being reconsidered in a positive way.", "“ Preventing an excessive number of parties through the electoral system would seem to be the most effective and least objectionable method as far as political rights are concerned. The general trend is to avoid restricting the number of parties by tinkering with the terms and conditions governing registration, because refusal to register a party is often a convenient way for the authorities to get rid of a competitor who is irksome rather than insignificant”[CDL-EL(2002)1, ch. II.4.1].", "19. In some Member States parties can lose their status of “political party” if they do not have any candidates elected in national elections. If the provisions of Articles 10 and 11 are to be applied with due regard to what is ‘ necessary in a democratic society ’, they should be allowed to continue their activities under the general law on associations.", "e. Parties on local and regional levels", "20. Member states should not restrict the right of association in a political party to the national level. There should be a possibility to create parties on regional and local levels since some groups of citizens might want to associate in groups limiting their action to local and regional levels and to local and regional elections. However, certain new democracies consider such extensive approach to the freedom of association premature in the light of their effort to preserve the unity of the State. Such concern can be understood, but before any restrictions are imposed, the principle of proportionality and the yardstick of what is ‘ necessary in a democratic society ’ should be considered thoroughly. ”", "59. The Report on the participation of political parties in elections (Doc. CDL-AD(2006)025, of 14 June 2006) states as follows:", "“15. Political parties are, as some Constitutions and the European Court of Human Rights have expressly admitted, essential instruments for democratic participation. In fact, the very concept of the political party is based on the aim of participating “in the management of public affairs by the presentation of candidates to free and democratic elections”. They are thus a specific kind of association, which in many countries is submitted to registration for participation in elections or for public financing. This requirement of registration has been accepted, considering it as not per se contrary to the freedom of association, provided that conditions for registration are not too burdensome. And requirements for registration are very different from one country to another: they may include, for instance, organisational conditions, requirement for minimum political activity, of standing for elections, of reaching a certain threshold of votes. However, some pre-conditions for registration of political parties existing in several Council of Europe Member States requiring a certain territorial representation and a minimal number of members for their registration could be problematic in the light of the principle of free association in political parties.”", "60. Further, in the report entitled “Comments on the Draft law on political parties of Moldova” endorsed by the Venice Commission at its 71st plenary session (Doc. CDL-AD(2007)025, of 8 June 2007), the Venice Commission criticised the requirements contained in the Moldovan Draft Law that a political party have no fewer than five thousand members in at least half of the territorial administrative units, with no fewer than 150 members domiciled in each of the aforementioned territorial administrative units. It found those requirements to be unusually high as compared to other democracies in Western Europe and almost impossible to fulfil for any local association. In another report on Moldova the Venice Commission criticised the statutory requirement that political parties submit membership lists for review every year. The relevant part of that report, entitled Joint Recommendations on the electoral law and the electoral administration in Moldova of the European Commission for Democracy through Law and the Office for Democratic Institutions and Human Rights of the OSCE (Doc. CDL-AD(2004)027, of 12 July 2004) read as follows:", "“ 51. Moldova has gone too far in registering political opinions, in that the membership lists have to be submitted for review every year.", "It is difficult to find a justification for this. Once a party is registered and has run for elections, the results of the elections could be sufficient evidence of its support. Only the need for renewed registration of such parties, which never gained support during elections, is admissible. Submitting membership lists to the government if a party has won seats in Parliament in a number of municipalities or rayons, seems at best unnecessarily bureaucratic, at worst, abusive.", "52. Moreover, the requirement of support across the country discriminates regionally based parties.”", "61. The Venice Commission has also adopted a Code of Good Practice in Electoral Matters (Doc. CDL-AD(202)23, of 30 October 2002). The Explanatory Report to the Code of Practice reads, in so far as relevant, as follows:", "“63. Stability of the law is crucial to credibility of the electoral process, which is itself vital to consolidating democracy. Rules which change frequently – and especially rules which are complicated – may confuse voters. Above all, voters may conclude, rightly or wrongly, that electoral law is simply a tool in the hands of the powerful, and that their own votes have little weight in deciding the results of elections.", "64. In practice, however, it is not so much stability of the basic principles which needs protecting (they are not likely to be seriously challenged) as stability of some of the more specific rules of electoral law, especially those covering the electoral system per se, the composition of electoral commissions and the drawing of constituency boundaries. These three elements are often, rightly or wrongly, regarded as decisive factors in the election results, and care must be taken to avoid not only manipulation to the advantage of the party in power, but even the mere semblance of manipulation.", "65. It is not so much changing voting systems which is a bad thing – they can always be changed for the better – as changing them frequently or just before (within one year of) elections. Even when no manipulation is intended, changes will seem to be dictated by immediate party political interests.”", "B. Comparative law materials", "62. The Court conducted a comparative study of the legislation of twenty- one Member States of the Council of Europe. Thirteen of those States impose a minimum membership requirement on political parties. In particular, in order to obtain registration political parties are required to prove that they have a certain number of founding members. The required minimum membership ranges from 30 in Turkey and 100 in Croatia to 5,000 in Moldova and 25,000 in Romania. Five countries ( Austria, France, Germany, Italy and Spain ) do not impose any minimum membership requirement on political parties. Three more countries, while not setting a membership requirement as such, make registration of a political party conditional on producing a certain number of signatures of support (5,000 in Finland and Norway and 10,000 in Ukraine ). In only two countries is there a statutory requirement that a political party establish regional branches in a certain number of regions ( in more than one half of the regions in Ukraine and in all regions in Armenia ). The legislation of two more countries requires political parties to have members domiciled in a certain number of regions ( no fewer than one hundred and fifty members in more than one half of the regions in Moldova and no fewer than seven hundred members in at least eighteen regions in Romania ).", "63. It must also be noted that out of the twenty-one countries studied by the Court the legislation of only two countries ( Latvia and Ukraine ) restricts the right to nominate candidates for elections to political parties or their coalitions. The legislation of all the other countries examined allows the nomination of election candidates by associations of citizens or by self-nomination.", "64. The Court also studied a report adopted by the Venice Commission, on the establishment, organisation and activities of political parties on the basis of the replies to the questionnaire on the establishment, organisation and activities of political parties (Doc. CDL-AD (2004)004, of 16 February 2004), which, in so far as relevant, reads as follows:", "“ 1. This report has been prepared from the replies to the Questionnaire on Establishment, Organisation and Activities of Political Parties, which was adopted by the Sub-Commission on Democratic Institutions (Venice, 13 March 2003, CDL-DEM(2003)1rev). The questionnaire is a follow-up to a similar document, which was sent out earlier, as part of preparations for the adoption of Guidelines and Report on the Financing of Political Parties ( Venice, 9 - 10 March 2001, CDL-INF(2001)8).", "2. This time 42 countries responded. They are listed here in alphabetical order:", "Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Japan, Republic of Korea, Kyrghyz Republic, Latvia, Liechtenstein, Lithuania, Luxembourg, “The Former Yugoslav Republic of Macedonia”, Malta, The Netherlands, Poland, Romania, The Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and The United Kingdom.", "...", "1.4 Does the law distinguish between political parties on the local, the regional and the national level?", "14. The majority of responding countries do not distinguish between political parties on different levels of government, no matter whether the governmental system of the country is unitary, federal or other; Austria, Greece, Finland, France, Italy, Japan, Luxembourg, Malta and Spain may be mentioned as examples. There are exceptions, however. Canada distinguishes between political parties on the federal and on the provincial level. Georgia prohibits explicitly establishment of political parties on the grounds of regional or territorial basis. Germany does not include political activities on the local level as aiming at taking part in the forming of the will in the representation of the people, i.e. the whole of the people; associations which are politically active on the local level only, therefore, do not fall within the concept of political party in the sense of the Constitution and the German legislation on political parties.", "...", "2.2 What are the substantive and procedural requirements to establish a political party?", "22. A number of countries have a specific legal framework for the activities of political parties and their establishment.", "– in general", "– concerning its political programme", "– concerning founding members or concerning other individuals, who in some way have to support the establishment (and their number, citizenship, geographical distribution etc.)", "23. Some countries impose on political parties an obligation to go through a registration process. Almost all countries mentioned in the first group in paragraph 2.1 have to go through a registration process or at least through deposition of their articles of association with the competent authorities of their country. This process is justified by the need of formal recognition of an association as a political party. Some of these additional requirements can differ from one country to another:", "...", "d) minimum membership (Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Czech Republic, Estonia, Georgia, Germany, Greece, Kyrgyzstan, Latvia, Lithuania, Russian Federation, Slovakia and Turkey);", "...", "i ) signatures attesting certain territorial representation ( Moldova, Russian Federation, Turkey and Ukraine );", "...", "24. After these requirements are met, a competent body (Ministry of Justice, for example) proceeds with official registration. In the case of such countries as, for example, Austria and Spain, the Charter (articles of association) are just submitted to the competent authority in order to be added to a special State register.", "...", "3.6 Is a political party required to maintain national, regional or local branches or offices?", "48. There are no requirements in law to maintain branches or offices in a particular way in Andorra, Austria, Belgium, Canada, Estonia, Finland, France, Georgia, Hungary, Italy, Latvia, Liechtenstein, Luxembourg, Sweden and Switzerland. Romania requires political parties to maintain a head office, Ireland requires headquarters and Turkey, a national office in Ankara. Germany requires parties to maintain regional branches, and in the United Kingdom a party must state whether it intends to operate in the United Kingdom as a whole, in part of the United Kingdom or at a local level; however, this is no more than a statement of intention, and the law does not appear to impose a legal obligation on the party to carry out this statement of intention. In Ukraine, within six months from the date of registration a political party shall secure the formation and registration of its regional, city and district organisations in most regions of Ukraine, in the cities of Kyiv and Sevastopol and in the Autonomous Republic of the Crimea.", "...", "4.2 Is it mandatory for political parties, e.g. as a prerequisite for maintaining registration or for access to public financing,", "- to present individual candidates or lists of candidates for general elections on the local, regional or national level?", "- to participate in local, regional or national election campaigns?", "- to get a minimum percentage of votes or a certain number of candidates elected in local, regional and national elections?", "- to conduct other political activities specified by law?", "52. Regulations on the participation of political parties in the political process of the country are more diverse in the case of States where there is a requirement for party registration. However, financing from public sources is subject to detailed legislation in most countries. Such general trends can be observed in countries for party registration and party financing:", "(a) only parties participating in general elections, which attain a certain threshold can receive public funding (Austria, Belgium, Bosnia and Herzegovina, Canada, Czech Republic, Estonia, “the Former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Greece, Japan, Liechtenstein, Lithuania, Luxembourg, the Netherlands, Poland, Russian Federation, Spain, Slovenia, Sweden);", "(b) registration is revoked if a party:", "(1) does not take part in a certain number of elections ( Armenia );", "(2) does not receive a minimum number of votes ( Armenia ); or", "(3) fails to prove a minimum membership and/or regional representation ( Estonia, Moldova, Ukraine );", "(c) The party is removed from the official list of parties but can continue to exist as an association if it does not take part in a certain number of elections ( Finland ) ... ”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION ON ACCOUNT OF THE REFUSAL TO AMEND THE STATE REGISTER", "65. The applicant complained under Article 11 of the Convention about the refusal to amend the information about its address and ex officio representatives contained in the Unified State Register of Legal Entities. Article 11 reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "A. Admissibility", "66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "67. The applicant submitted that the refusal to amend the State Register had been unlawful. In particular, the requirement to submit the same documents as for the registration of a newly established political party had no basis in domestic law. It followed from the wording of section 16 of the Political Parties Act containing a list of documents to be submitted to the registration authority (see paragraph 44 above) that it applied only to cases of initial registration of a political party immediately after its establishment by the founding congress. Section 27 § 3 of that Act established a simplified notification procedure for registration of amendments to the information contained in the Register (see paragraph 46 above). The Registration of Legal Entities Act also differentiated between initial registration of a legal entity and registration of amendments to the Register, providing for an authorisation procedure in the former case and a notification procedure in the latter (see paragraph 41 above). It followed that the applicant had been unlawfully and arbitrarily required to submit, for verification by the registration authority, the documents enumerated in section 16 of the Political Parties Act. It had however complied with that unlawful requirement and produced the necessary documents.", "68. The applicant disputed the domestic authorities ’ finding that the documents thus produced were defective. It asserted in particular that the general conference of 17 December 2005 which had elected its ex officio representatives and decided to change its official address had been convened and held in accordance with the procedure established by domestic law and its articles of association. The domestic authorities ’ findings to the contrary had been arbitrary and irreconcilable with the available evidence.", "69. Further, the applicant submitted that the refusal to amend the information about its address and ex officio representatives had disrupted its activities. The term of office of the previous ex officio representatives had expired in April 2006. As the authorities had refused to register the new ex officio representatives duly elected at the general conference, the applicant had become unable to function properly. It could not establish new regional branches, submit annual reports or other documents requested by the authorities, or re - submit a request for registration of amendments to the Register, as all those actions required the signatures of the ex officio representatives. Moreover, it had not been the first time that the authorities had invalidated the decisions adopted at the applicant ’ s general conferences. The extraordinary general conference of 17 December 2005 had been convened because the domestic authorities had refused to recognise the decisions adopted at the previous general conference. Finally, the authorities ’ finding that the general conference of 17 December 2005 had been illegitimate had served as a basis for the dissolution of several of the applicant ’ s regional branches and the ultimate dissolution of the applicant itself. For the above reasons, the applicant considered that the authorities ’ refusal to amend the Register had amounted in fact to dissolution in disguise.", "(b) The Government", "70. The Government submitted that the interference with the applicant ’ s rights had been lawful. The Political Parties Act established a special authorisation procedure for registration of political parties. The requirement to obtain a registration authorisation was justified by the special status and role of political parties. The Political Parties Act did not differentiate between types of registration. The same rules therefore applied to the registration of a newly established political party and to the registration of any amendments to the information contained in the Register. In all cases a political party had to submit the documents specified in section 16 of the Political Parties Act (see paragraph 44 above) and the registration authority had competence to verify those documents and decide whether to authorise or refuse registration (see sections 15 § 5, 29 § 1 and 38 § 1 of the Political Parties Act in paragraphs 43, 45 and 53 above). The fact that those provisions allowed different interpretations was not contrary to the Convention. Many laws were inevitably couched in terms which, to a greater or lesser extent, were vague and whose interpretation and application were questions of practice. The role of adjudication vested in the courts was precisely to dissipate such interpretational doubts as remained, taking into account the changes in everyday practice ( the Government referred to Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999 ‑ III, and Gorzelik and Others v. Poland [GC], no. 44158/98, § 65, ECHR 2004 ‑ I ). The Government concluded that domestic provisions governing registration of political parties met the requirements of accessibility and foreseeability. In any event, the applicant had applied to the domestic authorities for instructions as to the registration procedure to be followed and had received detailed explanations. It was also significant that the lawfulness of the refusal of registration had been examined and confirmed by the domestic courts. Given that it was in the first place for the national authorities, and notably the courts, to interpret domestic law, it was not the Court ’ s task to substitute its own interpretation for theirs in the absence of arbitrariness ( they referred to Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII ).", "71. As to the justification for the refusal of registration, the Government submitted that the domestic authorities had refused registration of amendments to the Register because the documents produced by the applicant were flawed with substantive defects. Their perusal had revealed that the general conference which had elected the ex officio representatives and decided to change the official address of the applicant had been illegitimate. In particular, the delegates who had taken part in that conference had not been elected in accordance with the procedure prescribed by law and the applicant ’ s articles of association. The minutes of that conference could not therefore serve as a basis for amending the State Register. The refusal to amend the Register aimed at furthering democracy within the applicant party and protecting the rights of its members to participate in the regional and general conferences and thereby take part in the decision-making process.", "72. The Government further disputed the applicant ’ s allegations that the refusal to amend the Register had obstructed its activities and had led to its dissolution. They submitted that the applicant had been active in 2006 and 2007. In particular, it had taken part in the regional elections, had submitted an annual activity report according to which it had spent more than a million roubles in 2006, and its representatives had participated in the dissolution proceedings. As for the dissolution, it had been ordered on different grounds which were not in any way related to the refusal of registration. Nor had the refusal of registration aimed at disrupting the applicant ’ s activities. The domestic authorities had simply exercised legitimate control over the applicant ’ s compliance with the registration procedure established by domestic law. They argued that the applicant had an obligation to respect domestic law and the domestic authorities were entitled, and had an obligation, to watch over its compliance with statutory requirements and procedures. In particular, it had been necessary to verify whether the applicant ’ s general assembly had been convened and held in accordance with domestic law and its articles of association in order to protect its members from taking arbitrary decisions in breach of democratic procedures.", "73. The Government also stressed that the refusal of registration had not been definitive. The applicant had had an opportunity to correct the identified defects in the documents and re - submit its request for registration. In particular, a new general conference could have been convened at the request of one third of its regional branches and that conference could have elected new ex officio representatives for the applicant. However, the applicant had failed to take any steps to convene a new general conference and remedy the defects identified by the domestic authorities.", "74. Finally, the Government referred to the cases of Cârmuirea Spirituală a Musulmanilor din Republica Moldova v. Moldova (( dec .), no. 12282/02, 14 June 2005) and Baisan for “ Liga Apararii Drepturilor Omului din România ” (the League for the Defence of Human Rights in Romania) v. Romania (( dec .), no. 28973/95, 30 October 1997 ), in which the refusal to register an association which had failed to observe the registration procedure had been found to be compatible with Articles 9 and 11 of the Convention.", "2. The Court ’ s assessment", "(a) General principles", "75. The Court reiterates that the right to form an association is an inherent part of the right set forth in Article 11. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned (see Sidiropoulos and Others v. Greece, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, § 40).", "76. Freedom of association is however not absolute and it must be accepted that where an association, through its activities or the intentions it has expressly or implicitly declared in its programme, jeopardises the State ’ s institutions or the rights and freedoms of others, Article 11 does not deprive the State of the power to protect those institutions and persons. Nonetheless, that power must be used sparingly, as exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. In determining whether a necessity within the meaning of paragraph 2 of these Convention provisions exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts (see Gorzelik and Others, cited above § § 94 and 95; Sidiropoulos, cited above, § 40; and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 84, ECHR 2001-IX).", "77. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 47, Reports of Judgments and Decisions 1998 ‑ I, and Partidul Comunistilor ( Nepeceristi ) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005-I (extracts)).", "78. The Court has also confirmed on a number of occasions the essential role played in a democratic regime by political parties enjoying the freedoms and rights enshrined in Article 11 and also in Article 10 of the Convention. Political parties are a form of association essential to the proper functioning of democracy. In view of the role played by political parties, any measure taken against them affects both freedom of association and, consequently, democracy in the State concerned ( Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 87, ECHR 2003 ‑ II, and United Communist Party of Turkey, cited above, § 25 ).", "(b) Application to the present case", "79. The Court observes that on 17 December 2005 the applicant held a general conference which elected its managers and ex officio representatives and decided to change its official address. It subsequently applied to the registration authority with a request to amend the State Register, as required by domestic law. The registration authority ordered that the applicant should submit the same set of documents as required for the registration of a newly established political party. It then refused to amend the Register, finding, on the basis of the documents submitted by the applicant, that the general conference had been illegitimate.", "80. It was not disputed between the parties that the refusal to amend the State Register amounted to an interference with the applicant ’ s rights under Article 11 of the Convention ( compare Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01, § 123, 14 June 2007 ). The Court accepts the applicant ’ s argument that the refusal to register its ex officio representatives adversely affected its activities. By refusing to give effect to the decisions of the general conference of 17 December 2005 and recognise the ex officio representatives elected at that conference, the public authorities undoubtedly created serious difficulties in the applicant ’ s everyday life. Although there is no evidence to support the applicant ’ s claim that its activities were virtually paralysed as a result of the refusal to amend the Register, there can be no doubt that they were severely disrupted by the inability of the applicant ’ s ex officio representatives to act on its behalf.", "81. It remains to be ascertained whether the interference with the applicant ’ s rights was “prescribed by law”, “pursued a legitimate aim” and was “necessary in a democratic society”.", "82. The Court will first examine the applicant ’ s argument that the registration authority ’ s requirement to submit the same set of documents as for the registration of a newly established political party and its refusal to amend the State Register on account of irregularities in those documents had no basis in domestic law. It reiterates in this connection that according to its settled case-law, the expression “prescribed by law” requires that the impugned measure should have a basis in domestic law and also that the law be formulated with sufficient precision to enable the citizen to foresee the consequences which a given action may entail and to regulate his or her conduct accordingly (see, as a classic authority, Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, § 49).", "83. The Court observes that domestic law is far from precise as to the procedure to be followed in cases of registration of amendments to the State Register. In contrast to the very detailed provisions governing procedure for registration of a newly established party, the procedure for registration of amendments is not determined. The Political Parties Act and the Registration of Legal Entities Act do not specify which documents, save for a simple notification, are to be submitted by the political party for registration of amendments and does not expressly mention the registration authority ’ s power to verify these documents and refuse registration (see paragraphs 41 and 46 above).", "84. To justify the requirement to submit the same set of documents as for the registration of a newly established political party and the powers of the registration authority to refuse registration if those documents were incomplete or flawed, the domestic courts referred to section 3 2 § 7 of the Non-Profit Organisation Act (see paragraph 42 above). The Court however notes that § 7 was added to section 32 on 10 January 2006 and entered into force on 16 April 2006, while the refusals to amend the Register had been made on 16 January and 4 April 2006. The Court is struck by the domestic courts ’ reliance on a provision which was not in force at the material time and which could not therefore serve as a lawful basis for the refusal to amend the State Register.", "85. Given that no other legal document or provision establishing the procedure for amending the Register was referred to in the domestic proceedings, the Court is unable to find that the domestic law was formulated with sufficient precision enabling the applicant to foresee which documents it would be required to submit and what would be the adverse consequences if the documents submitted were considered defective by the registration authority. The Court considers that the measures taken by the registration authority in this case lacked a sufficiently clear legal basis.", "86. In view of the above conclusion, it would be unnecessary to examine whether the interference was proportionate to any legitimate aim pursued. However, in the present case the Court will nevertheless point out that it cannot but disagree with the Government ’ s argument that the interference with the applicant ’ s freedom of association was “necessary in a democratic society”.", "87. The ground for the refusal to amend the Register was the registration authority ’ s finding that the general conference of 17 December 2005 had been convened and held in breach of the procedure prescribed by the applicant ’ s articles of association. The Court accepts that, in certain cases, the States ’ margin of appreciation may include a right to interfere – subject to the condition of proportionality – with an association ’ s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure (see, for example, Ertan and Others v. Turkey ( dec .), no. 57898/00, 21 March 2006; Cârmuirea ..., cited above; and Baisan ..., cited above ) or in the event of a serious and prolonged internal conflict within the association ( see Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy ) and Others v. Bulgaria, nos. 412/03 and 35677/04, § 131, 22 January 2009 ). However, the authorities should not intervene in the internal organisational functioning of associations to such a far-reaching extent as to ensure observance by an association of every single formality provided by its own charter (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 78, ECHR 2009 ‑ ... ).", "88. In the present case the registration authority discovered irregularities in the election of regional delegates for the general conference, finding for example that some regional conferences had been convened by unauthorised persons or bodies, some other regional conferences had been inquorate, minutes of several regional conferences did not mention the names of participants and some of the participants were not members of the applicant. The Court sees no justification for the registration authority to interfere with the internal functioning of the applicant to such an extent. It notes that domestic law did not provide for any detailed rules and procedures for convening regional conferences or electing delegates for the general conference. Nor did it establish any requirements as to the minutes of such conferences. The Court considers that it should be up to an association itself to determine the manner in which its conferences are organised. Likewise, it should be primarily up to the association itself and its members, and not the public authorities, to ensure that formalities of this type are observed in the manner specified in its articles of association (see Tebieti Mühafize Cemiyyeti and Israfilov, cited above, § 78, see also the Venice Commission Guidelines and explanatory report on legislation of political parties: specific issues in paragraph 58 above ). In the absence of any complaints from the applicant ’ s members concerning the organisation of the general conference of 17 December 2005 or the regional conferences preceding it, the Court is not convinced by the Government ’ s argument that the public authorities ’ interference with the applicant ’ s internal affaires was necessary in the aim of protecting the rights of the applicant ’ s members.", "89. In view of the above, the Court concludes that by refusing to amend the State Register, the domestic authorities went beyond any legitimate aim and interfered with the internal functioning of the applicant in a manner which cannot be accepted as lawful and necessary in a democratic society.", "90. There has therefore been a violation of Article 11 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT ’ S DISSOLUTION", "91. The applicant complained of its dissolution for failure to comply with the requirements of minimum membership and regional representation. It relied on Article 11 of the Convention.", "A. Admissibility", "92. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant", "93. The applicant submitted, firstly, that the requirements of minimum membership and regional representation were not justified under the second paragraph of Article 11. In particular, they were unreasonable and did not pursue any legitimate aim. The imposition of such requirements on political parties could not be justified by the interests of national security or public safety. Nor were they necessary for the prevention of disorder or crime or for the protection of the rights and freedoms of others.", "94. Further, the applicant disputed the findings made by the domestic authorities and courts. It argued that the inspections of its membership situation had been carried out by the authorities in a perfunctory manner. The inspections had been unsystematic and had not followed any uniform methodology or clearly defined set of rules established by law. The applicant ’ s members had been questioned over the phone about their membership status and some of them had been intimidated by the authorities. The authorities had required the regional branches to produce countless documents, different for each regional branch. The dissolution proceedings had not been adversarial as the applicant had been denied an opportunity to submit evidence showing the number of its members. The applicant insisted that it had 63,926 members and 57 regional branches, 51 of which had more than 500 members. It had therefore complied with the statutory requirements of minimum membership and regional representation.", "95. The applicant finally submitted that its dissolution had not only violated its freedom of association, but had also restricted its freedom to participate in elections, as under Russian law political parties were the only type of public association entitled to nominate candidates in elections to State bodies.", "(b) The Government", "96. The Government submitted that the interference had been prescribed by law, namely by the amended section 3 § 2 and section 41 of the Political Parties Act and section 2 of the Amending Act (see paragraphs 33, 34 and 54 above). In particular, the above provisions required that, by 1 January 2006, all political parties should increase their membership to 50,000 persons and the membership of their regional branches to 500 persons. It also followed from those legal provisions that if a party had not increased its membership it had to reorganise itself into a public association or be dissolved. The applicable domestic law was accessible and formulated in clear terms so that the applicant had been able to foresee that failure to comply with the above requirements would lead to its dissolution.", "97. To justify the imposition of the requirements of minimum membership and regional representation on political parties, the Government referred to their special status and role as associations taking part in elections and representing citizens ’ interests in State bodies. They argued that those requirements pursued the legitimate aim of protecting the constitutional foundations of the Russian Federation and the rights and legitimate interests of others. Their “necessity” had been confirmed by the Constitutional Court (see paragraphs 55 and 56 above). In particular, the requirements of minimum membership and regional representation promoted the process of consolidation of political parties, created prerequisites for the establishment of large, strong parties, prevented excessive parliamentary fragmentation and thereby ensured normal functioning of the parliament and furthered the stability of the political system. The above requirements were not discriminatory because they did not prevent the emergence of diverse political programmes and were applied in equal measure to all political parties, irrespective of their ideology, aims and purposes set out in their articles of association. Nor did they impair the very essence of the citizens ’ right to freedom of association, as political parties which did not meet that requirement had an opportunity to reorganise themselves into public associations. The Government also argued that the special features of the social and political situation prevailing in contemporary Russia had to be taken into account when determining whether the statutory requirements imposed on political parties were justified ( they referred to Igor Artyomov v. Russia ( dec .), no. 17582/05, 7 December 2006).", "98. The Government further submitted that freedom of association was not absolute. Political parties had an obligation to respect domestic law and the authorities were entitled to watch over their activities to ensure that they were compatible with statutory requirements. As the applicant had breached the requirements of minimum membership and regional representation, and had thereby violated the rights and interests of those parties that complied with the requirements, it had been necessary to dissolve it. The dissolution had not been automatic as the applicant had been given a choice between bringing the number of its members and regional branches into compliance with the amended law to retain its status as a political party or reorganising itself into a public association. However, it had failed to make use of that choice and had therefore become subject to dissolution. It was also noteworthy that the applicant had not been dissolved or banned on account of extremist activities. It was therefore possible for it to establish a new party under the same name. The applicant ’ s members could either establish a new party or join another existing party.", "99. Finally, the Government submitted that the dissolution proceedings had been fair and adversarial, and the domestic courts had examined and assessed the evidence submitted by the parties and made reasoned findings.", "2. The Court ’ s assessment", "100. It is common ground between the parties that the applicant ’ s dissolution amounted to interference with its rights under Article 11 of the Convention. It is not contested that that the interference was “prescribed by law”, notably sections 3 § 2 and 41 § 3 of the Political Parties Act and section 2 §§ 1 and 4 of the Amending Act (see paragraph 33, 34 and 54 above).", "101. The Court further observes that several aims were relied upon by the Government and the Constitutional Court to justify the applicant ’ s dissolution for failure to comply with the requirements of minimum membership and regional representation, namely protecting the democratic institutions and constitutional foundations of the Russian Federation, securing its territorial integrity and guaranteeing the rights and legitimate interests of others (see paragraphs 55, 56 and 97 above). It considers that the defence of territorial integrity is closely linked with the protection of “national security” (see, for example, United Communist Party of Turkey, cited above, § 40), while the protection of a State ’ s democratic institutions and constitutional foundations relates to “the prevention of disorder”, the concept of “order” within the meaning of the French version of Article 11 encompassing the “institutional order” (see Basque Nationalist Party – Iparralde Regional Organisation v. France, no. 71251/01, § 43, ECHR 2007 ‑ VII, and, mutatis mutandis, Gorzelik and Others, cited above, § 76). The Court is prepared to accept that the contested statutory requirements and the applicant ’ s dissolution for failure to comply with them were intended to protect national security, prevent disorder and guarantee the rights of others, and therefore pursued legitimate aims set out in the second paragraph of Article 11 of the Convention.", "102. It remains to be ascertained whether the interference “was necessary in a democratic society”. The Court reiterates that in view of the essential role played by political parties in the proper functioning of democracy, the exceptions set out in paragraph 2 of Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties ’ freedom of association (see case-law cited in paragraphs 76 to 78 above ). It is also significant that the interference at issue in the present case was radical: the applicant party was dissolved with immediate effect. Such a drastic measure requires very serious reasons by way of justification before it can be considered proportionate to the legitimate aim pursued; it would be warranted only in the most serious cases (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria, no. 59489/00, § 56, 20 October 2005, with further references).", "103. The Court notes at the outset that the applicant, created in 1990, was one of the oldest Russian political parties. There was nothing in its articles of association or programme to suggest that it was not a democratic party. It was never claimed that during its seventeen years of existence it ever resorted to illegal or undemocratic methods, encouraged the use of violence, aimed to undermine Russia ’ s democratic and pluralist political system or pursued objectives that were racist or likely to destroy the rights and freedoms of others. The sole reason for its dissolution was its failure to comply with the requirements of minimum membership and regional representation.", "104. The Court must ascertain whether the applicant ’ s dissolution for failure to comply with the above requirements was proportionate to the legitimate aims advanced by the Government. It will, however, first examine whether the opportunity to reorganise into a public association, provided for in the domestic law, counterbalanced the negative effects of the interference.", "(a) Possibility of reorganising into a public association", "105. The Court takes note of the Government ’ s argument that the applicant had been given an opportunity to reorganise itself into a public association. However, it has already found it unacceptable that an association should be forced to take a legal shape its founders and members did not seek, finding that such an approach, if adopted, would reduce the freedom of association of the founders and members so as to render it either non-existent or of no practical value (see Zhechev v. Bulgaria, no. 57045/00, § 56, 21 June 2007 ).", "106. The Court reiterates that political parties have a special status. The only type of association which can come to power, political parties have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena (see Refah Partisi, cited above, § 87).", "107. It is significant that in Russia political parties are the only actors in the political process capable of nominating candidates for election at the federal and regional levels. A reorganisation into a public association would therefore have deprived the applicant of an opportunity to stand for election. Given that participation in elections was one of the applicant ’ s main aims specified in its articles of association (see paragraph 10 above), the status of a public association would not correspond to its vocation. The Court accepts that it was essential for the applicant to retain the status of a political party and the right to nominate candidates for elections which that status entailed.", "108. The Court must next ascertain, against this background, whether the applicant ’ s dissolution for failure to comply with the requirements of minimum membership and regional representation may be considered necessary in a democratic society. It will examine the two requirements in turn.", "( b ) Failure to comply with the minimum membership requirement", "109. The first ground for the applicant ’ s dissolution was its failure to comply with the minimum membership requirement, which was introduced for the first time in 2001, when political parties were required to have no fewer than 10,000 members. In 2004 the required minimum membership was increased to 50,000 persons. In 2009 domestic law was again amended to provide for a gradual decrease of minimum membership to 40,000 persons by 1 January 2012. The minimum membership of a regional branch was also changed on the same occasions (see paragraphs 30 to 39 above).", "110. The Court notes that the minimum membership requirement is not unknown among the member States of the Council of Europe. The legislation of at least thirteen States establishes a minimum membership requirement for political parties (see paragraph 62 above). However, even if no common European approach to the problem can be discerned, this cannot in itself be determinative of the issue (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002 ‑ VI ). The Court notes that the required minimum membership applied in Russia is quite the highest in Europe. In order to verify that it is not disproportionate, the Court must assess the reasons advanced by the legislator and the Constitutional Court to justify it.", "111. The explanatory notes to the draft law on political parties, the resolutions by the State Duma ’ s committees, and the rulings of the Constitutional Court (see paragraphs 31, 32, 55 and 56 ) justify the introduction of the minimum membership requirement and its subsequent increase by the necessity to strengthen political parties and limit their number in order to avoid disproportionate expenditure from the budget during electoral campaigns and prevent excessive parliamentary fragmentation and, in so doing, promote stability of the political system.", "112. The Court is not convinced by those arguments. It notes that in Russia political parties do not have an unconditional entitlement to benefit from public funding. Under domestic law only those political parties that have taken part in the elections and obtained more than 3% of the votes cast are entitled to public financing (see paragraph 51 above). The existence of a certain number of minor political parties supported by relatively small portions of the population does not therefore represent a considerable financial burden on the State treasury. In the Court ’ s view, financial considerations cannot serve as a justification for limiting the number of political parties and allowing the survival of large, popular parties only.", "113. As to the second argument, related to the prevention of excessive parliamentary fragmentation, the Court notes that this is achieved in Russia through the introduction of a 7% electoral threshold (see paragraph 50 above), which is one of the highest in Europe (see Yumak and Sadak v. Turkey [GC], no. 10226/03, § § 64 and 129, 8 July 2008 ). It is also relevant in this connection that a political party ’ s right to participate in elections is not automatic. Only those political parties that have seats in the State Duma or have submitted a certain number of signatures to show that they have wide popular support (200,000 signatures at the relevant time, recently decreased to 150,000 signatures) may nominate candidates for elections (see paragraph 49 above). In such circumstances the Court is not persuaded that to avoid excessive parliamentary fragmentation it was necessary to impose additional restrictions, such as a high minimum membership requirement, to limit the number of political parties entitled to participate in elections.", "114. The Court is also unable to agree with the argument that only those associations that represent the interests of considerable portions of society are eligible for political party status. It considers that small minority groups must also have an opportunity to establish political parties and participate in elections with the aim of obtaining parliamentary representation. It has already held that, although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position (see Gorzelik and Others, cited above, § 90). The voters ’ choice must not be unduly restricted and different political parties must be ensured a reasonable opportunity to present their candidates at elections (see, mutatis mutandis, Yumak and Sadak, cited above, § 108).", "115. Further, the Court observes that domestic law requires that political parties not only prove their compliance with the minimum membership requirement at the moment of their establishment and registration, but that they should subsequently submit annual reports to the registration authority, not only concerning their activities but also confirming their membership situation (see paragraph 52 above). The authorities also have power to conduct inspections once a year and issue warnings or start dissolution proceedings if a political party has an insufficient number of members (see paragraphs 53 and 54 above). The Court is unable to discern any justification for such intrusive measures subjecting political parties to frequent and comprehensive checks and a constant threat of dissolution on formal grounds. If these annual inspections are aimed at verifying whether the party has genuine support among the population, election results would be the best measure of such support.", "116. The Court also notes the uncertainty generated by the changes in the minimum membership requirement in recent years (see paragraph 109 above). The obligation to bring the number of their members in line with the frequently changing domestic law, coupled with regular checks on the membership situation, imposed a disproportionate burden on political parties. In this regard, the Court takes note of the opinion of the Venice Commission that altering the terms and conditions for obtaining and retaining the status of a political party may be seen as affording an opportunity of unjustifiably dissolving political parties (see paragraph 58 above). It also refers to the Venice Commission Code of Practice, which warns of the risk that frequent changes to electoral legislation will be perceived, rightly or wrongly, as an attempt to manipulate electoral laws to the advantage of the party in power (see paragraph 61 above).", "117. The Court observes in this connection that the introduction and the subsequent increase of the minimum membership requirement was one of the aspects of the political reform started in 2001, whose other measures consisted, in particular, of raising the electoral threshold from 5% to 7% and banning electoral blocks and independent candidates from participating in elections (see paragraphs 48 and 50 above). There can be little doubt that all those measures had an evident impact on the opportunities for various political forces to participate effectively in the political process and thus affected pluralism. In particular, the fact that only fifteen political parties out of forty-eight were able to meet the increased minimum membership requirement (see paragraph 35 above) demonstrates the effect of such an increase.", "118. The Court reiterates that where the authorities introduce significant restrictions on the rights of political parties, and in particular where such changes have a detrimental impact on the opposition, the requirement that the Government produce evidence to demonstrate that the amendments were justified is all the more pressing (see, mutatis mutandis, Tănase v. Moldova [GC], no. 7/08, § 169, ECHR 2010 ‑ ... ). In the present case, no convincing explanation has been provided for increasing the minimum membership requirement.", "119. In the light of the above considerations, the Court is unable to accept the view that any minimum membership requirement would be justified unless it permitted the establishment of one political party only (see paragraph 55 above). In the Court ’ s opinion, a minimum membership requirement would be justified only if it allowed the unhindered establishment and functioning of a plurality of political parties representing the interests of various population groups. It is important to ensure access to the political arena for different parties on terms which allow them to represent their electorate, draw attention to their preoccupations and defend their interests (see, mutatis mutandis, Christian Democratic People ’ s Party v. Moldova, no. 28793/02, § 67, ECHR 2006-II).", "120. Turning back to the particular circumstances of the applicant ’ s case, the Court notes that the applicant had existed and participated in elections since 1990. It adjusted its membership and went through a re-registration procedure following the introduction of a minimum membership requirement in 2001. It was dissolved in 2007, however, after a drastic five- fold increase of the minimum membership requirement. The Court considers that such a radical measure as dissolution on a formal ground, applied to a long-established and law-abiding political party such as the applicant, cannot be considered “necessary in a democratic society ”.", "( c ) Insufficient number of regional branches", "121. The second reason for the applicant ’ s dissolution was the authorities ’ finding that it did not have a sufficient number of regional branches with more than 500 members, as required by the legal provisions then in force.", "122. The requirement that a political party should have regional branches in the majority of the Russian regions was, like the minimum membership requirement, introduced for the first time in 2001 (see paragraph 30 above). It follows from the Ruling of the Constitutional Court of 1 February 2005 (see paragraph 55 above) that its rationale was to prevent the establishment, functioning and participation in elections of regional parties, which, according to the Constitutional Court, were a threat to the territorial integrity and unity of the country. Accordingly, the Court has to examine whether the ban on regional political parties is compatible with the Convention.", "123. The Court has previously emphasised that there can be no justification for hindering a public association or political party solely because it seeks to debate in public the situation of part of the State ’ s population, or even advocates separatist ideas by calling for autonomy or requesting secession of part of the country ’ s territory. In a democratic society based on the rule of law, political ideas which challenge the existing order without putting into question the tenets of democracy, and whose realisation is advocated by peaceful means, must be afforded a proper opportunity of expression through, inter alia, participation in the political process. However shocking and unacceptable the statements of an association ’ s leaders and members may appear to the authorities or the majority of the population and however illegitimate their demands may be, they do not appear to warrant the association ’ s dissolution. A fundamental aspect of democracy is that it must allow diverse political programmes to be proposed and debated, even where they call into question the way a State is currently organised, provided that they do not harm democracy itself (see Tănase, cited above, § 167; The United Macedonian Organisation Ilinden – PIRIN and Others, cited above, §§ 57-62; United Communist Party of Turkey, cited above, § 57; and Socialist Party and Others v. Turkey, 25 May 1998, §§ 45 and 47, Reports 1998-III ).", "124. The Court has also found that a problem might arise under the Convention if the domestic electoral legislation tended to deprive regional parties of parliamentary representation (see Yumak and Sadak, cited above, § 124). It is therefore important that regional parties should be permitted to exist and stand for election, at least at the regional level.", "125. The Court also refers to the guidelines of the Venice Commission, which found the requirement of regional or territorial representation for political parties to be problematic and recommended that legislation should provide for the possibility of creating parties on a regional or local level (see paragraphs 58 and 59 above).", "126. Further, the Court observes that very few Council of Europe member States prohibit regional parties or require that a political party should have a certain number of regional or local branches (see paragraphs 62 and 64 above). Georgia is the only country that explicitly prohibits regional political parties. Two countries, Ukraine and Armenia, require that a political party have a certain number of regional branches, while two more countries, Moldova and Romania, require political parties to have members domiciled in a certain number of regions. The Court considers that a review of practice across Council of Europe member States reveals a consensus that regional parties should be allowed to be established. However, notwithstanding this consensus, a different approach may be justified where special historical or political considerations exist which render a more restrictive practice necessary (see Tănase, cited above, § 172, and, mutatis mutandis, Refah Partisi, cited above, § 105 ).", "127. The Court takes note of the Constitutional Court ’ s reference to Russia ’ s special historico -political context characterised by the instability of the newly established political system facing serious challenges from separatist, nationalist and terrorist forces (see paragraph 55 above). The Court emphasises the special position of Russia, which relatively recently set out on the path of democratic transition. The Court accepts that there was likely to be a special interest in ensuring that, upon the collapse of the Soviet Union and the onset of democratic reform in 1991, measures were taken to secure stability and allow the establishment and strengthening of fragile democratic institutions. Accordingly, the Court does not exclude that in the immediate aftermath of the disintegration of the Soviet Union a ban on establishing regional political parties could be justified.", "128. However, the Court finds it significant that the ban was not put in place in 1991 but in 2001, some ten years after Russia had started its democratic transition. In the circumstances, the Court considers the argument that the measure was necessary to protect Russia ’ s fragile democratic institutions, its unity and its national security to be far less persuasive. In order for the recent introduction of general restrictions on political parties to be justified, particularly compelling reasons must be advanced. However, the Government have not provided an explanation of why concerns have recently emerged regarding regional political parties and why such concerns were not present during the initial stages of transition in the early 1990s (see, for similar reasoning, Tănase, cited above, § 174).", "129. The Court considers that with the passage of time, general restrictions on political parties become more difficult to justify. It becomes necessary to prefer a case - by - case assessment, to take account of the actual programme and conduct of each political party rather than a perceived threat posed by a certain category or type of parties (see, mutatis mutandis, Tănase, cited above, § 175, and Ādamsons v. Latvia, no. 3669/03, § 123, 24 June 2008 ). In the Court ’ s opinion, there are means of protecting Russia ’ s laws, institutions and national security other than a sweeping ban on the establishment of regional parties. Sanctions, including in the most serious cases dissolution, may be imposed on those political parties that use illegal or undemocratic methods, incite to violence or put forward a policy which is aimed at the destruction of democracy and flouting of the rights and freedoms recognised in a democracy. Such sanctions are concerned with identifying a credible threat to the national interest, in particular circumstances based on specific information, rather than operating on a blanket assumption that all regional parties pose a threat to national security.", "130. The present case is illustrative of a potential for miscarriages inherent in the indiscriminate banning of regional parties, which is moreover based on a calculation of the number of a party ’ s regional branches. The applicant, an all-Russian political party which never advocated regional interests or separatist views, whose articles of association stated specifically that one of its aims was promotion of the unity of the country and of the peaceful coexistence of its multi-ethnic population (see paragraph 10 above) and which was never accused of any attempts to undermine Russia ’ s territorial integrity, was dissolved on the purely formal ground of having an insufficient number of regional branches. In those circumstances the Court does not see how the applicant ’ s dissolution served to achieve the legitimate aims cited by the Government, namely the prevention of disorder or the protection of national security or the rights of others.", "(d) Overall conclusion", "131. In view of the foregoing, the Court finds the domestic courts did not adduce “relevant and sufficient” reasons to justify the interference with the applicant ’ s right to freedom of association. The applicant ’ s dissolution for failure to comply with the requirements of minimum membership and regional representation was disproportionate to the legitimate aims cited by the Government. There has accordingly been a violation of Article 11 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "132. The applicant further complained under Article 6 § 1 of the Convention that the dissolution proceedings had been unfair. However, having regard to all the materials in its possession, the Court finds that they do not disclose any appearance of a violation of Article 6. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "133. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "134. The applicant claimed 5,990,140.98 Russian roubles (RUB) in respect of pecuniary damage, of which RUB 1,996,669.78 represented the expense of holding its general conference of 17 December 2005, while the remaining RUB 3,993,471.2 represented expenses that would be required to establish a new political party.", "135. The Government submitted that there was no causal link between the complaints lodged by the applicant and the claims in respect of the expenses incurred in connection with the general conference. The claims relating to the establishment of a new political party were hypothetical and not supported by any documents.", "136. The Court observes that the applicant did not submit any claim for non-pecuniary damage. As regards the pecuniary damage alleged, it does not discern any causal link between the violations found and the applicant ’ s expenditure on the organisation of the general conference. The claims relating to the establishment of a new political party are speculative and are not supported by any documents. The Court therefore rejects the claim for pecuniary damage.", "B. Costs and expenses", "137. Relying on legal fee agreements, the applicant claimed RUB 433,500 for the legal fees incurred before the domestic courts and RUB 250,000 for those incurred before the Court.", "138. The Government submitted, in respect of the expenses allegedly incurred before the domestic courts, that the legal fee agreements produced by the applicant related to the proceedings concerning the dissolution of the applicant ’ s regional branches. They were not therefore connected with the applicants ’ complaints. The claim for the expenses incurred in connection with the proceedings before the Court was excessive.", "139. The Court reiterates that legal costs and expenses are only recoverable in so far as they relate to the violation found (see Van de Hurk v. the Netherlands, 19 April 1994, § 65, Series A no. 288 ). It accepts the Government ’ s argument that the documents produced by the applicant in support of its claims for legal fees incurred before the domestic courts did not relate to the proceedings examined in the present case. It therefore rejects this part of the claim. On the other hand, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of 6,950 euros (EUR) in respect of the legal fees incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant on that amount.", "C. Default interest", "140. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "8. The applicants are Swedish citizens. Mr. Folke Schmidt is a professor of law at the University of Stockholm and Mr. Hans Dahlström is an officer in the Swedish Army.", "9. The applicants are members of trade unions affiliated to two of the main federations representing Swedish State employees, namely the Swedish Confederation of Professional Associations ( Sveriges Akademikers Centralorganisation, abbreviated to SACO ) in the case of Mr. Schmidt and the National Federation of State Employees ( Statstjänstemännens Riksförbund, abbreviated to SR) in the case of Mr. Dahlström.", "In 1971, after expiry of one collective agreement and during negotiations for a new agreement, the applicants ’ unions called selective strikes not affecting the sectors in which worked the applicants, who thus did not come out on strike. Mr. Schmidt and Mr. Dahlström complain that on conclusion of the new agreement, they, as members of the \"belligerent\" unions, were denied certain retroactive benefits paid to members of other trade unions and to non-union employees who had not participated in the strikes.", "General background", "10. For more than a hundred years, workers and employers in the private sector in Sweden have traditionally enjoyed the right to form and join trade unions and associations and to take action in defence of their occupational interests without interference by the State.", "Certain principles of labour law which had evolved in practice were codified in 1928 and 1936 by the following legislation:", "(i) the 1928 Collective Agreements Act (lag om kollektivavtal );", "(ii) the 1928 Labour Court Act (lag om arbetsdomstol ); and", "(iii) the 1936 Act on the Right to Organise and Negotiate (lag om förenings-och förhandlingsrätt ).", "11. The 1928 Collective Agreement Act deals with collective labour agreements between employers or employers ’ associations and trade unions. It specifies in particular the legal effects of such agreements. For example, the parties may not take strike or lock-out action in regard to an issue regulated by a collective agreement in force between them.", "12. The 1928 Labour Court Act contained rules governing the composition, jurisdiction and procedure of the Labour Court. The Labour Court was competent to hear cases of alleged violation of the 1936 Act on the Right to Organise and Negotiate. It also had jurisdiction in disputes relating to the interpretation or application of collective agreements, but proceedings could only be brought by a party to the agreement in issue. Unions or non-union employees to whom such an agreement had been made applicable (paragraph 17 below) were obliged to bring their disputes before the ordinary courts or administrative courts, as the case might be.", "13. The above-mentioned Act of 1936 guarantees two distinct rights to the parties on the labour market, namely the right to organise and the right to negotiate.", "The right to organise is defined in Section 3 of the Act as being the right of employers and employees to belong to an employers ’ organisation or a trade union, to exercise their rights as members of that organisation or union, and to work for an organisation or a union or for the formation of an organisation or a union, without interference or pressure by the other party. The Act specifies that the right to organise shall be considered as being violated \"if measures are taken either by employers or by employees to constrain any employee or employer, as the case may be, to refrain from becoming a member of, or to resign from, an association, to refrain from exercising his rights as a member of an association, or to refrain from working for an association or for the formation of an association, and likewise if measures are taken either by employers or by employees calculated to cause prejudice to an employee or employer, as the case may be, on the ground that such employee or employer is a member of an association, exercises his rights as a member of an association or works for an association or for the formation of an association\".", "The only way in which such associations enjoy the protection of the Act is that they may be awarded damages if the other party violates the right to organise of an individual member in such a way that the violation is to be regarded as intervention in the affairs of the association.", "The right to negotiate is defined in Section 4 of the 1936 Act as being \"the right to institute negotiations regarding conditions of employment or relations between employers and employees in general\". It imposes on the other party an obligation to enter into negotiations, to attend meetings for negotiations and, where necessary, to make proposals for the settlement of the issues involved. This provision is applicable to all trade unions.", "14. Prior to 1966, the State determined the wages and conditions of employment of its employees in the event of a breakdown of the negotiations between the State and the employees.", "As from 1 January 1966, the 1965 State Officials Act ( statstjänstemannalag ) has virtually assimilated State employees to employees in the private sector as regards trade union rights, strikes, lock-outs, etc. The Act made the 1928 Collective Agreement Act, the 1928 Labour Court Act and the 1936 Act on the Right to Organise and Negotiate applicable in the public sector. Furthermore, the Act provided for collective agreements to be concluded, subject to certain exceptions, between the National Collective Bargaining Office ( Statens Avtalsverk, hereinafter referred to as \"the Office\"), representing the State as employer, and the organisations of State employees. The Ministry of Finance has a nominee on the governing board of the Office.", "15. The 1965 legislative reform was facilitated by the centralised structure of the Swedish trade union movement; one factor which greatly contributed to its adoption was the conclusion in December 1965 of a Basic Agreement on Negotiations ’ Procedure ( slottsbacksavtalet ) between the Office and the four main trade union organisations of State employees, namely:", "(i) the State Employees ’ Union ( Statsanställdas Förbund, abbreviated to SF and known prior to 1 July 1970 as Statstjänarkartellen ),", "(ii) the National Federation of State Employees (SR),", "(iii) the Swedish Confederation of Professional Associations (SACO),", "(iv) the Civil Servants Section of the Central Organisation of Salaried Employees ( Tjänstemännens Centralorganisations Statstjänstemannasektion, abbreviated to TCO-S).", "According to the information at the disposal of the Court, these federations represent the large majority of Swedish State employees: more than 450,000 out of the 500,000 whose terms of employment are negotiated by the Office. About forty trade unions are affiliated to these organisations. The few independent trade unions represent only about 2,000 State employees in all.", "Insofar as they are union members at all, university teachers and army officers generally belong to SACO and SR respectively. These two organisations, which are respectively open to staff possessing a university degree or the school leaving certificate (the equivalent of the baccalauréat ), recently merged after the case had been brought before the Commission.", "According to the trade unions ’ own published figures, the number of SACO members in respect of whom the Office conducts collective negotiations was about 48,800 in 1971 and 1972; it rose to 51,800 in 1973 and was between 53,600 and 53,700 at the end of 1974. The university teachers ’ union affiliated to SACO had between 1,800 and 1,900 members in 1971, between 1,900 and 2,000 in 1972, between 2,100 and 2,200 in 1973 and between 2,300 and 2,400 at the end of 1974. SR had 19,200 members in 1971, 19,800 in 1972 and about 20,000 at the end of 1973. The army officers ’ union affiliated to SR had between 6,900 and 7,000 members in 1971, 7,300 in 1972 and between 7,400 and 7,500 at the end of 1973; it would appear that in August 1975 its membership had fallen to about 7,100 or 7,200.", "16. Clause 4 of the above-mentioned Basic Agreement provides that negotiations with a view to concluding a collective agreement shall be conducted on the employees ’ behalf by the \"main organisation\" concerned, unless the Office and the \"main organisation\" agree otherwise.", "17. The Royal Order of 30 June 1965 relating to Certain Public Collective Agreements (KK om vissa statliga kollektivavtal m.m .) includes the following provisions:", "Article 3", "\"Collective agreements as to such conditions of employment or service as are determined by the King-in-Council or by Parliament shall be concluded conditionally on the agreement being sanctioned by the King-in-Council.\"", "Article 4", "\"An Authority which is bound by a collective agreement shall apply the provisions of the agreement to any employee within the occupational group and region to which the agreement refers, notwithstanding that the employee is not covered by the agreement or by any other applicable collective agreement.\"", "18. Collective agreements in Sweden are normally concluded for a period of two or three years. For various reasons, however, the new collective agreement is often concluded some time after the previous agreement has expired. In such cases, the new agreement has often specifically provided that its terms shall apply retroactively as from the date of expiry of the previous agreement. In the case of a strike during the bargaining period, on the other hand, employers - both in the public and private sector - have customarily refused to grant retroactive benefits in order to deter unions from taking industrial action in the future (application of the principle that \"a strike destroys retroactivity\").", "19. Negotiations in the public sector of the labour market are centralised in that they are conducted by the federations on behalf of their member unions. Moreover, strikes and other collective action may not be taken by the different trade unions independently but rather on the basis of a decision by, or after receiving the approval of, the federation concerned, which chooses and designates in accordance with its pre-arranged policy or tactics those of its members who are to take part in the action. According to the present practice, the negotiations between the Office and the federations result in one single agreement which regulates the increase in salaries, the grading of different categories of employees, working hours, various salary allowances, etc., and which applies, as a result of Article 4 of the Order referred to above (paragraph 17), to all categories of State employees, including those who are not represented by the federations. The agreement is normally signed by all the federations.", "The question whether an individual employee has any means of challenging his union ’ s decision to go on strike is a matter exclusively governed by the internal rules of the union concerned. These may provide for a right to ask for a secret ballot or for other rights to object to the union ’ s decisions to take industrial action.", "20. The law described above at paragraphs 10 to 17 has in recent years undergone various changes which, being subsequent to the facts at issue, are not relevant for the present case.", "Facts of the particular case", "21. In 1969 a global agreement for the years 1969 and 1970 was concluded by the Office and the four federations. When this period expired on 31 December 1970, the parties were still engaged in negotiations regarding the new global agreement. No agreement was reached and a Commission of Conciliation was appointed, but negotiations before it broke down as well. Consequently, SACO and SR proclaimed selective strikes which became effective on 5 February 1971 and involved about 4,000 members. This resort to strike action, which was quite lawful (see paragraphs 11 and 14 above), did not apply to university teachers or the Army so that neither Mr. Schmidt nor Mr. Dahlström took any part in the strikes.", "The Office retaliated and, on 19 February 1971, about 30,000 members of SACO and SR were locked out. This affected all university teachers belonging to SACO, including Mr. Schmidt, and some officers belonging to SR, but not Mr. Dahlström. New strikes and lock-outs were proclaimed, but did not become effective. On 12 March 1971, an Act was promulgated which gave the King-in-Council power to order the prolongation of certain collective agreements for a period of six weeks, but not extending beyond 25 April 1971, provided that collective industrial action threatened vital public interests. By virtue of this Act the previous collective agreement was reinstated on 13 March 1971 for a period of six weeks and all strikes and lock-outs terminated forthwith.", "22. Subsequent negotiations before the Commission of Conciliation resulted in June 1971 in a new global agreement for the years 1971 to 1973. According to this agreement, certain posts were upgraded and the salary scales were generally increased retroactively as from 1 January 1971. Clause 18, however, provided for an exception in this respect:", "\"Officials who were members between 1 January and 12 March 1971 (or any part of this period) of organisations that organised industrial action for any part of this period, shall not be entitled from 1 January to 12 March 1971 to the increased wage benefits applicable under the agreement, unless the Collective Bargaining Office decides otherwise. This declaration also concerns other officials if they took part in any such industrial action.\"", "23. The agreement was only signed by TCO-S and SF. SACO and SR refused since they considered the terms unacceptable. The agreement, and in particular clause 18, was nevertheless applied to their members by virtue of Article 4 of the above-mentioned Royal Order (paragraph 17).", "According to the applicants, during the negotiations SF and TCO-S had urged that the non-retroactivity clause should not be included in the agreement and expressed the opinion that it properly belonged to an agreement between the State and the two organisations concerned, SACO and SR. SF and TCO-S declared this expressly and inserted a reservation in the record before putting their signatures to the agreement. TCO-S had, however, attempted to entice to itself some members of SACO, which was in its opinion a purposeless organisation, and had in fact written to the applicant Schmidt in this vein.", "24. As a result of the agreement, members of SACO and SR, insofar as they were upgraded, did not receive the higher salary for the period from 1 January 1971 to 12 March 1971, nor did they benefit from the general increase in the salary scales during the same period, regardless of whether or not they had been on strike. State employees who were not members of SACO or SR but who had all the same participated in the strike, were also refused the benefit of retroactivity.", "The exception clause applied to both applicants as members of SACO and SR, even though they themselves had not gone on strike at all. Mr. Schmidt was affected for the period from 1 January to 19 February 1971, being the date when he was locked out and thus deprived of his salary. Mr. Dahlström, who was upgraded under the new agreement, was affected for the whole period up to 12 March 1971. During these periods the applicants performed work for a lower salary than that paid to other employees who were in the same salary brackets but not members of SACO or SR. Their financial losses amounted to Kr. 300 and Kr. 1,000 respectively.", "25. Mr. Schmidt, following the conclusion of the collective agreement, gave notice to the Office that, through his special treatment in regard to wages, his right to organise had been violated. When the Office nevertheless refused him the benefit of retroactivity, SACO and SR brought an action against the State before the Labour Court under the 1936 Act on the Right to Organise and Negotiate, seeking on behalf of the applicants (and a third person who was also a member of SR), inter alia:", "(i) a declaration that the measures taken by the Office constituted a violation of the applicants ’ right to organise and that this involved an interference with the affairs of SACO and SR;", "(ii) a declaration that clause 18 of the agreement of June 1971 was of no effect in regard to the applicants;", "(iii) an order that the State pay compensation to the applicants for financial loss and infringement of their right to organise.", "SACO and SR asserted that the State had infringed their members ’ right to organise as guaranteed in Section 3 of the 1936 Act since, with regard to retroactive wage benefits, they were subjected to special treatment in comparison with members of TCO-S and SF and non-union officials. The Office denied any such infringement since members of SACO and SR had been refused the benefit of retroactivity only for the reason that the State wanted to maintain the principle that \"a strike destroys retroactivity\". A comparison between SACO and SR members, on the one side, and members of TCO-S and SF and non-union officials, on the other, did not provide any basis for the conclusion that the State acted on such a basis or with such a purpose as was envisaged by Section 3 of the 1936 Act.", "26. In its judgment of 22 December 1971, the Labour Court unanimously rejected the claim of the applicants ’ unions. The Court first confirmed the parties ’ common view that the right to organise did not exclude the possibility for the State to enforce the principle that a strike destroys retroactivity. The adoption of such a position, and its enforcement after a conflict, were not to be regarded in themselves as an attack on the right to organise. Furthermore, the employer ’ s duty to respect this right did not include any obligation in principle to pay equal wages to union and non-union employees or to members of different organisations. The mere fact that different wages were accorded to different groups of employees did not by itself lead to the conclusion that a measure violating Section 3 had been employed. However, any favouring either of members of the organisation which reached agreement or of non-union employees, with the aim of exercising against the members of the other organisation the type of pressure envisaged in Section 3, would constitute a violation of that provision.", "The Court then found that no such purpose on the part of the State could be established. In particular, no support had appeared for the idea that the State intended to induce members of SACO and SR to switch over to TCO-S and SF. In this context, the Court assumed that the latter organisations would also have been refused retroactivity if they had organised industrial action during the process of negotiations.", "With respect to non-union employees the Court found that the reason why they were granted a special benefit had nothing to do with their position as being non-union. Any procedure designed to refuse the benefit of retroactivity generally to non-union employees in sectors where SACO and SR were dominant or representative obviously could have become very complicated and time-consuming. Moreover, no recognised norms existed for determining such sectors, and the concept of representation was ambiguous and disputed. The Court then referred to the State ’ s failure to negotiate an agreement which would exclude retroactivity to all non-union employees within the sectors in which SACO and SR were representative. In this respect the Court considered that the facts of the case did not support the conclusion that this failure showed any intention on the part of the State to violate the right to organise. Otherwise, the State would, as soon as one federation organised industrial action, be barred from upholding the principle that a strike destroys retroactivity in any other way than by refusing retroactive validity for agreements concluded with respect to all employee organisations. Such a general limitation of the State ’ s possibilities of upholding the principle could not be based on Section 3 of the 1936 Act.", "In the case before it, the Court did not consider the granting of retroactive benefits to non-union employees who had not been on strike as proof of any purpose to violate the right to organise. In the Court ’ s opinion, the parties had not been able to present anything more than quite uncertain information on the total number of non-union officials or on their field of employment. The Court indicated that the plaintiffs ’ view concerning the State ’ s purpose in its treatment of non-union officials might have appeared more reasonable if it had been possible to show that the large majority of non-union officials were active within the main field of activity of SACO and SR. Conversely, it would be less reasonable to take notice of the treatment of the group of non-union officials if these could primarily be classified within the field of recruitment of SF and TCO-S. The uncertainty in regard to these circumstances argued, in the Court ’ s conclusion, in favour of the States declaration that its purpose did not extend beyond upholding the principle that a strike destroys retroactivity.", "27. In their application, lodged with the Commission on 9 June 1972, the applicants complained that in the particular circumstances the implementation of the Government ’ s policy regarding payment of retroactive benefits had amounted to preferential treatment, in particular in comparison with non-union employees, and had consequently violated Article 11 (art. 11) of the Convention.", "The Commission declared the application admissible by a decision of 18 October 1972.", "During the examination of the merits, the applicants relied on Article 11 (art. 11) and also Article 14, read in conjunction with Article 11 (art. 14+11).", "28. In its report of 17 July 1974, the Commission:", "(i) confirmed its opinion, previously expressed in the report in the Swedish Engine Drivers ’ Union case, that Article 11 para. 1 (art. 11-1) may legitimately extend to cover State responsibility in the field of labour-management relations and thus to provide some protection for unions against interference by employers;", "(ii) expressed the opinion:", "- by nine votes to one with one abstention, that the Government ’ s policy of denying retroactive benefits to non-striking members of belligerent unions did not in the circumstances infringe the applicants ’ right, under Article 11 para. 1 (art. 11-1), to form and join the trade unions;", "- that in view of the preceding finding, the Commission was not called upon to examine whether the action complained of was justified under Article 11 para. 2 (art. 11-2);", "- by eight votes to one with two abstentions, that the differential treatment complained of was in the circumstances justified as an industrial relations policy and that there had been no violation of Article 14 read in conjunction with Article 11 para. 1 (art. 14+11-1).", "The report contains a separate concurring opinion." ]

[ "AS TO THE LAW", "29. Mr. Schmidt and Mr. Dahlström complain that under clause 18 of the collective agreement of June 1971, as members of organisations having proclaimed selective strikes, namely SACO and SR, they were denied retroactivity of certain benefits, even though they themselves had not gone on strike. The Office, it was submitted, had thereby acted unfairly to the prejudice of the applicants as compared with non-union officials and members of unions, such as TCO-S and SF that had refrained from strike action. Violation was alleged of Article 11 (art. 11) of the European Convention, considered both on its own and in conjunction with Article 14 (art. 14+11).", "30. Having come to the conclusion that no such breaches had occurred, the Commission referred the case to the Court, emphasising the importance of the questions that arose therein on the interpretation and application of the Convention.", "I. AS TO THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)", "31. Article 11 para. 1 (art. 11-1) of the Convention reads: \"Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.\"", "32. In its main submission, the Government maintained that, generally speaking, the primary purpose of the Convention is to protect the individual against the State as holder of public power, but that the Convention does not oblige the State to ensure compliance with its provisions in private law relations between individuals. Article 11 (art. 11), it was contended, provides no departure from this rule. Furthermore, the applicants were attacking not the Swedish legislative, executive or judicial authorities, but rather the National Collective Bargaining Office and thus the \"State as employer\". In the sphere of work and employment conditions, the Convention cannot impose upon the State obligations that are not incumbent upon private employers.", "According to the Commission, on the other hand, the disputed decision adopted by the Office may in principle be challenged under Article 11 (art. 11), even if the Office fulfils typical employer functions.", "33. The Convention nowhere makes an express distinction between the functions of a Contracting State as holder of public power and its responsibilities as employer. In this respect, Article 11 (art. 11) is no exception. What is more, paragraph 2 in fine of this provision (art. 11-2) clearly indicates that the State is bound to respect the freedom of assembly and association of its employees, subject to the possible imposition of \"lawful restrictions\" in the case of members of its armed forces, police or administration.", "Article 11 (art. 11) is accordingly binding upon the \"State as employer\", whether the latter ’ s relations with its employees are governed by public or private law. Consequently, the Court does not feel constrained to take into account the circumstance that in any event certain of the applicants ’ complaints appear to be directed against both the Office and the Swedish State as holder of public power. Neither does the Court consider that it has to rule on the applicability, whether direct or indirect, of Article 11 (art. 11) to relations between individuals stricto sensu.", "34. The Court notes that while Article 11 para. 1 (art. 11-1) presents trade union freedom as one form or a special aspect of freedom of association, the Article does not secure any particular treatment of trade union members by the State, such as the right to retroactivity of benefits, for instance salary increases, resulting from a new collective agreement. Such a right, which is enunciated neither in Article 11 para. 1 (art. 11-1) nor even in the Social Charter of 18 October 1961, is not indispensable for the effective enjoyment of trade union freedom and in no way constitutes an element necessarily inherent in a right guaranteed by the Convention.", "35. As far as their personal freedom of association is concerned, the applicants have retained this freedom both as of right and in fact despite the measure complained of; for they have remained members of their respective trade union organisations. Although the applicants only complained to the Commission in their own names, the Court notes in passing, in the light of the information provided at the public hearing on 25 September 1975, that clause 18 of the collective agreement of June 1971 was not followed by any decline in the membership of either SACO or SR.", "36. The applicants further consider that the aforementioned clause 18 tended to discourage them from thenceforth availing themselves of their right to strike, which is, in their submission, an \"organic right\" included in Article 11 (art. 11) of the European Convention.", "The Court recalls that the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (National Union of Belgian Police judgment, 27 October 1975, Series A no. 19, p. 18, para. 39). Article 11 para. 1 (art. 11-1) nevertheless leaves each State a free choice of the means to be used towards this end. The grant of a right to strike represents without any doubt one of the most important of these means, but there are others. Such a right, which is not expressly enshrined in Article 11 (art. 11), may be subject under national law to regulation of a kind that limits its exercise in certain instances. The Social Charter of 18 October 1961 only guarantees the right to strike subject to such regulation, as well as to \"further restrictions\" compatible with its Article 31, while at the same time recognising for employers too the right to resort to collective action (Article 6 para. 4 and Appendix). For its part, the 1950 Convention requires that under national law trade unionists should be enabled, in conditions not at variance with Article 11 (art. 11), to strive through the medium of their organisations for the protection of their occupational interests. Examination of the file in this case does not disclose that the applicants have been deprived of this capacity.", "37. Having thus established no infringement of a right guaranteed by paragraph 1 of Article 11 (art. 11-1), the Court is not called upon to have regard to paragraph 2 (art. 11-2), on which in any case the Government stated it did not rely.", "II. AS TO THE ALLEGED VIOLATION OF ARTICLES 11 AND 14 TAKEN TOGETHER (art. 14+11)", "38. Article 14 (art. 14) is worded as follows: \"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.\"", "39. Despite finding no breach of Article 11 (art. 11), the Court must ascertain whether the difference in treatment, characterised by the applicant as discriminatory, infringed Articles 11 and 14 art. 14+11) taken together. While the granting of retroactivity of salary increases or other benefits in itself falls outside the scope of Article 11 para. 1 (art. 11-1) (cf. paragraph 34 above), in the present circumstances it is linked to the exercise of a right guaranteed by the said provision, namely the freedom to protect the occupational interests of trade union members by trade union action. The Swedish State has in fact selected collective bargaining, the concluding of collective agreements and the recognition of the right to strike as three of the means of making possible the conduct and development of such action by trade unions in both the public and private sectors. Moreover, it was in the wake of a strike, following bargaining and within the framework of a collective agreement that the Office adopted the conduct complained of by the applicants. Accordingly, Article 14 (art. 14) is pertinent in the present context. In connection with both this question and the criteria to be adhered to, the Court refers to the judgments it delivered in the \"Linguistic\" case ( 23 July 1968, Series A no. 6, pp. 33-35, paras. 9-10) and, subsequently, in the National Union of Belgian Police case ( 27 October 1975, Series A no. 19, pp. 19-20, paras. 44-47).", "40. The applicants challenge under Articles 11 and 14 (art. 14+11), read together, the distinction under which they were allegedly victimised in comparison with non-union officials and officials belonging to unions other than SACO and SR, notably TCO-S and SF.", "Clause 18 of the collective agreement of June 1971 accorded retroactivity of benefits to these officials except insofar as they had been on strike. In support of the difference of treatment thus established between the applicants and their non-striking colleagues, whether non-union or members of other unions, the Government invoked the principle, which is traditional in Sweden and in itself uncontested by the applicants, according to which \"a strike destroys retroactivity\".", "The Court deems the application of this principle to be legitimate and it has no reason to believe that the State had other and ill-intentioned aims. In particular, the Court finds it inconceivable that the Office sought to induce the members of SACO and SR to cease all trade union membership. On the contrary, as emphasised by the Government and the Commission and as demonstrated by the Swedish Engine Drivers ’ Union case, its policy was to encourage the organisation of workers in large and centralised trade union federations. The file in the present case does not indicate either that the Office wished to incite the members of what were indeed federations of consequence, that is SACO and SR, into defecting to TCO-S and SF.", "41. Certainly, clause 18 of the collective agreement of June 1971 denied retroactivity of benefits eaven to those members of SACO and SR, including the two applicants, who had continued to carry out their professional tasks during the period in question. Nevertheless, the Government and the Commission did not err in stressing the solidarity that prevailed between the various members of these two organisations when engaged in a concerted campaign of selective industrial action. While some members were participating in person wherever strikes had been proclaimed, the other members, though discharging their duties in sectors unaffected by strike action, were providing financial and psychological support for this action.", "This reasoning clearly does not apply to non-union employees or employees belonging to organisations other than SACO or SR, who had not gone on strike. Consequently, the Court cannot accept the applicants ’ argument that the benefit of retroactivity should have been refused - or, alternatively, granted - to all staff in sectors where SACO or SR were representative.", "42. Furthermore, the Court does not consider that the principle of proportionality, as defined in the two previously cited judgments of 23 July 1968 and 27 October 1975, has been offended in the present case.", "III. AS TO THE APPLICATION OF ARTICLE 50 (art. 50)", "43. The Court, having established no failure to comply with the requirements of the Convention, finds that in the present case the question of the application of Article 50 (art. 50) of the Convention does not arise." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The first and second applicants", "9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members.", "10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail :", "“Dear Dave,", "You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.", "Instead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.", "A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.", "Each member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.", "All journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990.", "I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.", "I think you should know that the initiative to end collective bargaining has come from the editors, not the management.", "It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.", "The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.", "Yours sincerely,", "...”", "11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts.", "12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose.", "B. The other applicants", "13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement.", "14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms:", "“I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.", "You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded.", "Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position.", "If you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.", "As part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review.", "This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–", "Allowances, e.g. Height, tool, allowances, etc.,", "Holiday bonus and higher grade duty payments.", "These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.", "Overtime will be offered as and when necessary. There will be no contractual overtime.", "Under the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).", "If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ...", "The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...”", "The average pay increase offered to manual grade employees who accepted personal contracts was 10%.", "15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance.", "16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.", "17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf.", "18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants.", "19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.", "C. Proceedings before the domestic courts and tribunals", "20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below).", "21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal.", "22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97).", "In Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act.", "In Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union.", "23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining.", "24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed." ]

[ "II. RELEVANT NON-CONVENTION MATERIAL", "A. United Kingdom law", "25. According to United Kingdom law, a “trade union” is any organisation which consists wholly or mainly of workers and has the regulation of relations between workers and employers or employers' associations as one of its principal purposes (section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 – “the 1992 Act”). There is no system of licensing trade unions prior to their recognition for collective bargaining.", "26. At the time of the events in question in this case, collective bargaining was a wholly voluntary process. There was no legislation in the United Kingdom which inhibited the freedom of employers to recognise or de-recognise trade unions for the purposes of collective bargaining (the Employment Act 1980, repealing the Employment Protection Act 1975).", "27. Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 provided:", "“23(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of", "(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.”", "This provision was re-enacted as section 146(1) of the 1992 Act.", "28. After the Court of Appeal found for the applicants, Parliament enacted section 13 of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”) to amend section 148 of the 1992 Act by providing that where “the employer's purpose was to further a change in his relationship with all or any class of his employees” then, unless the employer's action was action that no reasonable employer could take, section 146(1) of the 1992 Act would provide no remedy for the employee.", "29. Although a strike by employees involves breaches of their respective contracts of employment and calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing a breach of contract of the employees concerned, section 219 of the 1992 Act confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute” (as defined; see UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I).", "B. The European Social Charter 1961", "30. Article 5 of the Social Charter provides for the following “right to organise”:", "“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”", "31. Article 6 of the Charter is headed “The right to bargain collectively” and provides:", "“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:", "(1) to promote joint consultation between workers and employers;", "(2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;", "(3) to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;", "and recognise:", "(4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”", "32. In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter examined section 13 of the 1993 Act with a view to determining whether it was consistent with Article 5 of the Charter and observed as follows (Conclusions XIII-3, Council of Europe, 1996, p. 108):", "“... the Committee was of the opinion that the wording of section 148(3)(a) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association. It considered that this weakening of the protection of freedom of association was not compatible with the requirements of Article 5. It pointed out that 'the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise, and in particular to protect workers' organisations from any interference on the part of employers' (see most recently Conclusions XII-2, p. 101). It also referred to its conclusion under Article 6 § 2 and its case-law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom (see most recently Conclusions XIII-2, p. 269).”", "33. In its next report the Committee again insisted “that the necessary measures be taken to repeal [section 13 of the 1993 Act, inter alia ]”, commenting (Conclusions XIV-I, 1998, pp. 798 and 800):", "“The Committee repeats the criticism raised in its previous conclusion with respect to section 13 of the 1993 Act which is in breach of Article 5 of the Charter as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ...”", "C. International Labour Organisation conventions and reports", "34. The United Kingdom has ratified the International Labour Organisation's (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) and its Right to Organise and Collective Bargaining Convention, 1949 (no. 98).", "35. Convention no. 87 provides, inter alia :", "“Part I. Freedom of Association", "Article 1", "Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.", "Article 2", "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.", "Article 10", "In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.", "Part II. Protection of the Right to Organise", "Article 11", "Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”", "36. Convention no. 98 provides, inter alia :", "“Article 1", "1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.", "2. Such protection shall apply more particularly in respect of acts calculated to –", "(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;", "(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.", "Article 3", "Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.", "Article 4", "Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”", "37. The ILO Committee on Freedom of Association has considered section 13 of the 1993 Act in the context of a case of alleged intimidation intended to bring about the de-recognition of two trade unions at a steel works in England, and the absence of any remedy under national law (Case no. 1852, 309th Report of the Freedom of Association Committee, Vol. LXXXI, 1998, Series B, no. 1). The Committee concluded as follows (paragraphs 337 and 341):", "“337. While bearing in mind that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee has considered that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking, provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes (see Digest, op. cit., paras. 845 and 824). While noting from the Government's observations that collective bargaining is still an option for the employer, the Committee concludes that, given the facts available in this particular case, [the employer] has by-passed the representative organisation and entered into direct individual negotiation with its employees, in a manner contrary to the principle that collective negotiation between employers and organisations of workers should be encouraged and promoted. The Committee notes with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared. The Committee hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.", "341. Finally, as concerns the previous Government's argument with respect to the relevance of section 13 of the [1993 Act], the Committee can only state that, in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation, it is not in a position to judge on the relevance of section 13 to the case in question. It would recall however that it was the Government which had raised the matter of section 13 in its initial reply to this complaint and that the conclusions reached by the Committee were based wholly upon its conclusions in a previous case presented against the United Kingdom Government for alleged infringements of trade union rights (see 294th Report, Case no. 1730) wherein it had invited the Government to reconsider section 13 in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided for in Article 4 of Convention no. 98 (ratified by the United Kingdom). The Committee recalls in this respect that section 13 directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the employer's purpose to further a change in the relationship with the employees and the Committee had concluded that this section considerably limited the tribunal's competence for determining such action as being in violation of section 146 concerning action short of dismissal (see 294th Report, Case no. 1730, para. 199). The Committee does not consider that the possible effects of section 13 have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this respect.”", "The Committee recommended, inter alia, (and its recommendations were approved by the ILO's Governing Body):", "“(a) Noting with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared, the Committee expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.", "...", "(e) The Committee once again calls on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this regard.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "38. The applicants complained that the law applicable in the United Kingdom at the relevant time failed to secure their rights under Article 11 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the protection of the rights and freedoms of others. ...”", "A. Arguments of the parties", "39. The Government relied on the Court's case-law and submitted that there is no right inherent in Article 11 to collective bargaining or for individual trade union members to receive identical benefits to those agreed between an employer and other employees who decline to be represented by the union. If the Government were required to oblige employers to offer identical benefits to all employees, regardless of union membership, there would be no scope for different unions to engage in collective bargaining to achieve better terms and conditions for their members.", "The Government submitted that, under domestic law at the relevant time, trade unions had the freedom to take action to protect their members' interests. The essence of a voluntary system of recognition and collective bargaining, such as applied in the United Kingdom, was that it remained open to each side to persuade the other that recognition should be afforded and that collective bargaining on agreed issues should take place. Where a particular trade union was not recognised by the employer, it was open to the union to take steps, including strike action, to persuade the employer to recognise it for the purposes of collective bargaining (this would fall within the definition of a “trade dispute” under section 219 of the 1992 Act – see paragraph 29 above).", "40. The applicants submitted that the right to union membership “for the protection of his interests” under Article 11 necessarily involved the rights of every employee (1) to be represented by his or her union in negotiations with the employer, and (2) not to be discriminated against for choosing to avail him- or herself of the right to be represented. In this connection, the applicants referred to the findings and recommendations of the Committee of Experts under the European Social Charter and of the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above), that the right of union representation is inherent in the right of union membership (as provided for in Article 5 of the Charter and in the ILO convention).", "However, the House of Lords' judgment made it plain that domestic law protected only the right of union membership per se, and not any of the incidents of membership, such as collective representation in contract negotiations. Unless it could be shown that an employer acted with the intention to prevent, deter or penalise membership ( per se ) of a union, there was nothing to prevent the employer discriminating against an employee who chose to take advantage of one of the incidents of membership, such as collective representation.", "B. The Court's assessment", "1. General principles", "41. The Court observes at the outset that although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights. In the present case, the matters about which the applicants complain – principally, the employers' de-recognition of the unions for collective-bargaining purposes and offers of more favourable conditions of employment to employees agreeing not to be represented by the unions – did not involve direct intervention by the State. The responsibility of the United Kingdom would, however, be engaged if these matters resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Gustafsson v. Sweden, judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, pp. 652-53, § 45).", "42. The Court reiterates that Article 11 § 1 presents trade union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, pp. 17-18, § 38, and Swedish Engine Drivers' Union v. Sweden, judgment of 6 February 1976, Series A no. 20, pp. 14-15, § 39). The words “for the protection of his interests” in Article 11 § 1 are not redundant, and the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members' interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard (see National Union of Belgian Police, cited above, p. 18, §§ 39-40, and Swedish Engine Drivers' Union, cited above, pp. 15-16, §§ 40-41). Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure the right to be heard (see National Union of Belgian Police, cited above, pp. 17-18, §§ 38-39, and Swedish Engine Drivers' Union, cited above, pp. 14-15, §§ 39-40).", "2. Application of these principles to the present case", "43. The Court notes that, at the time of the events complained of by the applicants, United Kingdom law provided for a wholly voluntary system of collective bargaining, with no legal obligation on employers to recognise trade unions for the purposes of collective bargaining. There was, therefore, no remedy in law by which the applicants could prevent the employers in the present case from de-recognising the unions and refusing to renew the collective-bargaining agreements (see paragraphs 12, 16, 19 and 26 above).", "44. However, the Court has consistently held that although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members' interests, it is not indispensable for the effective enjoyment of trade union freedom. Compulsory collective bargaining would impose on employers an obligation to conduct negotiations with trade unions. The Court has not yet been prepared to hold that the freedom of a trade union to make its voice heard extends to imposing on an employer an obligation to recognise a trade union. The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom may be secured (see Swedish Engine Drivers' Union, cited above, pp. 14-15, § 39; Gustafsson, cited above, pp. 652-53, § 45; and Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000).", "45. The Court observes that there were other measures available to the applicant trade unions by which they could further their members' interests. In particular, domestic law conferred protection on a trade union which called for or supported strike action “in contemplation or furtherance of a trade dispute” (see paragraph 29 above). The grant of the right to strike, while it may be subject to regulation, represents one of the most important of the means by which the State may secure a trade union's freedom to protect its members' occupational interests (see Schmidt and Dahlström v. Sweden, judgment of 6 February 1976, Series A no. 21, p. 16, § 36, and UNISON, cited above). Against this background, the Court does not consider that the absence, under United Kingdom law, of an obligation on employers to enter into collective bargaining gave rise, in itself, to a violation of Article 11 of the Convention.", "46. The Court agrees with the Government that the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.", "47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the unions or their members against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords' judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union.", "48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union's ability to strive for the protection of its members' interests. The Court notes that this aspect of domestic law has been the subject of criticism by the Social Charter's Committee of Independent Experts and the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "49. The applicants complained in addition that the law of the United Kingdom failed to protect their rights under Article 10 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the ... rights of others ...”", "50. The applicants complained of an interference with their freedom to hold opinions, the opinion in question being that an employee should be allowed to choose to be represented by a trade union in negotiations with the employer. The Court does not, however, consider that any separate issue arises under Article 10 that has not already been dealt with in the context of Article 11 of the Convention. It is not, therefore, necessary to examine this complaint separately.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 10 AND 11", "51. Finally, the individual applicants complained that domestic law allowed their employers to discriminate against them by virtue of their wish to continue to be represented by their unions. They relied on Articles 10 and 11 of the Convention taken in conjunction with Article 14, which states:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "52. However, in view of its findings under Article 11, the Court does not consider it necessary to examine this complaint.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "53. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "54. The Court reiterates that the principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he would have enjoyed had the violation of the Convention not occurred. The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV).", "A. Individual applicants' claims", "1. Pecuniary damage", "55. The individual applicants claimed compensation for loss of earnings, namely the loss of the pay increases which were awarded to their co-workers who signed individual contracts. The claims under this head varied from approximately 1,300 pounds sterling (GBP) to approximately GBP 14,200.", "56. The Government submitted that this claim was misconceived, because if domestic law had forbidden employers from offering incentives to employees in exchange for their agreement not to engage in collective bargaining, the obvious inference was that the employers would not have offered financial incentives to any of their employees.", "57. The Court agrees with the Government and, with reference to the principle set out in paragraph 54 above, it rejects the individual applicants' claims for pecuniary damage.", "2. Non-pecuniary damage", "58. The individual applicants claimed compensation for the injuries to their feelings they had suffered in consequence of the violation. They claimed to have experienced humiliation and loss of status through having to do the same work as colleagues at a lower rate of pay, and frustration, stress and anxiety at the incapacity of their unions to protect them, the failure of domestic law to uphold their rights and the length of the combined proceedings in the United Kingdom and before the Convention organs. The individual applicants claimed GBP 10,000 each in this respect.", "59. The Government submitted that the applicants' claims under this head were unsubstantiated. Furthermore, even if it were appropriate to award compensation for emotional distress on the basis of inference alone, it was more likely that the applicants, each of whom exercised a free choice on a point of principle, did not thereby suffer any emotional hardship. Since the applicants had not made any complaint under Article 6 § 1 of the Convention about the length of the proceedings, and since therefore no court had determined who was responsible for the length of the proceedings, it was not open to them to claim compensation in that respect.", "60. The Court reiterates that claims for just satisfaction must, in general, be supported by independent evidence. Thus, Rule 60 § 2 of the Rules of Court provides that:", "“Itemised particulars of all claims made, together with the relevant supporting documents or vouchers, shall be submitted, failing which the Chamber may reject the claim in whole or in part.”", "However, some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 44, § 96). This does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (ibid.).", "61. The Court sees some force in the argument that, having exercised a free choice on a point of ideological principle, it is difficult to believe that the applicants thereby suffered humiliation and loss of status. However, the violation and the ensuing unsuccessful attempts to put it right before the national courts must have caused the applicants justifiable anger, frustration and emotional distress. The Court considers that, on an equitable basis, each individual applicant should be awarded 7,730 euros (EUR) in this respect.", "B. Applicant trade unions' claims", "62. The applicant trade unions claimed compensation for losses that they claimed followed from the perception, created by the violation in this case, that they were unable effectively to protect their members' interests. Each union claimed for loss of revenue caused by falling membership at Associated Newspapers and Associated British Ports respectively: GBP 178,363 for the NUJ and GBP 298,264 for the NURMTW. Each union in addition maintained that it should be awarded GBP 100,000 to compensate it for loss of credibility and status.", "63. The Government pointed out that the applicant trade unions had not established any causal link between the violation and the unparticularised and unsubstantiated losses in respect of which they claimed compensation. They pointed out that levels of trade union membership are inevitably affected by a range of factors, including levels of employment in the industries concerned.", "64. The Court is not satisfied that the losses complained of by the applicant trade unions were caused by the violation it has found in this case. It therefore rejects the applicant trade unions' claims for financial compensation for pecuniary and non-pecuniary damage.", "C. Legal costs and expenses", "65. The applicant trade unions paid the legal costs and expenses of the individual applicants before the national courts and tribunals, and their own and the individual applicants' costs before the Convention organs. They claimed reimbursement of these costs, inclusive of value-added tax (VAT), as follows:", "(1) first applicant's costs of bringing proceedings in the United Kingdom courts, from the Employment Tribunal to the House of Lords: GBP 85,172.23;", "(2) third and fourth applicants' costs of bringing proceedings from the Employment Tribunal to the House of Lords: GBP 73,633.76;", "(3) fifth to twelfth applicants' costs in the Employment Tribunal: GBP 3,865.75;", "(4) total costs paid by the first, third and fourth applicants to their employers as a result of the House of Lords' judgment: GBP 159,915.46;", "(5) first and second applicants' costs and expenses before the Convention organs: GBP 98,700.89;", "(6) third to thirteenth applicants' costs and expenses before the Convention organs: GBP 51,229.85.", "66. The Government submitted that the applicants were not entitled to be reimbursed any part of the costs of the domestic proceedings, because these proceedings were not concerned with the issues arising under the Convention. In any event, the Government pointed out that, since the applicants had not provided any substantiation in respect of their claims for domestic costs, the Court should make no award under this head.", "Likewise, the Government observed that the claims for the costs of the Convention proceedings were not accompanied by any detailed evidence as to how the costs were incurred. If the Court nonetheless wished to make an award, GBP 20,000 would be more than sufficient.", "67. The Court reiterates that the established principle in relation to domestic legal costs is that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress the breach of the Convention found by the Court, to the extent that the costs are reasonable as to quantum (see Kingsley, cited above, § 49). It considers that the issue in the domestic proceedings, whether the requirement to renounce the right to union representation in order to receive a pay rise amounted to “action (short of dismissal) ... for the purpose of preventing or deterring” trade union membership, was sufficiently close to that arising under Article 11 as to justify in principle the reimbursement of the applicants' domestic costs. It was reasonable for the applicants to proceed on the basis that the 1978 Act would not permit action by employers which was inconsistent with Article 11 rights.", "68. However, as mentioned in paragraph 60 above, all claims for just satisfaction must show particulars and be supported by relevant documentation, failing which the Chamber may reject the claim in whole or in part. The applicants have not submitted itemised bills of costs to the Court in respect of their claims. Without details of the work done and the hourly rates charged, it is not possible for the Court to determine whether the costs were necessarily incurred and reasonable as to quantum. In these circumstances, the Court is prepared to award only a total of 76,500 EUR in respect of the applicants' domestic costs, plus any VAT which may be chargeable.", "69. The applicants' claims for costs before the Convention organs are similarly unsubstantiated and do not show any particulars. The Court awards a total of 45,750 EUR under this head, plus any VAT which may be chargeable.", "D. Default interest", "70. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The first and second applicants", "9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members.", "10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail :", "“Dear Dave,", "You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body.", "Instead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases.", "A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement.", "Each member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure.", "All journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990.", "I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers.", "I think you should know that the initiative to end collective bargaining has come from the editors, not the management.", "It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper.", "The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists.", "Yours sincerely,", "...”", "11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts.", "12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose.", "B. The other applicants", "13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement.", "14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms:", "“I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991.", "You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded.", "Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position.", "If you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%.", "As part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review.", "This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:–", "Allowances, e.g. Height, tool, allowances, etc.,", "Holiday bonus and higher grade duty payments.", "These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay.", "Overtime will be offered as and when necessary. There will be no contractual overtime.", "Under the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS).", "If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ...", "The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...”", "The average pay increase offered to manual grade employees who accepted personal contracts was 10%.", "15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance.", "16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.", "17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf.", "18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants.", "19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes.", "C. Proceedings before the domestic courts and tribunals", "20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below).", "21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal.", "22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97).", "In Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act.", "In Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union.", "23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining.", "24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed." ]

[ "II. RELEVANT NON-CONVENTION MATERIAL", "A. United Kingdom law", "25. According to United Kingdom law, a “trade union” is any organisation which consists wholly or mainly of workers and has the regulation of relations between workers and employers or employers' associations as one of its principal purposes (section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 – “the 1992 Act”). There is no system of licensing trade unions prior to their recognition for collective bargaining.", "26. At the time of the events in question in this case, collective bargaining was a wholly voluntary process. There was no legislation in the United Kingdom which inhibited the freedom of employers to recognise or de-recognise trade unions for the purposes of collective bargaining (the Employment Act 1980, repealing the Employment Protection Act 1975).", "27. Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 provided:", "“23(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of", "(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.”", "This provision was re-enacted as section 146(1) of the 1992 Act.", "28. After the Court of Appeal found for the applicants, Parliament enacted section 13 of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”) to amend section 148 of the 1992 Act by providing that where “the employer's purpose was to further a change in his relationship with all or any class of his employees” then, unless the employer's action was action that no reasonable employer could take, section 146(1) of the 1992 Act would provide no remedy for the employee.", "29. Although a strike by employees involves breaches of their respective contracts of employment and calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing a breach of contract of the employees concerned, section 219 of the 1992 Act confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute” (as defined; see UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I).", "B. The European Social Charter 1961", "30. Article 5 of the Social Charter provides for the following “right to organise”:", "“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”", "31. Article 6 of the Charter is headed “The right to bargain collectively” and provides:", "“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:", "(1) to promote joint consultation between workers and employers;", "(2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;", "(3) to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;", "and recognise:", "(4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”", "32. In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter examined section 13 of the 1993 Act with a view to determining whether it was consistent with Article 5 of the Charter and observed as follows (Conclusions XIII-3, Council of Europe, 1996, p. 108):", "“... the Committee was of the opinion that the wording of section 148(3)(a) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association. It considered that this weakening of the protection of freedom of association was not compatible with the requirements of Article 5. It pointed out that 'the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise, and in particular to protect workers' organisations from any interference on the part of employers' (see most recently Conclusions XII-2, p. 101). It also referred to its conclusion under Article 6 § 2 and its case-law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom (see most recently Conclusions XIII-2, p. 269).”", "33. In its next report the Committee again insisted “that the necessary measures be taken to repeal [section 13 of the 1993 Act, inter alia ]”, commenting (Conclusions XIV-I, 1998, pp. 798 and 800):", "“The Committee repeats the criticism raised in its previous conclusion with respect to section 13 of the 1993 Act which is in breach of Article 5 of the Charter as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ...”", "C. International Labour Organisation conventions and reports", "34. The United Kingdom has ratified the International Labour Organisation's (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) and its Right to Organise and Collective Bargaining Convention, 1949 (no. 98).", "35. Convention no. 87 provides, inter alia :", "“Part I. Freedom of Association", "Article 1", "Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.", "Article 2", "Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.", "Article 10", "In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.", "Part II. Protection of the Right to Organise", "Article 11", "Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”", "36. Convention no. 98 provides, inter alia :", "“Article 1", "1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.", "2. Such protection shall apply more particularly in respect of acts calculated to –", "(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;", "(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.", "Article 3", "Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.", "Article 4", "Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”", "37. The ILO Committee on Freedom of Association has considered section 13 of the 1993 Act in the context of a case of alleged intimidation intended to bring about the de-recognition of two trade unions at a steel works in England, and the absence of any remedy under national law (Case no. 1852, 309th Report of the Freedom of Association Committee, Vol. LXXXI, 1998, Series B, no. 1). The Committee concluded as follows (paragraphs 337 and 341):", "“337. While bearing in mind that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee has considered that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking, provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes (see Digest, op. cit., paras. 845 and 824). While noting from the Government's observations that collective bargaining is still an option for the employer, the Committee concludes that, given the facts available in this particular case, [the employer] has by-passed the representative organisation and entered into direct individual negotiation with its employees, in a manner contrary to the principle that collective negotiation between employers and organisations of workers should be encouraged and promoted. The Committee notes with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared. The Committee hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.", "341. Finally, as concerns the previous Government's argument with respect to the relevance of section 13 of the [1993 Act], the Committee can only state that, in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation, it is not in a position to judge on the relevance of section 13 to the case in question. It would recall however that it was the Government which had raised the matter of section 13 in its initial reply to this complaint and that the conclusions reached by the Committee were based wholly upon its conclusions in a previous case presented against the United Kingdom Government for alleged infringements of trade union rights (see 294th Report, Case no. 1730) wherein it had invited the Government to reconsider section 13 in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided for in Article 4 of Convention no. 98 (ratified by the United Kingdom). The Committee recalls in this respect that section 13 directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the employer's purpose to further a change in the relationship with the employees and the Committee had concluded that this section considerably limited the tribunal's competence for determining such action as being in violation of section 146 concerning action short of dismissal (see 294th Report, Case no. 1730, para. 199). The Committee does not consider that the possible effects of section 13 have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this respect.”", "The Committee recommended, inter alia, (and its recommendations were approved by the ILO's Governing Body):", "“(a) Noting with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared, the Committee expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard.", "...", "(e) The Committee once again calls on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this regard.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "38. The applicants complained that the law applicable in the United Kingdom at the relevant time failed to secure their rights under Article 11 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the protection of the rights and freedoms of others. ...”", "A. Arguments of the parties", "39. The Government relied on the Court's case-law and submitted that there is no right inherent in Article 11 to collective bargaining or for individual trade union members to receive identical benefits to those agreed between an employer and other employees who decline to be represented by the union. If the Government were required to oblige employers to offer identical benefits to all employees, regardless of union membership, there would be no scope for different unions to engage in collective bargaining to achieve better terms and conditions for their members.", "The Government submitted that, under domestic law at the relevant time, trade unions had the freedom to take action to protect their members' interests. The essence of a voluntary system of recognition and collective bargaining, such as applied in the United Kingdom, was that it remained open to each side to persuade the other that recognition should be afforded and that collective bargaining on agreed issues should take place. Where a particular trade union was not recognised by the employer, it was open to the union to take steps, including strike action, to persuade the employer to recognise it for the purposes of collective bargaining (this would fall within the definition of a “trade dispute” under section 219 of the 1992 Act – see paragraph 29 above).", "40. The applicants submitted that the right to union membership “for the protection of his interests” under Article 11 necessarily involved the rights of every employee (1) to be represented by his or her union in negotiations with the employer, and (2) not to be discriminated against for choosing to avail him- or herself of the right to be represented. In this connection, the applicants referred to the findings and recommendations of the Committee of Experts under the European Social Charter and of the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above), that the right of union representation is inherent in the right of union membership (as provided for in Article 5 of the Charter and in the ILO convention).", "However, the House of Lords' judgment made it plain that domestic law protected only the right of union membership per se, and not any of the incidents of membership, such as collective representation in contract negotiations. Unless it could be shown that an employer acted with the intention to prevent, deter or penalise membership ( per se ) of a union, there was nothing to prevent the employer discriminating against an employee who chose to take advantage of one of the incidents of membership, such as collective representation.", "B. The Court's assessment", "1. General principles", "41. The Court observes at the outset that although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights. In the present case, the matters about which the applicants complain – principally, the employers' de-recognition of the unions for collective-bargaining purposes and offers of more favourable conditions of employment to employees agreeing not to be represented by the unions – did not involve direct intervention by the State. The responsibility of the United Kingdom would, however, be engaged if these matters resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Gustafsson v. Sweden, judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, pp. 652-53, § 45).", "42. The Court reiterates that Article 11 § 1 presents trade union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, pp. 17-18, § 38, and Swedish Engine Drivers' Union v. Sweden, judgment of 6 February 1976, Series A no. 20, pp. 14-15, § 39). The words “for the protection of his interests” in Article 11 § 1 are not redundant, and the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members' interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard (see National Union of Belgian Police, cited above, p. 18, §§ 39-40, and Swedish Engine Drivers' Union, cited above, pp. 15-16, §§ 40-41). Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure the right to be heard (see National Union of Belgian Police, cited above, pp. 17-18, §§ 38-39, and Swedish Engine Drivers' Union, cited above, pp. 14-15, §§ 39-40).", "2. Application of these principles to the present case", "43. The Court notes that, at the time of the events complained of by the applicants, United Kingdom law provided for a wholly voluntary system of collective bargaining, with no legal obligation on employers to recognise trade unions for the purposes of collective bargaining. There was, therefore, no remedy in law by which the applicants could prevent the employers in the present case from de-recognising the unions and refusing to renew the collective-bargaining agreements (see paragraphs 12, 16, 19 and 26 above).", "44. However, the Court has consistently held that although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members' interests, it is not indispensable for the effective enjoyment of trade union freedom. Compulsory collective bargaining would impose on employers an obligation to conduct negotiations with trade unions. The Court has not yet been prepared to hold that the freedom of a trade union to make its voice heard extends to imposing on an employer an obligation to recognise a trade union. The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom may be secured (see Swedish Engine Drivers' Union, cited above, pp. 14-15, § 39; Gustafsson, cited above, pp. 652-53, § 45; and Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000).", "45. The Court observes that there were other measures available to the applicant trade unions by which they could further their members' interests. In particular, domestic law conferred protection on a trade union which called for or supported strike action “in contemplation or furtherance of a trade dispute” (see paragraph 29 above). The grant of the right to strike, while it may be subject to regulation, represents one of the most important of the means by which the State may secure a trade union's freedom to protect its members' occupational interests (see Schmidt and Dahlström v. Sweden, judgment of 6 February 1976, Series A no. 21, p. 16, § 36, and UNISON, cited above). Against this background, the Court does not consider that the absence, under United Kingdom law, of an obligation on employers to enter into collective bargaining gave rise, in itself, to a violation of Article 11 of the Convention.", "46. The Court agrees with the Government that the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.", "47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the unions or their members against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords' judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union.", "48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union's ability to strive for the protection of its members' interests. The Court notes that this aspect of domestic law has been the subject of criticism by the Social Charter's Committee of Independent Experts and the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "49. The applicants complained in addition that the law of the United Kingdom failed to protect their rights under Article 10 of the Convention, the relevant parts of which provide:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the ... rights of others ...”", "50. The applicants complained of an interference with their freedom to hold opinions, the opinion in question being that an employee should be allowed to choose to be represented by a trade union in negotiations with the employer. The Court does not, however, consider that any separate issue arises under Article 10 that has not already been dealt with in the context of Article 11 of the Convention. It is not, therefore, necessary to examine this complaint separately.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 10 AND 11", "51. Finally, the individual applicants complained that domestic law allowed their employers to discriminate against them by virtue of their wish to continue to be represented by their unions. They relied on Articles 10 and 11 of the Convention taken in conjunction with Article 14, which states:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "52. However, in view of its findings under Article 11, the Court does not consider it necessary to examine this complaint.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "53. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "54. The Court reiterates that the principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he would have enjoyed had the violation of the Convention not occurred. The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV).", "A. Individual applicants' claims", "1. Pecuniary damage", "55. The individual applicants claimed compensation for loss of earnings, namely the loss of the pay increases which were awarded to their co-workers who signed individual contracts. The claims under this head varied from approximately 1,300 pounds sterling (GBP) to approximately GBP 14,200.", "56. The Government submitted that this claim was misconceived, because if domestic law had forbidden employers from offering incentives to employees in exchange for their agreement not to engage in collective bargaining, the obvious inference was that the employers would not have offered financial incentives to any of their employees.", "57. The Court agrees with the Government and, with reference to the principle set out in paragraph 54 above, it rejects the individual applicants' claims for pecuniary damage.", "2. Non-pecuniary damage", "58. The individual applicants claimed compensation for the injuries to their feelings they had suffered in consequence of the violation. They claimed to have experienced humiliation and loss of status through having to do the same work as colleagues at a lower rate of pay, and frustration, stress and anxiety at the incapacity of their unions to protect them, the failure of domestic law to uphold their rights and the length of the combined proceedings in the United Kingdom and before the Convention organs. The individual applicants claimed GBP 10,000 each in this respect.", "59. The Government submitted that the applicants' claims under this head were unsubstantiated. Furthermore, even if it were appropriate to award compensation for emotional distress on the basis of inference alone, it was more likely that the applicants, each of whom exercised a free choice on a point of principle, did not thereby suffer any emotional hardship. Since the applicants had not made any complaint under Article 6 § 1 of the Convention about the length of the proceedings, and since therefore no court had determined who was responsible for the length of the proceedings, it was not open to them to claim compensation in that respect.", "60. The Court reiterates that claims for just satisfaction must, in general, be supported by independent evidence. Thus, Rule 60 § 2 of the Rules of Court provides that:", "“Itemised particulars of all claims made, together with the relevant supporting documents or vouchers, shall be submitted, failing which the Chamber may reject the claim in whole or in part.”", "However, some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 44, § 96). This does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (ibid.).", "61. The Court sees some force in the argument that, having exercised a free choice on a point of ideological principle, it is difficult to believe that the applicants thereby suffered humiliation and loss of status. However, the violation and the ensuing unsuccessful attempts to put it right before the national courts must have caused the applicants justifiable anger, frustration and emotional distress. The Court considers that, on an equitable basis, each individual applicant should be awarded 7,730 euros (EUR) in this respect.", "B. Applicant trade unions' claims", "62. The applicant trade unions claimed compensation for losses that they claimed followed from the perception, created by the violation in this case, that they were unable effectively to protect their members' interests. Each union claimed for loss of revenue caused by falling membership at Associated Newspapers and Associated British Ports respectively: GBP 178,363 for the NUJ and GBP 298,264 for the NURMTW. Each union in addition maintained that it should be awarded GBP 100,000 to compensate it for loss of credibility and status.", "63. The Government pointed out that the applicant trade unions had not established any causal link between the violation and the unparticularised and unsubstantiated losses in respect of which they claimed compensation. They pointed out that levels of trade union membership are inevitably affected by a range of factors, including levels of employment in the industries concerned.", "64. The Court is not satisfied that the losses complained of by the applicant trade unions were caused by the violation it has found in this case. It therefore rejects the applicant trade unions' claims for financial compensation for pecuniary and non-pecuniary damage.", "C. Legal costs and expenses", "65. The applicant trade unions paid the legal costs and expenses of the individual applicants before the national courts and tribunals, and their own and the individual applicants' costs before the Convention organs. They claimed reimbursement of these costs, inclusive of value-added tax (VAT), as follows:", "(1) first applicant's costs of bringing proceedings in the United Kingdom courts, from the Employment Tribunal to the House of Lords: GBP 85,172.23;", "(2) third and fourth applicants' costs of bringing proceedings from the Employment Tribunal to the House of Lords: GBP 73,633.76;", "(3) fifth to twelfth applicants' costs in the Employment Tribunal: GBP 3,865.75;", "(4) total costs paid by the first, third and fourth applicants to their employers as a result of the House of Lords' judgment: GBP 159,915.46;", "(5) first and second applicants' costs and expenses before the Convention organs: GBP 98,700.89;", "(6) third to thirteenth applicants' costs and expenses before the Convention organs: GBP 51,229.85.", "66. The Government submitted that the applicants were not entitled to be reimbursed any part of the costs of the domestic proceedings, because these proceedings were not concerned with the issues arising under the Convention. In any event, the Government pointed out that, since the applicants had not provided any substantiation in respect of their claims for domestic costs, the Court should make no award under this head.", "Likewise, the Government observed that the claims for the costs of the Convention proceedings were not accompanied by any detailed evidence as to how the costs were incurred. If the Court nonetheless wished to make an award, GBP 20,000 would be more than sufficient.", "67. The Court reiterates that the established principle in relation to domestic legal costs is that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress the breach of the Convention found by the Court, to the extent that the costs are reasonable as to quantum (see Kingsley, cited above, § 49). It considers that the issue in the domestic proceedings, whether the requirement to renounce the right to union representation in order to receive a pay rise amounted to “action (short of dismissal) ... for the purpose of preventing or deterring” trade union membership, was sufficiently close to that arising under Article 11 as to justify in principle the reimbursement of the applicants' domestic costs. It was reasonable for the applicants to proceed on the basis that the 1978 Act would not permit action by employers which was inconsistent with Article 11 rights.", "68. However, as mentioned in paragraph 60 above, all claims for just satisfaction must show particulars and be supported by relevant documentation, failing which the Chamber may reject the claim in whole or in part. The applicants have not submitted itemised bills of costs to the Court in respect of their claims. Without details of the work done and the hourly rates charged, it is not possible for the Court to determine whether the costs were necessarily incurred and reasonable as to quantum. In these circumstances, the Court is prepared to award only a total of 76,500 EUR in respect of the applicants' domestic costs, plus any VAT which may be chargeable.", "69. The applicants' claims for costs before the Convention organs are similarly unsubstantiated and do not show any particulars. The Court awards a total of 45,750 EUR under this head, plus any VAT which may be chargeable.", "D. Default interest", "70. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum." ]

[ "2. The years of the applicants’ birth, registration or establishment and their places of residence or seat are indicated in the appended table. They were represented by Mr W. Däubler, Dußlingen (first applicant), Mr F. Schorkopf, Göttingen (second applicant) and Mr U. Fischer, Frankfurt a.M. (applicants in the third to fifth applications).", "3. The Government were represented by one of their Agents, Mr H. ‑ J. Behrens, of the Federal Ministry of Justice and Consumer Protection, and by Mr T. Giegerich, Professor at Saarland University.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The first applicant, Association of Civil Servants and Union for Collective Bargaining ( Beamtenbund und Tarifunion (dbb) ), is a confederation of trade unions and associations of the public service and the private service sector. One of its missions is to negotiate collective agreements for the members of its member unions.", "6. The second applicant, Marburger Bund – Association of Employed and State-employed Physicians in Germany, concludes collective agreements for its members, employed physicians, since 2006.", "7. The third applicant, the Trade Union of German Train Drivers ( GDL ) is the oldest trade union in Germany, whose mission it is to conclude collective agreements for its members, railway traffic employees.", "8. The applicants in the fourth case (Ms Melanie Angert and others) and in the fifth application (Mr Sven Ratih) are members of the third applicant trade union.", "BACKGROUND TO THE ADOPTION OF THE UNIFORMITY OF COLLECTIVE AGREEMENTS ACT", "9. A company may negotiate with different trade unions representing employees of that company and may conclude several collective agreements covering employees working in the same business unit of the company ( Betrieb ) with these trade unions. This may lead to conflicts where several collective agreements with diverging provisions cover employees in similar positions in that business unit (these are known as “conflicting collective agreements”). In that event, the Federal Labour Court had initially considered in its case-law, from 1957 onwards, that only the collective agreement which was most specifically tailored to the business unit in question remained applicable. In 2010 that court reversed its case-law (to which there had previously been some exceptions), which it then considered to lack a sufficient legal basis, and permitted different collective agreements to apply to employees in similar positions in one business unit of a company, depending on the relevant employee’s trade union membership.", "10. On 3 July 2015, consequently, the legislature adopted the Uniformity of Collective Agreements Act, which entered into force on 10 July 2015, to provide for a new solution in case of conflicting collective agreements. Under this Act, which, in particular, inserted a new section 4a into the Collective Agreements Act ( Tarifvertragsgesetz, see paragraph 27 below), only the collective agreement concluded by the trade union which has the highest number of members employed within the business unit of the company concerned remains applicable; other collective agreements become inapplicable (section 4a § 2, second sentence).", "11. The union whose collective agreement became inapplicable has the right to adopt the legal provisions of the majority union’s collective agreement ( Nachzeichnung ). Moreover, if the employing company engages in collective bargaining, it has to inform the other trade unions in that company, and all unions have the right to present their demands to the employer (section 4a §§ 4 and 5 of the Collective Agreements Act; see details in paragraph 27 below).", "12. Furthermore, the Uniformity of Collective Agreements Act inserted sections 2a § 1 no. 6 and 99 into the Labour Courts Act (see in detail paragraph 30 below). They establish the procedure for determining which of the conflicting collective agreements is applicable in a given business unit.", "THE PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT", "13. The applicants lodged a constitutional complaint with the Federal Constitutional Court directly targeting the Uniformity of Collective Agreements Act, arguing that the legal provisions as amended by this Act breached, in particular, their right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law.", "14. In a leading judgment of 11 July 2017 on the first and second applicants’ constitutional complaints, inter alia, the Federal Constitutional Court found, by six votes to two, that section 4a of the Collective Agreements Act as amended by the Uniformity of Collective Agreements Act was incompatible with Article 9 § 3 of the Basic Law in one respect only. The provision did not contain sufficient safeguards to ensure that the interests of those professional groups whose collective agreement became inapplicable under section 4a § 2, second sentence, were sufficiently taken into account in the applicable collective agreement. Apart from this, the Uniformity of Collective Agreements Act, interpreted in line with the reasons given in the Constitutional Court’s judgment, was compatible with the Basic Law, and the applicants’ constitutional complaints were thus essentially dismissed (file no. 1 BvR 1571/15 and others).", "15. The Federal Constitutional Court found that the first and second applicants had themselves been directly affected, already at that stage, by the impugned provisions, as the latter had required them to take into account, in their current collective bargaining policy and organisational structure, the potential inapplicability of any future collective agreements negotiated by them. They therefore had standing to lodge a constitutional complaint.", "16. The court further found that section 4a § 2, second sentence, of the Collective Agreements Act considerably impaired the right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law. The provision led to the inapplicability of the provisions of a collective agreement resulting from a trade union’s collective bargaining. The members of the trade union in question were accordingly left without a collective agreement.", "17. Moreover, the provision led to trade unions which were in a minority position in a company no longer being considered as a serious collective bargaining partner by the employer. This weakened those trade unions’ ability to attract new members and to mobilise their members to strike. Furthermore, the trade unions’ freedom of association was impaired in that they might be obliged to disclose the number of their members in a business unit in labour court proceedings to determine the majority union ( see section 2a § 1 no. 6 and 99 of the Labour Courts Act, at paragraph 30 below), and thus their strength in the event of industrial action. Moreover, the provision affected their decisions on their negotiation policy and profile, and particularly on the professional groups they wished to represent. However, the provision did not curtail a trade union’s right to strike even where it was known in advance that the trade union taking industrial action had a smaller number of members than another trade union in the company concerned.", "18. The interferences with the right to freedom of association by the impugned provisions, interpreted in the light of the Basic Law, fell, for the most part, within the State’s margin of appreciation and were thus justified.", "19. Freedom of association could be restricted by legal provisions regulating the relationship between competing trade unions. The impugned provisions pursued the important legitimate aim of ensuring that a fair balance was struck in collective agreements on working and economic conditions and thus safeguarding the operation of the system of autonomous collective bargaining ( Tarifautonomie ). They aimed at influencing trade unions’ activities by encouraging them to cooperate and avoid negotiating different collective agreements for employees in similar positions. Fair collective bargaining would be jeopardised if employees with key positions in a business unit negotiated their working and economic conditions separately and thereby impaired the other employees’ ability to negotiate on an equal footing with the employer.", "20. The court stated that, in order to be proportionate, the impugned provisions had to be interpreted restrictively. Firstly, all parties to collective agreements in a business unit could agree on the agreement of a minority trade union not becoming inapplicable under section 4a § 2, second sentence, of the Collective Agreements Act where several conflicting collective agreements had been concluded. Furthermore, a collective agreement only became inapplicable in certain circumstances, that is to say if, and for as long as, there was an overlap with the majority union’s agreement as regards the place, time, business unit and employees’ position covered and if at least part of the provisions on working conditions differed in the agreements (conflicting collective agreements). Even where such a conflict occurred, long-term benefits or guarantees concerning the personal life planning agreed upon in a minority’s collective agreement, such as longer-term contributions to a pension, job guarantees or provisions on the duration of working life, could not be rendered inapplicable unless there was a comparable benefit or guarantee in the majority’s agreement.", "21. Moreover, the right to adopt the majority union’s collective agreement under section 4a § 4 of the Collective Agreements Act was to be interpreted broadly and applied to the majority’s agreement in its entirety and not only to the issues in respect of which the agreements overlapped. Furthermore, a collective agreement did not become inapplicable where the rules on notification of collective bargaining and on hearing other competing trade unions (section 4a § 5 of the Collective Agreements Act), which served to safeguard the minority unions’ rights under Article 9 § 3 of the Basic Law, had not been respected. Finally, the proceedings under section 99 of the Labour Courts Act had to be led in such a way as to avoid, as far as possible, disclosing the number of members in a given trade union. This could be achieved by a notary certifying only the fact which union organises the majority of employees in a business unit, without disclosing the names and number of members of the trade unions concerned.", "22. Section 4a § 2, second sentence, of the Collective Agreements Act was, however, disproportionate in so far as it did not provide for safeguards against neglecting the interests of employees in particular professions or sectors by the majority trade union (in which these employees may be un- or under-represented) in the collective agreement negotiated by that union. That provision remained applicable until it was amended by the legislature (until 31 December 2018 at the latest), with the proviso that a collective agreement could only become inapplicable if it had been substantiated that the majority trade union had seriously and effectively taken into account the interests of the professional groups whose collective agreement became inapplicable.", "23. Rules of public international law, including, inter alia, Article 11 of the Convention and the European Social Charter, contained no guarantees going beyond the protection provided by Article 9 § 3 of the Basic Law.", "24. By decision of 10 August 2017, served on counsel for the applicants on 28 September 2017, the Federal Constitutional Court, referring to its leading judgment of 11 July 2017, declined to consider the constitutional complaints by the applicants in the third to fifth applications (file no. 1 BvR 1803/15)." ]

[ "RELEVANT LEGAL FRAMEWORK", "THE DOMESTIC LEGAL FRAMEWORKProvision of the Basic Law", "Provision of the Basic Law", "Provision of the Basic Law", "25. Article 9 of the Basic Law, on freedom of association, in so far as relevant, provides:", "“(3) The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every profession. Agreements which restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful. ...”", "Provisions of the Collective Agreements Act and the Uniformity of Collective Agreements Act", "26. Under section 3 § 1 of the Collective Agreements Act collective agreements bind the employer and the members of the trade union having concluded the agreement.", "27. Section 4a of the Collective Agreements Act, on conflicting collective agreements ( Tarifkollision ), as amended by the Uniformity of Collective Agreements Act and in force at the relevant time, provides:", "“(1) In order to maintain the protection function, the distribution function, the pacification function and the ordering function of legal provisions of a collective agreement, conflicting collective agreements shall be prevented in a business unit.", "(2) In accordance with section 3, an employer may be bound by several collective agreements with different trade unions. To the extent that the scopes of application of collective agreements of different trade unions which are not identical in content overlap in one business unit (conflicting collective agreements), only the legal provisions of the collective agreement shall apply which was concluded by the trade union that organised the majority of employees in that business unit at the time when the last conflicting collective agreement was concluded. ...", "(4) A trade union may request the employer or confederation of employers that it may subsequently adopt the legal provisions of the collective agreement which is conflicting with the agreement it had concluded ( Nachzeichnung ). ...", "(5) If an employer or confederation of employers starts negotiations with a trade union on the conclusion of a collective agreement, the employer or confederation of employers is obliged to give notice thereof in due time and in an adequate manner. A different trade union, whose tasks under their statute comprises the conclusion of collective agreements ..., is entitled to present its expectations and demands to the employer or confederation of employers orally.”", "28. According to the Explanatory Memorandum to the draft Uniformity of Collective Agreements Act submitted by the Government to the Federal Parliament, the objective of the Act was to ensure the proper functioning of the system of collective bargaining by preventing conflicting collective agreements. The Act is aimed at safeguarding the ordering, distribution, protection and pacification functions of collective agreements. Those functions would be endangered if conflicting collective agreements applied which did not reflect the value of the work performed by different employees, but the key or other position of the respective employees in the business unit. The Act should notably prevent trade unions representing employees in key positions from negotiating collective agreements to the detriment of other employees, thus preserving solidarity between employees. It should further facilitate the conclusion of an overall compromise within a business unit, which was important, in particular, in times of economic crisis for saving jobs. The provisions of the Act are supposed to encourage trade unions to avoid concluding conflicting collective agreements for employees in similar positions. Different ways of avoiding conflicting collective agreements proposed by several experts were not considered equally suitable to achieve this aim (see German Federal Parliament, Parliamentary publication no. 18/4062 of 20 February 2015, pp. 8 et seq. ).", "29. By an Act which entered into force on 1 January 2019 (Federal Law Gazette [ Bundesgesetzblatt ] I, p. 2651), the legislator amended section 4a § 2 of the Collective Agreements Act in order to comply with the Federal Constitutional Court’s judgment. Section 4a § 2, as amended, provides, in addition, that the legal provisions of a collective agreement concluded by a minority union remain applicable if, when concluding the collective agreement of the majority union, the interests of groups of employees also covered by the agreement of the minority union were not seriously and effectively considered.", "Provisions of the Labour Courts Act", "30. Section 2a § 1 no. 6 of the Labour Courts Act, as inserted by the Uniformity of Collective Agreements Act, provides that the labour courts have sole jurisdiction to determine which of several conflicting collective agreements was applicable in a business unit under section 4a § 2, second sentence, of the Collective Agreements Act. The newly inserted section 99 of the Labour Courts Act lays down the procedure in that regard. It provides, in particular, that proceedings may be instituted at the request of one of the parties to a conflicting collective agreement. The final decision as to which collective agreement is applicable in a business unit concerned has erga omnes effect.", "INTERNATIONAL LAW AND PRACTICE", "31. International bodies made, inter alia, the following findings in respect of national legal systems requiring trade unions to meet certain representativeness criteria for collective bargaining and concluding collective agreements.", "32. The International Labour Organization (ILO) Committee on Freedom of Association (CFA), having regard, inter alia, to the Right to Organise and Collective Bargaining Convention (No. 98), 1949, ratified by Germany, summarised its practice in this regard as follows:", "“1350. The Collective Bargaining Recommendation, 1981 (No. 163), enumerates various means of promoting collective bargaining, including the recognition of representative employers’ and workers’ organizations (Paragraph 3(a)). ...", "1351. Systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. ...", "1360. Systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98. ...", "1387. The Committee has recalled the position of the Committee of Experts on the Application of Conventions and Recommendations that, where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances” (see ILO CFA, Compilation of decisions (2018), with further references)", "33. The European Committee of Social Rights (ECSR) found in respect of the right to bargain collectively under Article 6 of the European Social Charter (ratified by Germany at the relevant time in its original 1961 version):", "“It is open to States Parties to require trade unions to meet an obligation of representativeness subject to certain conditions. With respect to Article 6 § 2 such a requirement must not excessively limit the possibility of trade unions to participate effectively in collective bargaining. In order to be in conformity with Article 6 § 2, the criteria of representativeness should be prescribed by law, should be objective and reasonable and subject to judicial review which offers appropriate protection against arbitrary refusals. ...” (see Digest of the Case Law of the ECSR of December 2018, p. 100, with further references)", "THE LAW", "JOINDER OF THE APPLICATIONS", "34. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "35. The applicants complained that the impugned provisions of the Uniformity of Collective Agreements Act violated their right to form and join trade unions, including a right to collective bargaining, as provided in Article 11 of the Convention, which reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "Admissibility", "36. The parties agreed, in particular, that the applicants could all claim to be victims, for the purposes of Article 34 of the Convention, of a breach of Article 11 directly by the impugned provisions of the Uniformity of Collective Agreements Act.", "37. The Court notes that in order to be able to claim to be a victim of a Convention violation, for the purposes of Article 34, a person or group of individuals must be directly affected by the impugned measure (see for a comprehensive recapitulation of the relevant case-law in this regard Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.), no. 37857/14, §§ 37-39, 7 December 2021). It is, however, open to a person to contend that a law violates his or her rights, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34, if he or she is required to either modify his or her conduct or risk being prosecuted, or if he or she is a member of a class of people who risk being directly affected by the legislation (see, inter alia, Burden v. the United Kingdom [GC], no. 13378/05, §§ 33-34, ECHR 2008, and Michaud v. France, no. 12323/11, § 51, ECHR 2012).", "38. The Court observes that with the entry into force of the impugned legislation and the judgment of the Federal Constitutional Court of 11 July 2017, the applicant trade unions, in accordance with the aim of that legislation, needed to adapt their collective bargaining policy and possibly their organisational structure to avoid the inapplicability of future collective agreements negotiated by them (see also the Federal Constitutional Court’s findings at paragraphs 15 and 17 above, and paragraphs 46-47 and 46 below). The applicant unions, like the applicant trade union members in whose interest the unions pursued and adapted their collective bargaining strategies, are accordingly members of a group who risk being directly affected by the impugned legislation. All applicants can thus claim to be victims of the alleged Convention violation.", "39. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "40. The applicants complained that the impugned provisions of the Uniformity of Collective Agreements Act had severely interfered with their right under Article 11 of the Convention to freedom of association. As a consequence of the Act, the applicant trade unions had no longer been able to conclude applicable collective agreements in companies in which a different trade union had more members and employers no longer wished to negotiate with them.", "41. The interference was not prescribed by law for the purposes of Article 11 § 2. The impugned provisions of the Uniformity of Collective Agreements Act were not sufficiently precise and foreseeable in their application. It was very difficult in practice to know which part of a company was the relevant “business unit”, which staff members were to be counted as “employees” and thus which of the trade unions in a business unit had the majority of members. The first applicant further argued that the impugned provisions did not pursue a legitimate aim as they were aimed at encouraging trade unions to cooperate, whereas it was for the latter to decide how to negotiate collective agreements.", "42. Finally, the interference with an essential element of the applicants’ freedom of association, namely the right to bargain collectively, by the impugned provisions was not proportionate to the aim of an egalitarian collective bargaining policy. The interference was not adequately compensated for by the minority union’s right to be heard and to adopt the collective agreement of the majority union as it deprived trade unions of their independence and attractivity for members. It would also be difficult to mobilise members to strike if it was certain from the outset that what was obtained as a result and reflected in a collective agreement would not ultimately be applicable. The applicants stressed, in particular, that the impugned Act, while also affecting trade unions such as the first applicant which did not represent employees in key positions, thus disadvantaged and threatened the existence of smaller trade unions of professional groups.", "43. The applicants further submitted that prior to the entry into force of the Uniformity of Collective Agreements Act, it had sometimes happened in practice that different collective agreements for the same group of employees had been applicable in one business unit; it had not been shown that this had caused any particular difficulties. The true reason for the adoption of the impugned Act was to create a monopoly structure on the part of the employees. While it was true that section 4a § 2, second sentence, of the Collective Agreements Act never had to be applied in practice, this was also due to the fact that the collective bargaining parties had agreed to exclude the applicability of the provision in some sectors for specific collective agreements of minority trade unions, which therefore remained applicable (regarding this possibility, cf. paragraph 20 above).", "(b) The Government", "44. The Government submitted that the interference by the impugned legislation with the applicants’ right to freedom of association, which included a right to bargain collectively with an employer, had been justified for the purposes of Article 11 § 2. It had been prescribed by law, namely the Uniformity of Collective Agreements Act as interpreted restrictively by the Federal Constitutional Court. In particular, the term “business unit” in the new section 4a § 2 of the Collective Agreements Act had long been used in labour law and been interpreted in a foreseeable manner by the labour courts.", "45. The interference pursued the legitimate aim of protecting the rights and freedoms of other trade unions and their members. It served to protect the German system of collective bargaining as such by preventing minority trade unions representing employees with key positions from securing a disproportionate share of a company’s profits. They submitted that since the year 2000, several such unions, representing inter alia pilots, flight attendants, salaried physicians and train drivers, had engaged in separate collective bargaining and intensive industrial action aimed at obtaining special advantages for their members.", "46. The interference was further necessary in a democratic society for the protection of the rights of others. The legislature enjoyed a wide margin of appreciation in this regard as the Act concerned Germany’s social and economic policy and only affected an accessory aspect of trade union freedom. It concerned all trade unions, large and small, in the same manner, since the question of which trade union had the majority of members in a particular business unit was usually uncertain. The Act therefore only induced all trade unions alike to coordinate their collective bargaining efforts, while retaining the right to bargain collectively and to take industrial action if necessary. In addition, procedural rights had been created to protect minority trade unions.", "47. The Government submitted that this system worked in practice; in particular, section 4a § 2, second sentence, of the Collective Agreements Act had never yet been applied. None of the smaller unions had lost a considerable number of members or had become less relevant in collective bargaining as a result of the impugned Act. In essence, the legislation had reintroduced the principle of uniformity of collective agreements which had been applied by the Federal Labour Court for decades prior to the reversal of its case-law (cf. paragraph 9 above).", "(c) The third-party interveners", "48. Both the German Trade Union Confederation ( Deutscher Gewerkschaftsbund (DGB) ) and the Confederation of German Employers’ Associations ( Bundesvereinigung der Deutschen Arbeitgeberverbände (BDA) ) considered the Uniformity of Collective Agreements Act to be compatible with Article 11 of the Convention also in the light of international labour law, which permitted privileging representative trade unions (see the ILO CFA’s practice cited in paragraph 32 above). They further stressed that according to the comparative law material which they had obtained and submitted, most Contracting Parties to the Convention had rules which prevented the application of several conflicting collective agreements. They confirmed that minority trade unions had still been able to conclude applicable collective agreements in practice, either by agreements to exclude the application of section 4a § 2 of the Collective Agreements Act (see also paragraphs 20 and 43 above) or by precluding conflicts ex ante in the different collective agreements negotiated.", "49. The German Railway stock corporation ( Deutsche Bahn AG ) and the Employers’ and Trade Association of Mobility and Transport Providers ( Arbeitgeber- und Wirtschaftsverband der Mobilitäts- und Verkehrsdienstleister e.V. (AGV MOVE) ) explained that the Uniformity of Collective Agreements Act, having incited the third applicant and a competing trade union to a minimum of cooperation, had allowed the German Railway stock corporation to enter into almost identical collective agreements with both trade unions and had thus facilitated uninterrupted provision of transport services and equal treatment of the different groups of employees.", "50. Both the latter third-party intervener and the Aviation Employers’ Association ( Arbeitgeberverband Luftverkehr (AGVL) ) further submitted that the impugned Act provided an appropriate and practicable solution in case of conflicting collective agreements and thus legal certainty, inter alia as regards working time models. This was essential for running a railway or aviation business necessitating complex coordination of different staff members’ work.", "The Court’s assessment", "(a) Whether there was an interference", "51. The Court observes that the impugned provisions of the Uniformity of Collective Agreements Act, by which, in particular, section 4a § 2, second sentence, was inserted into the Collective Agreements Act, may lead to a collective agreement concluded by a trade union with an employer becoming fully inapplicable if a conflicting collective agreement – which contains at least partly differing provisions on working conditions and overlaps with the minority union’s agreement as regards the place, time, business unit and employees’ position covered (see paragraphs 9 and 20 above) – has been concluded by another trade union having more members in the business unit of the company concerned. Moreover, as a result of the impugned provisions of the Uniformity of Collective Agreements Act, by which sections 2a § 1 no. 6 and 99 were inserted into the Labour Courts Act (see paragraph 30 above), trade unions may be obliged to disclose the number of their members in a business unit in the labour court proceedings to determine the majority union, and thus their strength in case of industrial action. These provisions interfere with the applicants’ right to form and join trade unions under Article 11 § 1 of the Convention, which includes a right, held by both trade unions and their members, to bargain collectively with the employer (compare, inter alia, Demir and Baykara v. Turkey [GC], no. 34503/97, § 154, ECHR 2008).", "(b) Whether the interference was justified", "(i) Prescribed by law", "52. The Court considers that the legal basis for the interference with the applicants’ right to form and join trade unions, the Uniformity of Collective Agreements Act read in conjunction with the provisions amended by that Act (in particular section 4a of the Collective Agreements Act and sections 2a § 1 no. 6 and 99 of the Labour Courts Act), was formulated with sufficient precision to enable the persons concerned to regulate their conduct and thus foreseeable in its application. In particular, the fact that the interpretation of the term “business unit” in section 4a of the Collective Agreements Act and the criteria for including persons as “employees” for the purposes of that provision were questions of judicial practice does not alter that finding, in particular as these terms are common in the labour courts’ practice. The impugned interference was thus “prescribed by law” for the purposes of Article 11 § 2.", "(ii) Pursuit of a legitimate aim", "53. The Court observes that the legislator adopting the Uniformity of Collective Agreements Act was notably faced with conflicting interests of different groups of employees organised in competing trade unions, and also with the employers’ interests. It considers that, as a matter of principle, granting an unfettered liberty notably to trade unions to conclude a multitude of collective agreements in the same business unit could run counter to the legitimate interest of keeping peace and solidarity within that economic unit. It is therefore legitimate for a legislator to try to strike a fair balance between the aim of ensuring peace and solidarity in a business unit and the unlimited liberty of competing trade unions to negotiate separate collective agreements in the same economic unit. The Court has further recognised that State measures to ensure a coherent and balanced staff policy, taking due account of the occupational interests of all staff and not only of those of certain categories of staff, pursue a legitimate aim (see National Union of Belgian Police v. Belgium, 27 October 1975, § 48, Series A no. 19, in the context of Article 11 read in conjunction with Article 14). It notes that the impugned provisions of the Uniformity of Collective Agreements Act are intended to ensure the proper and fair functioning of the system of collective bargaining by preventing trade unions representing employees in key positions from negotiating collective agreements separately to the detriment of other employees, and also to facilitate an overall compromise (see paragraphs 19 and 28 above). They thus serve to protect the rights of others, namely, in particular, the rights of employees not holding key positions and of trade unions defending their interests, but also the rights of the employer, and thus pursue a legitimate aim for the purposes of Article 11 § 2.", "(iii) Necessity of the interference in a democratic society", "(α) Relevant principles", "54. As for the proportionality of interferences with trade-union activity, the Court reiterates that in cases concerning the freedom to form and join trade unions, the breadth of the States’ margin of appreciation will depend on the nature and extent of the restriction on the trade-union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 86, ECHR 2014). The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the specialised international instruments (see Demir and Baykara, cited above, § 85; National Union of Rail, Maritime and Transport Workers, cited above, § 86; and Association of Academics v. Iceland (dec.), no. 2451/16, § 25, 15 May 2018).", "55. The sensitiveness of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and the high degree of divergence between the domestic systems in this field, are elements indicative of a wide margin of appreciation of the Contracting States as to how trade union freedom and protection of the occupational interests of union members may be secured (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 133, ECHR 2013 (extracts); National Union of Rail, Maritime and Transport Workers, cited above, §§ 86 and 91; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway, no. 45487/17, §§ 97 and 114, 10 June 2021). In respect of the social and economic strategy of the respondent State, to which the ability of trade unions to protect the interests of their members relates, the Court has usually allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected Parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and which legislative measures are best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy ( National Union of Rail, Maritime and Transport Workers, cited above, § 89). Therefore, such interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade-union freedom are concerned ( National Union of Rail, Maritime and Transport Workers, cited above, § 87).", "56. The substance of the right to freedom of association under Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 144, ECHR 2008; Association of Academics, cited above, § 23; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 94).", "57. The essential elements of the right to freedom of association have been established, in a non-exhaustive list subject to evolution, as: the right to form and join a trade union; the prohibition of closed-shop agreements; the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and, in principle, the right to bargain collectively with the employer (see Demir and Baykara, cited above, §§ 145 and 154, and Sindicatul “Păstorul cel Bun”, cited above, § 135).", "58. The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on issues which the union believes are important for its members’ interests (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 46, ECHR 2002 ‑ V, and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 95).", "59. Whereas the right to take industrial action has not been considered as an essential element of trade union freedom, strike action is clearly protected by Article 11 as part of trade union activity (see Association of Academics, cited above, §§ 24-27, with further references, and National Union of Rail, Maritime and Transport Workers, cited above, § 84). Yet, the right to collective bargaining has not been interpreted as including a “right” to a collective agreement (see National Union of Rail, Maritime and Transport Workers, cited above, § 85; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 93).", "60. States remain free to organise their collective bargaining system so as, if appropriate, to grant special status to representative trade unions (see Demir and Baykara, cited above, § 154, and Tek Gıda İş Sendikası v. Turkey, no. 35009/05, § 33, 4 April 2017). The Court has thus considered a general policy of restricting the number of organisations which are (formally) consulted in the collective bargaining process and with which collective agreements are to be concluded to larger unions or unions which are more representative of all staff of an entity as compatible with trade union freedom where the other unions were heard in a different manner (compare National Union of Belgian Police, cited above, §§ 39-41 and 48; Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, §§ 8-9, 40-42 and 46, Series A no. 20; and Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000). The Court further confirmed in this context that such a policy did not infringe union members’ right to join or remain member of a smaller or less representative trade union, which they fully retained, despite the fact that the disadvantages at which these unions were placed could lead to a decline in their membership (see National Union of Belgian Police, cited above, § 41, and Swedish Engine Drivers’ Union, cited above, § 42).", "(β) Application of these principles to the present case", "61. When assessing the proportionality of the impugned provisions, the Contracting States must be afforded a margin of appreciation. The breadth of the margin depends inter alia on the nature and extent of the restriction on trade union freedom and in particular the right to collective bargaining by these provisions in the entire regulatory context (compare paragraph 54 above).", "62. The Court observes in this regard that the essential restriction brought about by the Uniformity of Collective Agreements Act is that a conflicting collective agreement (which overlaps with another trade union’s agreement as regards the place, time, business unit and employees’ position covered and contains at least partly differing provisions on working conditions, see paragraphs 9 and 20 above) concluded by a trade union which did not have the highest number of members employed within the business unit of the company concerned becomes inapplicable (see the new section 4a § 2, second sentence, of the Collective Agreements Act, at paragraph 27 above).", "63. The Court notes that the trade unions concerned do not lose the right as such to bargain collectively – and to take industrial action in that context if necessary – and to conclude collective agreements. Section 4a of the Collective Agreements Act intends to encourage trade unions to coordinate their collective bargaining negotiations. In the event of a failure of coordination, it provides for different legal effects regarding the conflicting collective agreements concluded with the employer (in that only the collective agreement concluded by the largest trade union within the business unit remains applicable).", "64. The Court further observes that the extent of the restriction on trade union freedom and in particular the right to collective bargaining by the said provision is limited in several respects. In particular, in accordance with section 4a § 4 of the Collective Agreements Act as interpreted by the Federal Constitutional Court (see paragraphs 27 and 21 above), the trade unions whose collective agreements became inapplicable are entitled to adopt the legal provisions of the collective agreement of the majority union in their entirety. These unions are not, therefore, left without any collective agreement against their will.", "65. Moreover, under section 4a § 5 of the Collective Agreements Act (see paragraph 27 above), minority trade unions retain the right to effectively present claims and make representations to the employer for the protection of the interests of their members, to negotiate with the employer and to conclude collective agreements. The Federal Constitutional Court, in its interpretation of that provision, even further strengthened the minority trade unions’ right to be heard. It found that minority trade unions’ conflicting collective agreements would not become inapplicable where the statutory duty to hear these unions had not been observed (see paragraph 21 above). Furthermore, a conflicting collective agreement could only become inapplicable under section 4a § 2 of the Collective Agreements Act if the majority trade union had seriously and effectively taken into account the interests of the employees of particular professions or sectors whose collective agreement became inapplicable (see paragraphs 14 and 22 above).", "66. In addition, longer-term benefits such as contributions to a pension in a minority union’s agreement could only be rendered inapplicable if there was a comparable benefit in the majority union’s agreement (see paragraph 20 above). Moreover, according to the Federal Constitutional Court, in the procedure to determine which of several trade unions have the majority of members in that unit and whose collective agreement is thus applicable under section 99 of the Labour Courts Act, the disclosure of the number of trade union members in a business unit should, if possible, be avoided (see paragraphs 30 and 21 above).", "67. In view of the scope of the restriction on collective bargaining, the interference with the applicants’ right to collective bargaining cannot be regarded as affecting an essential element of trade-union freedom, without which that freedom would become devoid of substance. As shown above (see paragraph 59), the right to collective bargaining does not include a “right” to a collective agreement. What is essential is that trade unions may make representations to and are heard by the employer, which the impugned provisions of the Collective Agreements Act effectively guarantee in practice. Furthermore, it was expressly clarified by the Federal Constitutional Court (see paragraph 17 above) that minority trade unions’ right to strike as an important instrument to protect the occupational interests of their members was not curtailed by the impugned provisions.", "68. The Court would observe that in its case-law, it considered more far ‑ reaching restrictions on the right to collective bargaining, particularly the complete exclusion of a right of minority or less representative unions to conclude collective agreements at all, as compatible with Article 11 (see paragraph 60 above).", "69. In this respect, the Court recalls that the breadth of the States’ margin of appreciation depends also on the objective pursued by the contested restriction and the competing rights of others who are liable to suffer as a result of the unrestricted exercise of the right to bargain collectively (see paragraph 54 above). The Court refers to its above finding that the impugned provisions are aimed, in particular, at ensuring a fair functioning of the system of collective bargaining by preventing trade unions representing employees in key positions from negotiating collective agreements separately to the detriment of other employees, and also at facilitating an overall compromise. These objectives, which protect the rights of the said other employees and of trade unions defending their interests, but also the rights of the employer, must be considered to be very weighty in that they are aimed at strengthening the entire system of collective bargaining and thus also trade union freedom as such.", "70. The Court observes that it has repeatedly noted a high degree of divergence between the domestic systems in the sphere of protection of trade union rights (see paragraph 55 above). It further emerges from its case-law that several other States, like the respondent State, have systems restricting in one way or another the conclusion of (applicable) collective agreements to larger unions or unions which are more representative of all the staff of an entity (see the cases cited in paragraph 60 above). The comparative law material submitted by the third party interveners (see paragraph 48 above) and not contested by the parties equally confirmed that most Contracting Parties to the Convention had rules which prevented the application of several conflicting collective agreements. Legal systems permitting only “representative” trade unions to conclude collective agreements – which are more restrictive than the impugned provisions at issue in the present case – were further considered compatible with the pertinent ILO instruments – notably where minority unions, as in the present case, maintain the right to make representations on behalf of their members – and the European Social Charter (see paragraphs 31 to 33 above).", "71. Having regard to the above elements – in particular, the limited extent of the restriction on the right to collective bargaining particularly of smaller trade unions by the impugned provisions in the entire regulatory context and the weighty aim to secure the proper functioning of the system of collective bargaining as such in the interests of both employees and employers – the Court concludes that the respondent State had a margin of appreciation as regards the restriction on trade union freedom at issue.", "72. That margin of appreciation is to be afforded all the more as the legislature had to make sensitive policy choices in order achieve a proper balance between the respective interests of labour – including the competing interests of different trade unions – and also of management. The parties have not contested the quality of the legislative process leading to the adoption of the Uniformity of Collective Agreements Act (see also paragraph 28 above).", "73. The Court would further add that in the light of its case-law (see paragraph 60 above) the fact that the impugned provisions may lead to a loss of attractivity and thus a decline in the membership of smaller trade unions often representing specific professional groups does not as such infringe union members’ right to join or remain member of such trade unions, which they fully retain.", "74. Having regard to the foregoing, the Court concludes that the facts of the present case do not disclose an unjustified interference with the applicants’ right to collective bargaining, the essential elements of which they are able to exercise, in representing their members and in negotiating with the employers on behalf of their members. Since the respondent State enjoys a margin of appreciation in this area, which encompasses the impugned provisions, there is no basis to consider these provisions as entailing a disproportionate restriction on the applicants’ rights under Article 11.", "75. There has accordingly been no violation of Article 11 of the Convention." ]

[ "12. Mr. Young, Mr. James and Mr. Webster are former employees of the British Railways Board (\"British Rail\"). In 1975, a \"closed shop\" agreement was concluded between British Rail and three trade unions, providing that thenceforth membership of one of those unions was a condition of employment. The applicants failed to satisfy this condition and were dismissed in 1976. They alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention.", "II. BRITISH RAIL AND ITS CLOSED SHOP AGREEMENT", "29. In 1970, British Rail had concluded a closed shop agreement with the National Union of Railwaymen (\"NUR\"), the Transport Salaried Staffs ’ Association (\"TSSA\") and the Associated Society of Locomotive Engineers and Firemen (\"ASLEF\"), but, with the enactment of the Industrial Relations Act 1971 (see paragraph 18 above), it was not put into effect.", "The matter was, however, revived in July 1975 when British Rail concluded a further agreement with the same unions. It was provided that as from 1 August 1975 membership of one of those unions was to be a condition of employment for certain categories of staff - including the applicants - and that the terms of the agreement were \"incorporated in and form[ed] part of\" each contract of employment. Like other staff of British Rail, Mr. Young, Mr James and Mr. Webster had, it appears, been supplied when engaged with a written statement containing a provision to the effect that they were subject to such terms and conditions of employment as might from time to time be settled for employees of their category under the machinery of negotiation established between their employer and any trade union or other organisation.", "The membership requirement did not apply to \"an existing employee who genuinely objects on grounds of religious belief to being a member of any Trade Union whatsoever or on any reasonable grounds to being a member of a particular Trade Union\". The agreement also set out the procedure for applying for exemption on these grounds and provided for applications to be heard by representatives of the employer and the unions.", "30. In July/August 1975, notices were posted at the premises of British Rail, including those where the applicants were then working, drawing the attention of staff to the agreement with the unions and the change in conditions of employment.", "A further notice of September 1975 stated that it had been agreed that the exemption on religious grounds would be available only where a denomination specifically proscribed its members from joining unions. The notice added that \"confining exemption only to religious grounds depends upon the passing through Parliament of the Trade Union and Labour Relations (Amendment) Bill\" and that staff would be advised further on this point. As recorded in paragraph 23 above, the Amendment Act came into force on 25 March 1976.", "On the same date, a further agreement between British Rail and the railway unions came into effect. It was in identical terms to the July 1975 agreement, except that the words \"or on any reasonable grounds to being a member of a particular Trade Union\" (see paragraph 29 above) were omitted.", "31. The applicants and the representative of the Trades Union Congress informed the Court that NUR, TSSA and ASLEF were the only unions actually operating in 1975 in those sectors of the railway industry in which Mr. Young, Mr. James and Mr. Webster worked. According to the Government, other unions did have members in, although they were not recruiting amongst, the relevant grades.", "It appears that, prior to the conclusion of the 1975 closed shop agreement, between 6,000 and 8,000 British Rail employees, out of a total staff of 250,000, were not already members of one of the specified unions. In the final event, 54 individuals were dismissed for refusal to comply with the membership requirement.", "32. The applicants were not eligible for membership of ASLEF. As regards NUR and TSSA, intending members were required to sign an application form which, at the relevant time, embodied an undertaking to abide by the Rules of the union and \"loyally to promote\" its objects (NUR), or to use their \"best endeavours to promote its objects and interests\" (TSSA).", "The stated objects of NUR included the following:", "\"... to secure the complete organisation of all workers employed by any Board, Company or Authority in connection with railways and other transport and ancillary undertakings thereto in the United Kingdom; to improve the conditions and protect the interests of its members; ... To further, if and when and so far as the same shall be or become a lawful object of a Trade Union, the interests of members by representation in Parliament and on local governing bodies, and to employ the Political Fund of the Union procuring such representation. To work for the suppression of the capitalist system by a Socialistic order of society. ... To make grants to and share in the management and control of any college or institution having for its object to educate and train Trade Unionists in social science in, and to take part in, the political and industrial life of the Labour Movement. ...\"", "The stated objects of TSSA included the following:", "\"(a) To organise the whole of the Clerical, Supervisory, Administrative, Professional and Technical employees in all Departments of any British or Irish Railway undertaking, or of any Railway Carting Agency, associated or other undertaking as defined in Rule 2.", "(b) To improve the conditions and protect the interests of its members.", "...", "(g) To establish a Fund, or Funds, including the Political Fund referred to in Rules 45 and 46.", "...", "(i) To secure or assist in securing legislation and the more effective administration of the existing laws which may affect the general and material welfare of its members and of any other workmen.", "(j) To provide financial assistance and to lend money, with or without interest or other equivalent, to any such organisation (incorporated or not incorporated) as the Executive Committee may deem advisable in the interests of or for carrying out the objects of the Association, and so far as the law for the time being in force may permit.", "...\"", "The objects of both unions also included the furtherance of the political objects specified in section 3 of the Trade Union Act 1913 and their Rules contained provisions reflecting that Act ’ s requirements in the matter of a political fund (see paragraph 28 above). In the case of TSSA, payments from its political fund could not be made unless the beneficiary was an individual member of the Labour Party or the purpose of the payment was in support of Labour Party policy; its general funds could be used for providing financial assistance for political purposes other than the \"political objects\" listed in the 1913 Act.", "III. FACTS PARTICULAR TO THE INDIVIDUAL APPLICANTS", "A. Mr. Young", "33. Mr. Young, who was born in 1953, commenced employment with British Rail in 1972.", "34. In September 1975, he had a meeting with his supervisor and a representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above).", "The applicant objected, though not on grounds of religious belief, to being a member of any trade union and in particular of TSSA or NUR. He believed that union membership should be a matter of personal choice based on conscience and political conviction. His reasons for not wanting to join TSSA, which he said also applied to NUR, may be summarised as follows:", "(a) he did not subscribe to the political views of TSSA;", "(b) money from the main union fund was used to produce a monthly newspaper biased in favour of the Labour Party and he had not received sufficient assurances that that fund was not utilised for other political purposes;", "(c) he disapproved of TSSA ’ s support for nationalisation of industry and its forcing of inflationary pay awards; he also objected to being obliged to participate in strikes, this being action which in the case of a key service industry he saw as collective blackmail of the country as a whole;", "(d) TSSA showed itself intolerant of the expression of individual freedom by seeking to enforce a closed shop and it acquired by that means an unacceptably extensive control over the hiring and firing of employees.", "35. On 17 October 1975, Mr. Young submitted a written claim for exemption. On 30 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was informed by letter that his claim would be heard on 5 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR.", "By letter of 27 May, British Rail advised the applicant that the claim had been disallowed and gave him notice of dismissal - of one month, in accordance with his contract - expiring on 26 June 1976.", "B. Mr. James", "36. Mr. James, who was born in 1928, was engaged by British Rail on 27 March 1974 as a leading railwayman. He had previously been employed by British Rail for two periods of some years.", "37. In 16 October 1975, he had a meeting with his immediate superior and a representative of NUR who informed him that, as a result of the closed shop agreement, he was required to join NUR and that, as a shunter, he was not eligible for membership of any other union. Mr. James was willing to join - in fact, he had previously been a member of NUR - but he was not convinced that membership was advantageous and he believed in freedom of choice. He deferred his final decision pending clarification of a question, submitted by one of his colleagues to NUR, regarding an apparent difference between his salary and that of his colleague who was working the same hours. Before applying for membership, Mr. James wished to see NUR ’ s reply in order to assess how members ’ problems were dealt with. In the event, he formed the view that the union ’ s examination of the matter and explanation of its conclusions were unsatisfactory and that it had not looked after its member ’ s interests properly; therefore he did not wish to join the union.", "38. By letter of 18 December 1975, the applicant indicated that he refused to join the union since it had not replied to his own query about his hours of work.", "On 23 February 1976, he received a dismissal notice stating that, by reason of his non-compliance with the July 1975 agreement, his services would no longer be required as from 5 April 1976.", "39. On 8 April 1976, Mr. James presented a complaint of unfair dismissal to an industrial tribunal, before which he appeared on 18, June. On 6 July, he received a copy of its decision rejecting his complaint. The grounds were, firstly, that the applicant had never sought exemption from union membership in accordance with the procedure laid down in the closed shop agreement and, secondly, that as he had at no time based his refusal to join NUR on religious grounds, the tribunal was bound under paragraph 6 (5) of Schedule 1 to TULRA (as modified by the Amendment Act) to find that the dismissal was fair.", "C. Mr. Webster", "40. Mr. Webster, who was born in 1914, commenced employment with British Rail on 18 March 1958.", "41. At the time of the conclusion of the 1970 closed shop agreement (see paragraph 29 above), the applicant had objected to joining a union on grounds which he set out in a letter to the Administrative Services Officer. However, as that agreement was not put into effect, he was not called upon to appear before the appeal body to which he had agreed to submit his claim.", "42. In or around September 1975, the applicant had a meeting with his immediate supervisor and the local representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above).", "43. Mr. Webster was opposed to joining a union for reasons - in his eyes equally valid for TSSA and NUR - which included the following:", "(a) he was opposed to the trade union movement as it currently operated since it was unrepresentative, had detrimental effects - particularly through unjustified collective wage demands - in the economic, industrial and social spheres, and did not act in the best interests of workers or of the country in general; he also found it utterly repugnant to be obliged to participate in any strike which caused loss to the general public or workers elsewhere;", "(b) he believed that the individual should enjoy freedom of choice as regards union membership and should be able to express and abide by his opinions and convictions without being threatened with the loss of his livelihood as a result of the closed shop practice, which practice would not remedy the disabilities inherent in the trade union system.", "44. On 29 October 1975, Mr. Webster wrote to his supervisor explaining some doubts which he had as to the courses open to him to claim exemption and seeking guidance on certain aspects. He said that he wished to apply for exemption on conscientious grounds (other than specifically religious grounds) and he asked that, if this was still possible, his 1970 submissions be accepted as his case, though he also indicated that he would again wish to present a full and closely argued case. He added that he was an opponent of the trade union movement \"as it operates today\". On 2 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was advised by letter that his application would be examined four days later by representatives of British Rail and the unions in accordance with the procedure prescribed in the 1975 agreement. The applicant requested two weeks ’ postponement to enable him to prepare written submissions. On 28 April, by which time he had received replies, through his solicitors, to only some of the questions posed in his October letter, he was instructed to attend a hearing on 6 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR.", "On 3 June 1976, Mr. Webster received a dismissal notice stating that his application had been disallowed and that his contract of employment would terminate on 28 August 1976." ]

[ "I. GENERAL BACKGROUND AND DOMESTIC LAW", "A. Closed shops and dismissal from employment", "In general", "13. In essence, a closed shop is an undertaking or workplace in which, as a result of an agreement or arrangement between one or more trade unions and one or more employers or employers ’ associations, employees of a certain class are in practice required to be or become members of a specified union. The employer is not under any legal obligation to consult or obtain the consent of individual employees directly before such an agreement or arrangement is put into effect. Closed shop agreements and arrangements vary considerably in both their form and their content; one distinction that is often drawn is that between the \"pre-entry\" shop (the employee must join the union before engaged) and the \"post-entry\" shop (he must join within a reasonable time after being engaged), the latter being more common.", "In the United Kingdom, the institution of the closed shop is of very long standing. In recent years, closed shop arrangements have become more formalised and the number of employees covered thereby has increased (3.75 million in the 1960 ’ s and 5 million in 1980, approximately). Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non-union employees.", "The law in force until 1971", "14. There was no legislation explicitly directed to the practice of the closed shop until 1971. Nevertheless, the courts had since the 1920 ’ s recognised the legitimacy of the trade union object of advancing the union ’ s interests even to the point of enforcing the dismissal, or a ban on the hiring, of non-union employees. However, it was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests (Huntley v. Thornton [1957] 1 All England Law Reports 234; Morgan v. Fry [1967] 2 All England Law Reports 386).", "The Royal Commission on Trade Unions and Employers ’ Associations, which reported in 1968, whilst rejecting the possibility of prohibiting the closed shop, considered the question of safeguards for individuals in a closed shop situation. In particular, a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal.", "15. Prior to 1971, the rights and liabilities of the parties to a contract of employment were for the most part governed by common law. Leaving aside cases of justified summary dismissal, it was lawful to dismiss an employee, even without cause, provided that he was given due notice. The remedy open to an employee dismissed without due notice was merely to sue for the balance of wages he would have earned during the appropriate notice period; the courts would not order his employer to re-engage him. These principles applied, for example, to dismissals motivated by an employee ’ s joining, or refusing to join, a trade union.", "The Industrial Relations Act 1971", "16. Since 1971, there has been increased Parliamentary intervention in the areas under consideration, and changes of Government have led to changes in the scope and content of the legislation in force. The first major enactment was the Industrial Relations Act 1971 which radically altered the common law position in two respects.", "17. In the first place, the 1971 Act conferred on employees (with certain exceptions) the right not to be unfairly dismissed. Dismissal of an employee without cause became unlawful, even if he had been given due notice. An individual who considered that he had been unfairly dismissed could present a complaint to an industrial tribunal; unless the dismissal had been motivated by one or more reasons specified in the Act (for example, qualifications, conduct, redundancy) or some other substantial reason and unless the employer was found to have acted reasonably in treating that or those reasons as a sufficient reason for dismissal, the tribunal could award compensation to the employee or recommend that he be re-engaged. The employee ’ s common law rights were unaffected by the Act, although after 1971 little reliance was placed on them in practice by those entitled to the new right.", "18. In the second place, the 1971 Act introduced specific provisions which were designed to make the operation of the majority of closed shops unlawful. In addition to stipulating that pre-entry closed shop agreements were void, the Act, subject to certain exceptions, gave every worker the right to be a member of no trade union or to refuse to be a member of any particular union. In the context of the rules on unfair dismissal and in contrast to the position at common law (see paragraph 15 in fine above), the Act laid down that dismissal motivated by the employee ’ s exercise of, or intention to exercise, that right was be to regarded as unfair.", "19. A Green Paper on Trade Union Immunities, published by the British Government in January 1981, states that the 1971 Act \"met considerable resistance from trade unions and in practice its closed shop provisions were circumvented by many employers and unions. The closed shop continued much as before\".", "The law in force at the time of the events giving rise to the applicants ’ complaints", "20. The industrial Relations Act 1971 was repealed by the Trade Union and Labour Relations Act 1974 (\"TULRA\"). The provisions of TULRA relevant to the present case came into force on 16 September 1974.", "21. The repeal of the Industrial Relations Act 1971 removed from the statute book both the prohibition on closed shops and the employee ’ s right not to belong to a union. However, the law did not fully return to its pre-1971 condition. This was because TULRA maintained the protection against unfair dismissal; since one result of a closed shop is that an individual who declines to join a specified union may have his employment terminated, it was necessary to spell out the precise conditions in which dismissal for this reason was to be regarded as fair. Accordingly, TULRA:", "(a) set out - by reference to the concept of \"union membership agreement\", which it defined - the circumstances in which a closed shop situation was to be regarded as existing;", "(b) laid down the basic rule that, if such a situation existed, the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal;", "(c) provided that, by way of exceptions, such a dismissal was to be regarded as unfair if the employee genuinely objected", "(i) on grounds of religious belief to being a member of any union whatsoever; or", "(ii) on any reasonable grounds to being a member of a particular union.", "22. The powers of an industrial tribunal under the 1971 Act to award compensation to an unfairly dismissed employee were also re-enacted by TULRA. However, the power to recommend his re-engagement was later replaced, by the Employment Protection Act 1975, by a discretionary power to order reinstatement or re-engagement in certain circumstances (notably, where this was considered \"practicable\"). It was provided that, if the order were not complied with, the employee should be awarded the normal compensation for unfair dismissal and, in specified cases, an additional sum.", "23. TULRA was modified in various respects by the Trade Union and Labour Relations (Amendment) Act 1976 (\"the Amendment Act\") which came into force on 25 March 1976. In particular, the second of the exceptions mentioned in paragraph 21 (c) above was abolished, so that the action for unfair dismissal remained available only to genuine religious objectors. With the object of achieving greater flexibility, the Amendment Act also modified the concept of \"union membership agreement\".", "Subsequent legislative developments", "24. The Employment Protection (Consolidation) Act 1978 repealed and re-enacted the then existing provisions concerning unfair dismissal.", "The 1978 Act was in turn amended, without retroactive effect, by the Employment Act 1980. It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal. However, with effect from 15 August 1980, this rule became subject to three exceptions whereby such dismissal is to be regarded as unfair if:", "(a) the employee objects on grounds of conscience or other deeply-held personal conviction to being a member of any or a particular union; or", "(b) the employee belonged, before the closed shop agreement or arrangement came into effect, to the class of employees covered thereby and has not been a member of a union in accordance therewith; or", "(c) in the case of a closed shop agreement or arrangement taking effect after 15 August 1980, either it has not been approved by the vote in a ballot of not less than 80% of the employees affected or, although it is so approved, the employee has not since the balloting been a member of a union in accordance therewith.", "A Code of Practice, issued with the authority of Parliament and coming into effect on 17 December 1980, recommended, inter alia, that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers. The Code is admissible in evidence, but imposes no legal obligations.", "25. The green Paper on Trade Union Immunities (see paragraph 19 above) rehearsed arguments for and against various proposals and indicated that the Government would welcome views on whether further changes in legislation affecting the closed shop were desirable and would be likely to prove effective.", "B. Other relevant matters concerning trade union membership", "26. Since 1971, there has been statutory protection of the right to belong to a trade union. The exact content of the provisions has varied over the years, but their essence is that an employee is entitled to compensation if he is dismissed or penalised for, or deterred or prevented from, being or seeking to become a member or taking part in the activities of a trade union (Industrial Relations Act 1971, section 5; TULRA, Schedule 1, paragraph 6 (4); Employment Protection Act 1975, section 53; Employment Protection (Consolidation) Act 1978, sections 23 and 58).", "27. At the end of 1979, there were 477 trade unions in the United Kingdom, with 13.5 million members; in 1980, 108 unions with 12.1 million members, were affiliated to the Trades Union Congress.", "The Congress adopted in 1 939 a series of morally binding recommendations (\"the Bridlington Principles\") designed to minimise, and laying down procedures for dealing with, disputes between affiliated unions over membership questions. The current version of the Principles states, inter alia, that dual membership is valid only if the two unions concerned have jointly agreed to it.", "28. The Trade Union Act 191 3, as amended, attaches certain conditions to the application by a union of its funds for a number of political objects specified in section 3 (3), without prejudice to the furtherance of any other political objects. In particular, payments for the specified object must be made out of a separate \"political fund\" and any member of the union has the right to exemption from contributing thereto. A person so exempted may not be placed at any disadvantage as compared with other members, and contribution to the said fund may not be made a condition for admission to the union.", "PROCEEDINGS BEFORE THE COMMISSION", "45. Mr. Young and Mr. James applied to the Commission on 26 July 1976 and Mr. Webster on 18 February 1977; they each made identical complaints, relying on Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention. They submitted that the enforcement of TULRA and the Amendment Act, allowing their dismissal from employment when they objected on reasonable grounds to joining a trade union, interfered with their freedom of thought, conscience, expression and association with others. They further complained that no adequate remedies had been available to them.", "46. The application of Mr. Young and Mr. James and that of Mr. Webster were declared admissible by the Commission on 11 July 1977 and 3 March 1978, respectively.", "In its report of 14 December 1979 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion:", "- by fourteen votes to three, that there had been a violation of Article 11 (art. 11);", "- that it was not necessary to deal separately with the issues arising under Articles 9 and 10 (art. 9, art. 10);", "- by eight votes to two, with two abstentions, that there was no additional breach of Article 13 (art. 13).", "The report contains four separate opinions.", "FINAL SUBMISSIONS MADE TO THE COURT", "47. At the hearings on 4 March 1981, the Government maintained the submissions set out in their memorial, whereby they had requested the Court:", "\"(I) With regard to Article 11 (art. 11)", "(i) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 11 (art. 11);", "alternatively, if the request at (i) should be rejected, then", "(ii) to decide and declare that the responsibility of the United Kingdom, if any, under the Convention in respect of the termination of the contracts of employment of the three applicants is engaged exclusively by reason of the enactment of the Acts of 1974 and 1976 and is not engaged on the ground that British Rail is an organ of the State or on the ground that the Government of the United Kingdom is to be regarded as the employer of British Rail or of the applicants.", "(2) With regard to Articles 9 and 10 (art. 9, art. 10)", "(i) to decide and declare that the provisions of Articles 9 and 10 (art. 9, art. 10) of the Convention are inapplicable in the circumstances of the present cases;", "alternatively, if the request at (i) should be rejected, then", "(ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Articles 9 and 10 (art. 9, art. 10) of the Convention.", "(3) With regard to Article 13 (art. 13)", "(i) to decide and declare that Article 13 (art. 13) of the Convention has no application in the present cases in that no rights or freedoms set forth in the Convention were involved or affected by reason of the dismissal of the applicants from their employment;", "alternatively,", "(ii) to decide and declare that the facts found do not disclose a breach by the United Kingdom of their obligations under Article 13 (art. 13) of the Convention additional to any breach of Article 11 (art. 11) of the Convention.\"", "AS TO THE LAW", "I. PRELIMINARY: RESPONSIBILITY OF THE RESPONDENT STATE", "48. Mr. Young, Mr. James and Mr. Webster alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10 and 11 (art. 9, art. 10, art. 11) of the Convention, in particular read collectively, and of Article 13 (art. 13). Before the substance of the matter is examined, it must be considered whether responsibility can be attributed to the respondent State, the United Kingdom.", "The Government conceded that, should the Court find that the termination of the applicants ’ contracts of employment constituted a relevant interference with their rights under Article 11 (art. 11) and that that interference could properly be regarded as a direct consequence of TULRA and the Amendment Act, the responsibility of the respondent State would be engaged by virtue of the enactment of that legislation.", "A similar approach was adopted by the Commission in its report.", "49. Under Article 1 (art. 1) of the Convention, each Contracting State \"shall secure to everyone within [its] jurisdiction the rights and freedoms defined in ... [the] Convention\"; hence, if a violation of one of those rights and freedoms is the result of non-observance of that obligation in the enactment of domestic legislation, the responsibility of the State for that violation is engaged. Although the proximate cause of the events giving rise to this case was the 1975 agreement between British Rail and the railway unions, it was the domestic law in force at the relevant time that made lawful the treatment of which the applicants complained. The responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis. Accordingly, there is no call to examine whether, as the applicants argued, the State might also be responsible on the ground that it should be regarded as employer or that British Rail was under its control.", "II. THE ALLEGED VIOLATION OF ARTICLE 11 (art. 11)", "50. The main issues in this case arise under Article 11 (art. 11), which reads as follows:", "\"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.\"", "I. THE EXISTENCE OF AN INTERFERENCE WITH AN ARTICLE 11 (art. 11) RIGHT", "51. A substantial part of the pleadings before the Court was devoted to the question whether Article 11 (art. 11) guarantees not only freedom of association, including the right to form and to join trade unions, in the positive sense, but also, by implication, a \"negative right\" not to be compelled to join an association or a union.", "Whilst the majority of the Commission stated that it was not necessary to determine this issue, the applicants maintained that a \"negative right\" was clearly implied in the text. The Government, which saw the Commission ’ s conclusion also as in fact recognising at least a limited negative right, submitted that Article 11 (art. 11) did not confer or guarantee any right not to be compelled to join an association. They contended that this right had been deliberately excluded from the Convention and that this was demonstrated by the following passage in the travaux préparatoires :", "\"On account of the difficulties raised by the ‘ closed-shop system ’ in certain countries, the Conference in this connection considered that it was undesirable to introduce into the Convention a rule under which ‘ no one may be compelled to belong to an association ’ which features in [Article 20 par. 2 of] the United Nations Universal Declaration\" (Report of 19 June 1950 of the Conference of Senior Officials, Collected Edition of the\" Travaux Préparatoires \", vol. IV, p. 262).", "52. The Court does not consider it necessary to answer this question on this occasion.", "The Court recalls, however, that the right to form and to join trade unions is a special aspect of freedom of association (see the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 17, par. 38); it adds that the notion of a freedom implies some measure of freedom of choice as to its exercise.", "Assuming for the sake of argument that, for the reasons given in the above-cited passage from the travaux préparatoires, a general rule such as that in Article 20 par. 2 of the Universal Declaration of Human Rights was deliberately omitted from, and so cannot be regarded as itself enshrined in, the Convention, it does not follow that the negative aspect of a person ’ s freedom of association falls completely outside the ambit of Article 11 (art. 11) and that each and every compulsion to join a particular trade union is compatible with the intention of that provision. To construe Article 11 (art. 11) as permitting every kind of compulsion in the field of trade union membership would strike at the very substance of the freedom it is designed to guarantee (see, mutatis mutandis, the judgment of 23 July 1968 on the merits of the \"Belgian Linguistic\" case, Series A no. 6, p. 32, par. 5, the Golder judgment of 21 February 1975, Series A no. 18, p. 19, par. 38, and the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24, par. 60).", "53. The Court emphasises once again that, in proceedings originating in an individual application, it has, without losing sight of the general context, to confine its attention as far as possible to the issues raised by the concrete case before it (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, pp. 31-32, par. 88). Accordingly, in the present case, it is not called upon to review the closed shop system as such in relation to the Convention or to express an opinion on every consequence or form of compulsion which it may engender; it will limit its examination to the effects of that system on the applicants.", "54. As a consequence of the agreement concluded in 1975 (see paragraph 29 above), the applicants were faced with the dilemma either of joining NUR (in the case of Mr. James) or TSSA or NUR (in the cases of Mr. Young and Mr. Webster) or of losing jobs for which union membership had not been a requirement when they were first engaged and which two of them had held for several years. Each applicant regarded the membership condition introduced by that agreement as an interference with the freedom of association to which he considered that he was entitled; in addition, Mr. Young and Mr. Webster had objections to trade union policies and activities coupled, in the case of Mr. Young, with objections to the political affiliations of the specified unions (see paragraphs 34, 37 and 43 above). As a result of their refusal to yield to what they considered to be unjustified pressure, they received notices terminating their employment. Under the legislation in force at the time (see paragraphs 17 and 20-23 above), their dismissal was \"fair\" and, hence, could not found a claim for compensation, let alone reinstatement or re-engagement.", "55. The situation facing the applicants clearly runs counter to the concept of freedom of association in its negative sense.", "Assuming that Article 11 (art. 11) does not guarantee the negative aspect of that freedom on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention.", "However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion and, in the present instance, it was directed against persons engaged by British Rail before the introduction of any obligation to join a particular trade union.", "In the Court ’ s opinion, such a form of compulsion, in the circumstances of the case, strikes at the very substance of the freedom guaranteed by Article 11 (art. 11). For this reason alone, there has been an interference with that freedom as regards each of the three applicants.", "56. Another facet of this case concerns the restriction of the applicants ’ choice as regards the trade unions which they could join of their own volition. An individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value (see, mutatis mutandis, the Airey judgment of 9 October 1979, Series A no. 32, p. 12, par. 24).", "The Government submitted that the relevant legislation (see paragraph 26 above) not only did not restrict but also expressly protected freedom of action or choice in this area; in particular, it would have been open to the applicants to form or to join a trade union in addition to one of the specified unions. The applicants, on the other hand, claimed that this was not the case in practice, since such a step would have been precluded by British Rail ’ s agreement with the railway unions and by the Bridlington Principles (see paragraph 27 above); in their view, joining and taking part in the activities of a competing union would, if attempted, have led to expulsion from one of the specified unions. These submissions were, however, contested by the Government.", "Be that as it may, such freedom of action or choice as might have been left to the applicants in this respect would not in any way have altered the compulsion to which they were subjected since they would in any event have been dismissed if they had not become members of one of the specified unions.", "57. Moreover, notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Articles 9 and 10 (art. 9, art. 10) (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 26, par. 52).", "Mr. Young and Mr. Webster had objections to trade union policies and activities, coupled, in the case of Mr. Young, with objections to the political affiliations of TSSA and NUR (see paragraphs 34 and 43 above). Mr. James ’ objections were of a different nature, but he too attached importance to freedom of choice and he had reached the conclusion that membership of NUR would be of no advantage to him (see paragraph 37 above).", "The protection of personal opinion afforded by Articles 9 and 10 (art. 9, art. 10) in the shape of freedom of thought, conscience and religion and of freedom of expression is also one of the purposes of freedom of association as guaranteed by Article 11 (art. 11). Accordingly, it strikes at the very substance of this Article (art. 11) to exert pressure, of the kind applied to the applicants, in order to compel someone to join an association contrary to his convictions.", "In this further respect, the treatment complained of - in any event as regards Mr. Young and Mr. Webster - constituted an interference with their Article 11 (art. 11) rights.", "2. The existence of a justification for the interference found by the Court", "58. The Government expressly stated that, should the Court find an interference with a right guaranteed by paragraph 1 of Articles 9, 10 or 11 (art. 9-1, art. 10-1, art. 11-1), they would not seek to argue that such interference was justified under paragraph 2.", "The Court has nevertheless decided that it should examine this issue of its own motion, certain considerations of relevance in this area being contained in the documents and information with which it has been furnished.", "59. An interference with the exercise of an Article 11 (art. 11) right will not be compatible with paragraph 2 (art. 11-2) unless it was \"prescribed by law\", had an aim or aims that is or are legitimate under that paragraph and was \"necessary in a democratic society\" for the aforesaid aim or aims (see, mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A no. 30, p. 29, par. 45).", "60. The applicants argued that the restrictions of which they complained met none of these three conditions.", "The Court does not find it indispensable to determine whether the first two conditions were satisfied, these being issues which were not fully argued before it. It will assume that the interference was \"prescribed by law\", within the meaning of the Convention (see the above-mentioned Sunday Times judgment, pp. 30-31, par. 46-49), and had the aim, amongst other things, of protecting the \"rights and freedoms of others\", this being the only of the aims listed in paragraph 2 that might be relevant.", "61. In connection with the last point, the Court ’ s attention has been drawn to a number of advantages said to flow from the closed shop system in general, such as the fostering of orderly collective bargaining, leading to greater stability in industrial relations; the avoidance of a proliferation of unions and the resultant trade union anarchy; the counteracting of inequality of bargaining power; meeting the need of some employers to negotiate with a body fully representative of the workforce; satisfying the wish of some trade unionists not to work alongside non-union employees; ensuring that trade union activities do not benefit of those who make no financial contribution thereto.", "Any comment on these arguments would be out of place in the present case since the closed shop system as such is not under review (see paragraph 53 above).", "62. On the other hand, what has to be determined is the \"necessity\" for the interference complained of: in order to achieve the aims of the unions party to the 1975 agreement with British Rail, was it \"necessary in a democratic society\" to make lawful the dismissal of the applicants, who were engaged at a time when union membership was not a condition of employment?", "63. A number of principles relevant to the assessment of the \"necessity\" of a given measure have been stated by the Court in its Handyside judgment of 7 December 1976 (Series A no. 24).", "Firstly, \"necessary\" in this context does not have the flexibility of such expressions as \"useful\" or \"desirable\" (p. 22, par. 48). The fact that British Rail ’ s closed shop agreement may in a general way have produced certain advantages is therefore not of itself conclusive as to the necessity of the interference complained of.", "Secondly, pluralism, tolerance and broadmindedness are hallmarks of a \"democratic society\" (p. 23, par. 49). Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Accordingly, the mere fact that the applicants ’ standpoint was adopted by very few of their colleagues is again not conclusive of the issue now before the Court.", "Thirdly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (p. 23, par. 49).", "64. The Court has noted in this connection that a majority of the Royal Commission on Trade Unions and Employers ’ Associations, which reported in 1968, considered that the position of existing employees in a newly-introduced closed shop was one area in which special safeguards were desirable (see paragraph 14 above). Again, recent surveys suggest that, even prior to the entry into force of the Employment Act 1980 (see paragraph 24 above), many closed shop arrangements did not require existing non-union employees to join a specified union (see paragraph 13 above); the Court has not been informed of any special reasons justifying the imposition of such a requirement in the case of British Rail. Besides, according to statistics furnished by the applicants, which were not contested, a substantial majority even of union members themselves disagreed with the proposition that persons refusing to join a union for strong reasons should be dismissed from employment. Finally, in 1975 more than 95 per cent of British Rail employees were already members of NUR, TSSA or ASLEF (see paragraph 31 above).", "All these factors suggest that the railway unions would in no way have been prevented from striving for the protection of their members ’ interests (see the above-mentioned National Union of Belgian Police judgment, p. 18, par. 39) through the operation of the agreement with British Rail even if the legislation in force had not made it permissible to compel non-union employees having objections like the applicants to join a specified union.", "65. Having regard to all the circumstances of the case, the detriment suffered by Mr. Young, Mr. James and Mr. Webster went further than was required to achieve a proper balance between the conflicting interests of those involved and cannot be regarded as proportionate to the aims being pursued. Even making due allowance for a State ’ s \"margin of appreciation\" (see, inter alia, the above-mentioned Sunday Times judgment, p. 36, par. 59), the Court thus finds that the restrictions complained of were not\" necessary in a democratic society\", as required by paragraph 2 of Article 11 (art. 11-2).", "There has accordingly been a violation of Article 11 (art. 11).", "III. THE ALLEGED VIOLATION OF ARTICLES 9 AND 10 (art. 9, art. 10)", "66. The applicants alleged that the treatment of which they complained also gave rise to breaches of Articles 9 and 10 (art. 9, art. 10). This was contested by the Government.", "Having taken account of these Articles (art. 9, art. 10) in the context of Article 11 (art. 11) (see paragraph 57 above), the Court, like the Commission, does not consider it necessary to determine whether they have been violated in themselves.", "IV. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)", "67. Having regard to its decision on Article 11 (art. 11) (see paragraph 65 above), the Court does not consider it necessary to determine whether there has in addition been a violation of Article 13 (art. 13), on which the applicants also relied.", "V. THE APPLICATION OF ARTICLE 50 (art. 50)", "68. Counsel for the applicants indicated that, should the Court find a violation, his clients would seek just satisfaction under Article 50 (art. 50) in respect of material losses, legal costs and allied expenses, non-material damages and the damage, both pecuniary and moral, suffered in being deprived of rights and freedoms guaranteed by the Convention. He did not fully quantify their claims and suggested that this issue might be adjourned for further consideration.", "The Government confined themselves to observing that the question of the application of Article 50 (art. 50) was not relevant at this stage.", "69. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision and must be reserved; in the circumstances of the case, the Court considers that the question should be referred back to the Chamber under Rule 50 par. 4 of the Rules of Court." ]

[ "I. PARTICULAR CIRCUMSTANCES OF THE THE CASE", "9. From the summer of 1987 until the end of the summer of 1990 the applicant owned the summer restaurant Ihrebaden at Ihreviken, Tingstäde, on the island of Gotland. The applicant further owned - and continues to own - the youth hostel Lummelunda at Nyhamn, Visby, also on Gotland. The restaurant’s employees numbered less than ten. They were engaged on a seasonal basis, but had the option of being re-employed the following year. The applicant’s ownership of the restaurant and youth hostel was direct and entailed his personal financial liability (enskild firma).", "10. As the applicant was not a member of either of the two associations of restaurant employers, namely the Swedish Hotel and Restaurant Entrepreneurs’ Union (Hotell- och Restaurangar - betsgivareföreningen - \"HRAF\", which is affiliated to the Swedish Employers’ Confederation (Svenska Arbetsgivareföreningen - \"SAF\")) and the Employers’ Association of the Swedish Union of Restaurant Owners (Svenska Restauratörsförbundets Arbetsgivareförening - \"SRA\"), he was not bound by any collective labour agreement (kollektivavtal) between the two associations and the Hotel and Restaurant Workers’ Union (Hotell- och Restauranganställdas Förbund - \"HRF\"). Nor was he obliged to subscribe to the various labour-market insurance schemes (Arbetsmarknadsförsäkring) developed through agreements between SAF and the Swedish Trade Union Confederation (Landsorganisationen).", "It was, however, open to the applicant to accede to a collective agreement by accepting a substitute agreement (hängavtal). He could also subscribe to insurance schemes with Labour-Market Insurances or any of the other ten or so insurance companies in the field.", "11. In late June or early July 1987 he refused to sign a separate substitute agreement with HRF. He referred to his objections of principle regarding the system of collective bargaining. He also emphasised that his employees were paid more than they would have been under a collective agreement and that they themselves objected to his signing a substitute agreement on their behalf.", "The substitute agreement proposed to the applicant included these terms:", "\"Parties: [The applicant] and [HRF]", "Term of validity: From 1 July 1987 up to and including31 December 1988, thereafter for one year at a time, unlessnotice is given two months prior to the expiry of the[agreement]", "...", "As from the [above] date, the most recent agreement between[the employers’ association] and [HRF] shall be applied between[the applicant and HRF]. Should [the employers’ association]and [HRF] subsequently reach a new agreement or agree to amendor supplement the [present] agreement, [the new agreement,amendments or supplements] shall automatically apply as fromthe day on which [it or they] [has or have] been [agreed upon].", "...", "1. [The employer shall] [on his employees’ behalf] subscribeto and maintain [five different] insurance-policy schemes withLabour-Market Insurances, ... as well as other possibleinsurance-policy schemes which [the employers’ association andHRF] might later agree upon.", "2. [The employer shall] issue employment certificates on aspecial form ... A copy shall be sent to [HRF].", "3. [The employer shall] only employ [workers who are members]of or [have] requested membership of [HRF]. In the event ofre-employment the provisions of section 25 of the EmploymentProtection Act (lag (1982:80) om anställnings-skydd) shallapply.", "4. [The employer shall] deduct on a monthly basis a part ofthe salary of employed members of [HRF] corresponding to theirmembership fees, and pay [the deducted part] to [HRF].", "...\"", "12. On 16 July 1987, during further negotiations with the applicant, HRF proposed another substitute agreement, which he also rejected:", "\"Subject: The signing of a collective agreement regarding [therestaurant] Ihrebaden ... and the Lummelunda youth hostel.", "1. Having regard to the forthcoming end of the [season of1987] the parties agree on the following procedure replacing the signing of a collective agreement.", "The enterprise agrees to comply, during this season ..., with the collective labour agreement (`the green nationalagreement’) between [HRAF] and [HRF], this including the obligation to subscribe to [certain] insurance schemes(avtalsförsäkringar) with Labour-Market Insurances.", "2. The enterprise also agrees to [comply with] [the]collective labour agreement ... during the next season ...,either by way of membership of the employers’ union or bysigning a ... substitute agreement ...\"", "13. Had the applicant accepted a substitute agreement, it would have applied not only to those of his employees who were unionised but also to those who were not.", "In the summer of 1986, one member of HRF was employed by the applicant. In 1987 he employed another member of that union and also two persons who were respectively members of the Commercial Employees’ Union (Handelsanställdas Förbund) and the Union of Municipal Workers (Kommunalarbetareförbundet). In 1989, one member of the latter union was employed by the applicant.", "14. Following the applicant’s refusal to sign a substitute agreement, HRF, in July 1987, placed his restaurant under a \"blockade\" and declared a boycott against it. Sympathy industrial action was taken the same month by the Commercial Employees’ Union and the Swedish Food Workers’ Union (Svenska Livsmedelsarbetareförbundet).", "In the summer of 1988 sympathy action was also taken by the Swedish Transport Workers’ Union (Svenska transportarbetareförbundet) and the Union of Municipal Employees (Kommunaltjenestemannaförbundet). As a result deliveries to the restaurant were stopped.", "15. One of the persons employed by the applicant at Ihre baden who was member of HRF had publicly expressed the opinion that the industrial action was unnecessary, as the salary and working conditions in the restaurant were not open to criticism.", "According to the Government, the union action had its background in a request for assistance in 1986 by an HRF member employed by the applicant. In the view of the union, the applicant paid his employees approximately 900 Swedish kronor (SEK) a month less than what they would have received under a collective agreement. He did not pay his staff holiday compensation as provided for in the 1977 Annual Leave Act (semesterlagen 1977:480), nor salary during lay-offs due to poor weather conditions as required by the 1982 Employment Protection Act and he did not sign a labour-market insurance until 1988.", "16. In August 1988 the applicant, invoking the Convention, requested the Government to prohibit HRF from continuing the blockade and the other trade unions from continuing their sympathy action and to order the unions to pay compensation for damages. In the alternative, he requested that compensation be paid by the State.", "17. By a decision of 12 January 1989 the Government (Ministry of Justice) dismissed the applicant’s request. The Government stated:", "\"The requests for a prohibition of the blockade and thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects.According to Chapter 11, Article 3, of the Instrument of Government [Regeringsformen which forms part of theConstitution], such disputes may not be determined by anypublic authority other than a court of law, except by virtueof law. There is no provision in the law which authorises theGovernment to examine such disputes. The Government will not,therefore, examine these requests on the merits.", "The claim for damages is dismissed.\"", "18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lag (1988:205) om rättsprövning av vissa förvaltningsbeslut - \"the 1988 Act\"). On 29 June 1989 the Supreme Administrative Court dismissed the application on the ground that the Government’s decision did not concern an administrative matter involving the exercise of public power, which was a condition for review under section 1 of the Act.", "19. On 15 September 1989 the Swedish Touring Club (Svenska turistföreningen - \"STF\"), a non-profit-making association promoting tourism in Sweden, terminated the membership of the applicant’s youth hostel, referring to a lack of cooperation and the applicant’s negative attitude towards STF. As a result, the hostel was no longer mentioned in STF’s catalogue of youth hostels in Sweden. In 1989 about half of the youth hostels in Sweden were enrolled in STF.", "20. The applicant brought proceedings in the District Court (tingsrätten) of Stockholm. He contested what he considered to be his personal exclusion from STF, alleging that it had been caused by HRF threats that it would take industrial action against other youth hostels enrolled in STF if his hostel was not excluded. He also challenged STF’s termination of the membership of his youth hostel.", "STF accepted, inter alia, that although the termination of the membership contract concerning the applicant’s youth hostel had not been prompted by the conflict between the applicant and the trade unions, this conflict might have affected the timing of the decision. STF also referred to an opinion of the Competition Ombudsman (ombudsmannen för näringsfrihet) of 14 November 1989 to the effect that the termination of the contract in question would have only a very limited impact on his business.", "21. By a judgment of 8 May 1991 the District Court rejected the applicant’s action on both points. It found, inter alia, that the applicant had not shown that he had been personally excluded from STF by virtue of the termination of STF’s contract concerning his youth hostel. It also found that he had not shown that the contract had been financially significant to his business. Reference was made to the Competition Ombudsman’s finding.", "22. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) which, on 6 March 1992, upheld the District Court’s judgment. The Court of Appeal found, inter alia, that STF’s termination of the contract concerning the youth hostel had entailed the expiry of the applicant’s personal membership of STF. This, however, had not been tantamount to his exclusion, given that he could have continued or renewed his membership. Moreover, although the contract had been of appreciable significance to the applicant’s business, STF’s termination of the contract could not be considered unreasonable.", "23. At the beginning of 1991 the applicant sold his restaurant due to his difficulties in running his business which had allegedly been caused by the industrial action. The restaurant was bought by a person who signed a collective agreement with HRF. He continued, together with his family, to run the youth hostel in Lummelunda.", "Following the above, the union action was terminated.", "24. On 9 November 1991 the applicant requested the Government to support his application to the Commission. On 12 December 1991 the Government decided not to take any action in respect of the request." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Freedom of association", "25. Chapter 2, Article 1, of the Instrument of Government provides:", "\"All citizens shall be guaranteed the following in theirrelations with the public authorities:", "1. freedom of expression: the freedom to communicateinformation and to express ideas, opinions and emotions whether orally, in writing, in pictorial representations, or in anyother way;", "...", "5. freedom of association: the freedom to unite with othersfor public or private purposes; ...\"", "26. According to Chapter 2, Article 2:", "\"All citizens shall be protected in their relations with the public authorities against all coercion designed to compel themto divulge an opinion in any political, religious, cultural orother similar connection. They shall furthermore be protectedin their relations with the public authorities against allcoercion designed to compel them to participate in any meetingfor the formation of opinion or in any demonstration or otherexpression of opinion or to belong to any politicalassociation, religious congregation or other association foropinions of the nature referred to in the first sentence.\"", "27. Chapter 2, Article 12 paras. 1 and 2, reads:", "\"The freedoms and rights referred to in Article 1 paras. 1 to5 ... may be restricted by law to the extent provided for inArticles 13-16 ...", "The restrictions referred to in the preceding subsection mayonly be imposed to achieve a purpose which is acceptable in ademocratic society. The restriction may never exceed what isnecessary having regard to the purpose which occasioned it, normay it be carried so far as to constitute a threat to the freeformation of opinion as one of the foundations of democracy.No restriction may be imposed solely on grounds of political,religious, cultural or other such opinions.\"", "28. Chapter 2, Article 14 para. 2 provides:", "\"Freedom of association may only be restricted in respect of organisations whose activities are of a military nature or the like or which involve the persecution of a population group of a particular race, skin colour or ethnic origin.\"", "29. Pursuant to Chapter 2, Article 17:", "\"Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement.\"", "B. Right of association", "30. Section 7 of the 1976 Act on Co-Determination at Work reads:", "\"Right of association means the right of employers andemployees to belong to an organisation of employers oremployees, to benefit from their membership as well as to workfor an organisation or for the founding of one.\"", "31. Section 8 provides:", "\"The right of association shall not be violated. A violation... will occur, if anyone from the employer’s side or the employee’s side takes any action to the detriment of anybodyon the other side by reason of that person having exercised hisright of association, or if anybody on either side takes anyaction against anybody on the other side with a view toinducing that person not to exercise his right of association.A violation will occur even if the action so taken is designedto fulfil an obligation towards another party.", "An employers’ or employees’ organisation shall not have to tolerate a violation of its right of association encroaching upon its activities. Where there is both a local and a central organisation, these provisions shall apply to the central organisation.", "If the right of association is violated by termination of anagreement or another legal measure or by a provision in acollective agreement or other contract, that measure orprovision shall be void.\"", "32. According to section 10:", "\"An employees’ organisation shall have the right to negotiatewith an employer regarding any matter relating to therelationship between the employer and any member of theorganisation who is or has been employed by that employer. Anemployer shall have a corresponding right to negotiate with anemployees’ organisation.", "A right of negotiation ... shall also be enjoyed by the employees’ organisation in relation to any organisation towhich an employer belongs, and by the employers’ organisationin relation to the employees’ organisation.\"", "C. Judicial remedies", "33. Chapter 11, Article 3, of the Instrument of Government provides:", "\"Legal disputes between private subjects shall only be settledby a court of law, unless otherwise provided by law ...\"", "34. In principle, it is possible for an employer against whom industrial action has been instituted to request a court injunction requiring that the action cease, and to claim damages. Such orders may be made by the relevant court if the industrial action is unlawful or in breach of an existing collective agreement.", "If the industrial action amounts to a criminal offence, a claim for compensation may be made under Chapter 2, section 4, of the 1972 Compensation Act (skadeståndslag 1972:207).", "35. Pursuant to section 1 of the 1988 Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only judicial instance, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kind of administrative decision covered by the Act is further defined in Chapter 8, Articles 2 and 3, of the Instrument of Government, to which section 1 of the 1988 Act refers. According to these provisions the Act encompasses measures concerning, inter alia, personal and economic matters arising in relations between private persons and between such persons and the State. Section 2 of the Act specifies several types of decision which fall outside its scope, none of which are relevant in the instant case.", "In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision \"conflicts with any legal rule\" (section 1 of the 1988 Act). If the court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority (section 5 of the 1988 Act).", "PROCEEDINGS BEFORE THE COMMISSION", "36. In his application to the Commission of 1 July 1989 (no. 15573/89) Mr Gustafsson complained that the lack of State protection against the industrial action taken against his restaurant gave rise to a violation of his right to freedom of association as guaranteed by Article 11 (art. 11) of the Convention and also of his right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 (P1-1), in conjunction with Article 17 (art. 17) of the Convention. He further alleged breaches of his rights under Article 6 para. 1 (art. 6-1) (right to a fair hearing) and Article 13 (art. 13) (right to an effective remedy), complaining that the court remedies to which he could have recourse in order to challenge the industrial action would have been ineffective since such action was lawful under Swedish law.", "37. On 8 April 1994 the Commission declared the application admissible. In its report of 10 January 1995 (Article 31) (art. 31), the Commission expressed the opinion that", "(a) there had been a violation of Article 11 (art. 11) (by thirteen votes to four);", "(b) it was not necessary to examine the complaint under Article 1 of Protocol No. 1 (P1-1) in conjunction with Article 17 (art. 17) of the Convention (by eleven votes to six);", "(c) there had been no violation of Article 6 para. 1 (art. 6-1) of the Convention (by sixteen votes to one);", "(d) there had been a violation of Article 13 (art. 13) of the Convention (by fourteen votes to three).", "The full text of the Commission’s opinion and of the four separate opinions contained in the report is reproduced as an annex to this judgment [2].", "FINAL SUBMISSIONS MADE TO THE COURT", "38. At the hearing on 22 November 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of the Convention in the present case.", "39. On the same occasion the applicant reiterated his request to the Court stated in his memorial to find that there had been violations of Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention, and of Article 1 of Protocol No. 1 (P1-1) in conjunction with Article 17 (art. 17) of the Convention.", "AS TO THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE CONVENTION", "40. The applicant complained that the union action had infringed his right to freedom of association and that the failure of the respondent State to protect him against this action constituted a violation of Article 11 (art. 11) of the Convention, which reads:", "\"1. Everyone has the right to freedom of peaceful assembly andto freedom of association with others, including the right toform and to join trade unions for the protection of hisinterests.", "\"2. No restrictions shall be placed on the exercise of theserights other than such as are prescribed by law and arenecessary in a democratic society in the interests of nationalsecurity or public safety, for the prevention of disorder orcrime, for the protection of health or morals or for theprotection of the rights and freedoms of others. This Article(art. 11) shall not prevent the imposition of lawfulrestrictions on the exercise of these rights by members of thearmed forces, of the police or of the administration of theState.\"", "41. The Government disputed this contention, whereas the Commission shared the applicant’s view that there had been a violation.", "A. Applicability of Article 11 (art. 11)", "42. The Government contested the applicability of Article 11 (art. 11) to the matters complained of by the applicant. Unlike the applicants in previous cases where the Court had recognised a negative right to freedom of association (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, pp. 21-22, paras. 55-58; and the Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, pp. 15-16, para. 35), the applicant in the present case had not been compelled to join an association. The union action had primarily been aimed at making the applicant apply to his employees a certain agreement negotiated by the relevant labour organisations. This could have been achieved not only by the applicant joining one of the two employers’ associations in the trade - the Swedish Hotel and Restaurant Entrepreneurs’ Union (\"HRAF\") and the Employers’ Association of the Swedish Union of Restaurant Owners (\"SRA\") - but also by his signing with the Hotel and Restaurant Workers’ Union (\"HRF\") a substitute agreement to the existing collective agreements applied in the restaurant trade (see paragraph 10 above). He could have avoided the union action by availing himself of the possibility of entering into negotiations with the union with a view to reaching a solution based on a substitute agreement drafted in a way that was adapted to the special character of the business run by the applicant (see paragraphs 11 and 12 above). The conclusion of such an agreement might have affected the applicant’s freedom as an employer to conclude contracts with his employees, but this freedom was not as such guaranteed by the Convention.", "The Government in addition pointed out that in practice the union action had essentially had the effect of stopping deliveries of goods to his restaurant (see paragraph 14 above) and had not involved occupation or picketing of the applicant’s business premises. Nor had he substantiated his claim that he had had to sell the restaurant or had suffered any other form of pecuniary damage as a result of the industrial action.", "43. The applicant and the Commission maintained that the unions’ boycott and blockade of his business had affected his right to negative freedom of association. Admittedly, had the applicant concluded a substitute agreement, the primary purpose of the action, namely to achieve the largest possible acceptance and the widest possible application of the collective agreement to which HRF was a party, could have been attained without the applicant becoming a member of HRAF or SRA. However, the applicant objected not only to formal membership but also to participation in the collective-bargaining system, since in both cases he would have become bound by a collective agreement with HRF. One of the most important effects of membership of an employers’ association in Sweden was the members’ participation, through the association, in collective bargaining and their undertaking to be bound by any collective agreement concluded by the association. Therefore, even though the applicant had had the possibility of accepting these obligations without formally joining HRAF or any other association, it would be artificial and formalistic to deny that his negative freedom of association had been affected.", "44. The Court considers that although the extent of the inconvenience or damage caused by the union action to the applicant’s business may be open to question, the measures must have entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement. He had two alternative means of doing so: either by joining an employers’ association, which would have made him automatically bound by a collective agreement, or by signing a substitute agreement (see paragraphs 10 and 11 above). The Court accepts that, to a degree, the enjoyment of his freedom of association was thereby affected. Article 11 (art. 11) is thus applicable in the present case. The Court will therefore examine whether there was an infringement of his right to freedom of association for which the respondent State was responsible.", "B. Compliance with Article 11 (art. 11)", "1. General principles", "45. The matters complained of by the applicant, although they were made possible by national law, did not involve a direct intervention by the State. The responsibility of Sweden would nevertheless be engaged if those matters resulted from a failure on its part to secure to him under domestic law the rights set forth in Article 11 (art. 11) of the Convention (see, amongst others, the Sibson v. the United Kingdom judgment of 20 April 1993, Series A no. 258-A, p. 13, para. 27). Although the essential object of Article 11 (art. 11) is to protect the individual against arbitrary interferences by the public authorities with his or her exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights.", "In the most recent judgment delivered in this connection, Article 11 (art. 11) of the Convention has been interpreted to encompass not only a positive right to form and join an association, but also the negative aspect of that freedom, namely the right not to join or to withdraw from an association (see the above-mentioned Sigurdur A. Sigurjónsson judgment, pp. 15-16, para. 35). Whilst leaving open whether the negative right is to be considered on an equal footing with the positive right, the Court has held that, although compulsion to join a particular trade union may not always be contrary to the Convention, a form of such compulsion which, in the circumstances of the case, strikes at the very substance of the freedom of association guaranteed by Article 11 (art. 11) will constitute an interference with that freedom (see, for instance, the above-mentioned Sibson judgment, p. 14, para. 29).", "It follows that national authorities may, in certain circumstances, be obliged to intervene in the relationships between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of the negative right to freedom of association (see, mutatis mutandis, the Plattform \"Ärzte für das Leben\" v. Austria judgment of 21 June 1988, Series A no. 139, p. 12, paras. 32-34).", "At the same time it should be recalled that, although Article 11 (art. 11) does not secure any particular treatment of the trade unions, or their members, by the State, such as a right to conclude any given collective agreement, the words \"for the protection of [their] interests\" in Article 11 para. 1 (art. 11-1) show that the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action. In this respect the State has a choice as to the means to be used and the Court has recognised that the concluding of collective agreements may be one of these (see, for instance, the Swedish Engine Drivers’ Union v. Sweden judgment of 6 February 1976, Series A no. 20, pp. 15-16, paras. 39-40).", "In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and, in particular, in assessing the appropriateness of State intervention to restrict union action aimed at extending a system of collective bargaining, and the wide degree of divergence between the domestic systems in the particular area under consideration, the Contracting States should enjoy a wide margin of appreciation in their choice of the means to be employed.", "2. Application of the foregoing principles", "46. The applicant emphasised that he objected to becoming bound by a collective agreement mainly on grounds of political and philosophical conviction. Rather than subjecting himself and his employees to union corporatism, he wished to retain the personal character of the relationship between himself as employer and his employees.", "The applicant and the Commission were of the view that the pressure which was brought to bear upon him was such as to require the Swedish authorities to take positive measures of protection. Because of the blockade and boycott, he was largely prevented from obtaining deliveries of the necessary goods for the running of his restaurant (see paragraph 14 above). As a result, the applicant’s business suffered considerably and he had to sell the restaurant (see paragraph 23 above). These harsh measures had not been counterbalanced by any strong legitimate interests of HRF in forcing the applicant to sign a collective agreement. When taking action against the applicant, HRF had not represented any members employed by him. The only HRF member who was employed by the applicant had not asked for the union’s assistance but had expressly stated that she found the industrial action unnecessary, as the terms of employment offered by him were not open to criticism (see paragraph 15 above). On the contrary, they were more favourable than those which would have applied under the collective agreement in force. For these reasons HRF’s action was disproportionate to the interests which it sought to protect.", "In such circumstances, the applicant and the Commission underlined, it was incumbent on the respondent State to provide for effective legal redress, for instance by making available to the applicant legal procedures which would have made it possible for him to mitigate or terminate the action taken against him. Since no such legal protection existed in Swedish law, the facts giving rise to the applicant’s complaint constituted a violation of his rights under Article 11 (art. 11) of the Convention.", "47. The applicant further considered that the Government, having refrained from arguing before the Commission that the union action was justified, were estopped from changing their stance and adducing evidence in this respect in the proceedings before the Court.", "The Commission’s Delegate pointed out that the additional information and fresh arguments submitted by the Government on this point could and should have been adduced and invoked before the Commission. She invited the Court to consider very carefully what weight could be given to that information and to those arguments at this late stage of the proceedings.", "48. The Government, in their memorial to the Court, stressed for the first time that the Commission’s finding that the terms of employment of the applicant’s employees were more favourable than those that would have applied under a collective agreement, was based on the applicant’s own submissions to the Commission and had never been confirmed or accepted by the Government. Before the Court, the Government, relying on information provided by HRF, disputed this finding. The collective agreement which the union sought to achieve with the applicant had had the aim of substantially improving the economic and social conditions for the applicant’s existing and future employees (see paragraph 15 above). In the absence of a collective agreement governing the relationship between the applicant and his employees, the latter could not benefit from the protection provided in important parts of the Swedish labour legislation. The working conditions applied by the applicant gave him a competitive advantage over other restaurant owners.", "49. In the Government’s opinion, the applicant was in effect challenging a system that had been applied in Sweden for sixty years and which could be said to have formed one of the most important elements in what had become known as the \"Swedish model\" of industrial relations, believed by many to have contributed significantly to the Swedish Welfare State. The Government stated that in Sweden most major employers were affiliated to an employers’ organisation bound by a collective agreement and about 85% of employees were unionised. An essential and long-standing feature of the Swedish model was that industrial relations were determined primarily by the parties to the labour-market rather than by State intervention. Thus, wages, working hours, leave entitlements and various other kinds of terms of employment were governed by collective agreements, covering 90% of the labour-market, rather than by legislation. Another important feature was that employers should not be able to gain a competitive advantage over their competitors by offering less favourable working conditions than those provided for by collective agreements.", "Moreover, the Government pointed out that, as a result of the prohibition under Swedish law to resort to strikes, boycotts and other means in industrial relations governed by a collective agreement, such actions had been kept at a tolerable level for many years. On the other hand, unions not bound by a collective agreement with a particular employer had been left with a wide discretion in taking measures to make that employer sign a collective agreement. This reflected the importance the legislator had attached to the right of trade unions to promote their interests.", "50. In these circumstances, the Government considered that Sweden was not under an obligation under Article 11 (art. 11) of the Convention to take positive measures to protect the applicant against the union action.", "51. As to the particular circumstances of the present case, the Court notes from the outset that the additional information concerning the terms and conditions of employment adduced by the Government before it supplement the facts underlying the application declared admissible by the Commission. The Court is not prevented from taking them into account in determining the merits of the applicant’s complaints under the Convention if it considers them relevant (see the Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 20, paras. 41-42; and the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 51, para. 73).", "52. As indicated earlier (see paragraph 44 above), the union action must have entailed a considerable pressure on the applicant to meet the union’s demand that he accept to be bound by a collective agreement, either by joining an employers’ association or by signing a substitute agreement. However, only the first alternative involved membership of an association.", "It is true that, had the applicant opted for the second alternative, he might have had less opportunity to influence the contents of future collective agreements than as a member of an employers’ association. On the other hand, a substitute agreement offered the advantage that it would have been possible to include in it individual clauses tailored to the special character of the applicant’s business. In any event, it does not appear, nor has it been contended, that the applicant was compelled to opt for membership of an employers’ association because of economic disadvantages attached to the substitute agreement.", "In reality the applicant’s principal objection to the second alternative was, as in relation to the first alternative, of a political nature, namely his disagreement with the collective-bargaining system in Sweden. However, Article 11 (art. 11) of the Convention does not as such guarantee a right not to enter into a collective agreement (see the above-mentioned Swedish Engine Drivers’ Union judgment, pp. 15-16, paras. 40-41). The positive obligation incumbent on the State under Article 11 (art. 11), including the aspect of protection of personal opinion, may well extend to treatment connected with the operation of a collective-bargaining system, but only where such treatment impinges on freedom of association. Compulsion which, as here, does not significantly affect the enjoyment of that freedom, even if it causes economic damage, cannot give rise to any positive obligation under Article 11 (art. 11).", "53. Furthermore, the applicant has not substantiated his submission to the effect that the terms of employment which he offered were more favourable than those required under a collective agreement. Bearing in mind the special role and importance of collective agreements in the regulation of labour relations in Sweden, the Court sees no reason to doubt that the union action pursued legitimate interests consistent with Article 11 (art. 11) of the Convention (see, for instance, the above-mentioned Swedish Engine Drivers’ Union judgment, pp. 15-16, para. 40; and the Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 16, para. 36). It should also be recalled in this context that the legitimate character of collective bargaining is recognised by a number of international instruments, in particular Article 6 of the European Social Charter, Article 8 of the 1966 International Covenant on Economic, Social and Cultural Rights and Conventions nos. 87 and 98 of the International Labour Organisation (the first concerning freedom of association and the right to organise and the second the application of the principles of the right to organise and to bargain collectively).", "54. In the light of the foregoing, having regard to the margin of appreciation to be accorded to the respondent State in the area under consideration, the Court does not find that Sweden failed to secure the applicant’s rights under Article 11 (art. 11) of the Convention.", "55. In sum, the Court reaches the conclusion that the facts of the present case did not give rise to a violation of Article 11 (art. 11) of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)", "56. The applicant, referring to his allegations mentioned above (see paragraphs 39, 43, 46 and 47 above), submitted that the respondent State’s failure to provide protection against the industrial action had caused him pecuniary damage, in violation of Article 1 of Protocol No. 1 (P1-1), which reads:", "\"Every natural or legal person is entitled to the peacefulenjoyment of his possessions. No one shall be deprived of hispossessions except in the public interest and subject to theconditions provided for by law and by the general principlesof international law.", "The preceding provisions shall not, however, in any way impairthe right of a State to enforce such laws as it deems necessaryto control the use of property in accordance with the generalinterest or to secure the payment of taxes or othercontributions or penalties.\"", "The applicant contended that, as a consequence of the union action, he had had to sell his restaurant (see paragraph 23 above) at a loss of SEK 600,000.", "57. The Government disputed the above allegation, whereas the Commission, having regard to its finding of a violation of Article 11 (art. 11), did not find it necessary to address the issue under Article 1 of Protocol No. 1 (P1-1).", "58. The Government conceded that the industrial action, having mainly the effect that the applicant’s suppliers could not deliver goods necessary for the running of his restaurant, must have led to difficulties in the running of the applicant’s business. However, the applicant had failed to substantiate any actual financial damage caused thereby and the Government had doubts as to how serious the consequences actually were for his business. The Government also denied that this matter, which essentially concerned the contractual relationships between the applicant and his suppliers, could engage the responsibility of the State under Article 1 of Protocol No. 1 (P1-1). The State had not interfered with the applicant’s business but had only passively tolerated the trade unions’ activities in an open market. The situation was comparable to a consumer boycott instituted against a private company. Yet customers should be free to take such measures without the State incurring liability, even if the boycott led to bankruptcy of the company.", "59. According to the Court’s case-law, Article 1 (P1-1), which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph (P1-1) and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph (P1-1), covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph (P1-2), recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see, among other authorities, the Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, pp. 21-22, para. 33).", "It was not contended that the second and third rules above were applicable and the Court sees no reason to hold otherwise. On the other hand, the applicant alleged that there had been a violation of the first rule, namely the right \"to the peaceful enjoyment of his possessions\".", "60. Admittedly, the State may be responsible under Article 1 (P1-1) for interferences with peaceful enjoyment of possessions resulting from transactions between private individuals (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 28-29, paras. 35-36). In the present case, however, not only were the facts complained of not the product of an exercise of governmental authority, but they concerned exclusively relationships of a contractual nature between private individuals, namely the applicant and his suppliers or deliverers. In the Court’s opinion, such repercussions as the stop in deliveries had on the applicant’s restaurant were not such as to bring Article 1 of Protocol No. 1 (P1-1) into play.", "III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION", "61. The applicant alleged that there had been a breach of Article 6 para. 1 (art. 6-1) of the Convention on the ground that the court remedies at his disposal in order to obtain protection against the industrial action would not have been effective. Article 6 para. 1 (art. 6-1), in so far as is relevant, reads:", "\"In the determination of his civil rights and obligations ...,everyone is entitled to a fair and public hearing ... by [a]... tribunal ...\"", "62. In the Government’s and the Commission’s opinion, Article 6 para. 1 (art. 6-1) was inapplicable.", "63. According to the principles in the Court’s case-law (see, for instance, the Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 12, para. 32), the Court has first to ascertain whether there was a dispute (contestation) over a \"right\" which could be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious: it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Finally, the result of the proceedings must be directly decisive for the right in question. If the Court finds that there is a dispute over a right, it must examine whether the right in question was of a \"civil\" character.", "64. The Government and the Commission observed that, although there were various possibilities for the applicant to have the merits of his case examined by a Swedish court (see paragraphs 33 and 34 above), it was clear that the union action against him was lawful and that Swedish law provided no basis for the national court to grant an order remedying the situation complained of by the applicant. In these circumstances, there was no dispute (contestation) over a right which could be said on arguable grounds to be recognised under Swedish law. Accordingly, Article 6 para. 1 (art. 6-1) was inapplicable.", "65. The applicant, citing Swedish case-law, argued that the negative right to freedom of association was recognised under Swedish law. However, in his submission, by virtue of Article 17 of the Instrument of Government which leaves it to the parties in the labour-market to solve industrial disputes (see paragraph 29 above), Sweden had abdicated its responsibilities as a Contracting Party to the Convention. The notion of an \"arguable claim\" in the Court’s case-law under Article 6 (art. 6) of the Convention was not confined to the position under national law but referred also to the law of the Convention.", "66. The Court observes that applicability of Article 6 (art. 6) of the Convention depends on whether there is a dispute over a right recognised by national law. The applicant’s complaint under Article 6 para. 1 (art. 6-1) is not that he was denied an effective remedy enabling him to submit to a court a claim alleging a failure to comply with domestic law (as, for instance, in the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 29-30, paras. 80-82). Rather his complaint is essentially directed against the fact that the union action was lawful under Swedish law. However, that provision (art. 6-1) does not in itself guarantee any particular content for (civil) \"rights and obligations\" in the Contracting States (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, pp. 16-17, para. 36). In the instant case there was no right recognised under Swedish law to attract the application of Article 6 para. 1 (art. 6-1) of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION", "67. The applicant in addition submitted that the same facts as amounted to the alleged violation of Article 6 para. 1 (art. 6-1) (see paragraphs 62 and 66 above) also constituted a breach of Article 13 (art. 13), which provides:", "\"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy beforea national authority not withstanding that the violation hasbeen committed by persons acting in an official capacity.\"", "68. The Government disputed this allegation.", "69. The Commission, having regard to its considerations with respect to the applicant’s complaint under Article 11 (art. 11) (see paragraphs 43 and 46 above), was of the opinion that the applicant’s claim under this provision (art. 11) was arguable on its merits. Furthermore, it was undisputed that no effective court or other remedy was available to the applicant, given that the industrial action did not contravene Swedish law. For these reasons the Commission shared the applicant’s view that there had been a breach of Article 13 (art. 13).", "70. According to the Court’s case-law, Article 13 (art. 13) requires that, where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he or she should have a remedy before a national authority in order both to have his or her claim decided and, if appropriate, to obtain redress. However, Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority (see, for instance, the above-mentioned James and Others judgment, p. 47, para. 84; and the above-mentioned Powell and Rayner judgment, p. 16, para. 36). The applicant’s complaint under the Convention being essentially directed against the fact that the union action was lawful under Swedish law, Article 13 (art. 13) is not applicable." ]

[ "2. The applicant was born in 1959 and lives in Šibenik.", "3. The applicant was granted leave for self-representation. The Government were represented by their Agent, Ms Š. Stažnik.", "4. The facts of the case may be summarised as follows.", "Background to the case", "5. At the beginning of 2007 the applicant held the position of representative ( povjerenik ) of the Šibenik branch of the Croatian Customs Officers’ Trade Union ( Carinski sindikat Hrvatske, hereinafter: “the CSH”).", "6. The CSH is an independent and autonomous trade union designed to protect the employment rights and interests of customs officers employed in the Customs Administration of the Ministry of Finance ( Ministarstvo financija, Carinska uprava ). It has no public powers and membership of the union is on a purely voluntary basis. The CSH’s major source of income is membership fees. It receives no direct financial support from the State or other public funds (see paragraph 32 below). At the relevant time, the CSH was not the only trade union representing customs officers; another trade union operated within the Šibenik Customs Office.", "7. Between 3 January and 16 February 2007, acting in his capacity as the trade union representative, the applicant refused the applications of fifteen employees of the Šibenik Customs Office, including P.N., P.M., G.Š. and I.Z., for membership of the Šibenik branch of the CSH.", "8. According to the applicant, in so doing he acted in accordance with an agreement with other members of the trade union not to extend the membership of the CSH at the relevant time. He also wanted to prevent a manoeuvre by their employer to get a number of “its people” into the trade union, thereby changing the governing structures within the union. On 25 January 2007, acting as the trade union representative, he sent a letter to all those concerned within the Šibenik Customs Office, explaining that decision.", "9. At the same time, there were various disagreements between the applicant and the president of the CSH, D.C., concerning the manner in which the trade union should be governed. Despite the applicant’s refusal to extend the membership of the Šibenik branch of the CSH, in the period between 3 January and 16 February 2007, D.C., acting as the president of the CSH, enrolled the fifteen would-be members, including P.N., P.M., G.Š. and I.Z, in the Šibenik branch of the union (see paragraph 7 above).", "10. On 1 March 2007 twenty-one members of the Šibenik branch of the CSH, including the fifteen new members, called for an extraordinary session of the union’s assembly. The extraordinary session was held on 9 March 2007. The applicant’s refusal to accept the fifteen new members was discussed and a decision was adopted (by 25 votes of those present, two abstentions and no votes against) to remove him from his position as the trade union representative. I.Z. was appointed as the new representative, and P.N. as his deputy.", "11. On 10 May 2007 the Šibenik branch of the CSH lodged a criminal complaint against the applicant with the Šibenik Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Šibeniku, hereinafter: “the State Attorney’s Office”) in relation to charges of preventing citizens from joining trade unions under Article 109 of the Criminal Code (see paragraph 30 below), in connection with his refusal to accept the applications of the fifteen would-be members of the CSH in the period between 3 January and 16 February 2007 (see paragraph 7 above). The criminal complaint was signed by the representative I.Z. and co-signed by other members of the governing structures of the union, including P.N., P.M. and G.Š.", "Criminal proceedings against the applicant", "12. In connection with the CSH’s criminal complaint, the State Attorney’s Office instructed the police to conduct a further inquiry into the matter.", "13. On 7 May 2008 the police reported that on the basis of available documents concerning the admission of the fifteen would-be members to the union and interviews with all those concerned, they had established that there was a reasonable suspicion that the applicant had committed the offence of preventing citizens from joining trade unions under Article 109 of the Criminal Code.", "14. On 16 May 2008, relying on the police report, the State Attorney’s Office asked an investigating judge of the Šibenik County Court ( Županijski sud u Šibeniku, hereinafter: “the County Court”) to conduct an investigation into the case.", "15. In the course of the investigation, the applicant and a number of witnesses were heard. The applicant stated that he had not prevented anyone from joining trade unions. He stressed that there were two trade unions operating within the Šibenik Customs Office, and that the would-be members had previously been members of the CSH but had voluntarily terminated their membership. He argued that when refusing to accept their applications, he had acted on the basis of a decision adopted by the Šibenik branch of the CSH not to extend its membership before an upcoming ordinary annual assembly was held.", "16. In their statements to the investigating judge, the would-be members explained how they had wanted to join the CSH but the applicant had refused their applications, so they had needed to apply through the central office of the CSH. They further explained that the relations within the Šibenik branch of the CSH had been disturbed during the applicant’s term in office. The new representative of the union, I.Z., also explained how the new members had managed to organise an extraordinary assembly and remove the applicant from his post as trade union representative.", "17. For his part, D.C. explained that at the relevant time he had been president of the CSH. This meant that he had coordinated the work of representatives of the local branches of the CSH, but had not been superior to them. He also stated that the Statute of the CSH had not provided for any special conditions for becoming a member of the CSH, and that he had advised the applicant that a decision of the Šibenik branch of the CSH not to extend its membership did not have a basis in the Statute. Acting as the president of the CSH, D.C. had therefore enrolled the would-be members in the Šibenik branch of the CSH. In D.C.’s view, the applicant had refused to accept new members because the Šibenik branch of the CSH had had some thirty members, so he had been afraid that the fifteen new members could remove him from his position as trade union representative.", "18. On the basis of the results of the investigation conducted by the investigating judge, on 17 October 2008 the State Attorney’s Office indicted the applicant in the Šibenik Municipal Court ( Općinski sud u Šibeniku; hereinafter: “the Municipal Court”). It argued that the applicant, acting as the trade union representative, had prevented fifteen would-be members from joining the Šibenik branch of the CSH, and had thus committed the offence of preventing citizens from joining trade unions under Article 109 of the Criminal Code (see paragraphs 7 above and 30 below).", "19. On 28 October 2008 the Municipal Court accepted the indictment and issued a penal order ( kazneni nalog ), finding the applicant guilty as charged and sentencing him to three months’ imprisonment, suspended for a year.", "20. On 12 November 2008 the applicant objected to the penal order, and the case was sent for trial before the Municipal Court.", "21. At a hearing on 23 September 2010 the applicant accepted that all evidence obtained by the investigating judge, including witness statements, would be read out at the trial without there being further examination. He also asked the Municipal Court to question three further witnesses who could give evidence on the reasons why the fifteen would-be members had wanted to join the CSH.", "22. On the same day the Municipal Court dismissed the request for the witnesses to be questioned on the grounds that the reasons why the applicant wanted to hear them were irrelevant. It also found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for a year. The applicant was ordered to pay the costs of the proceedings, 400 Croatian kunas (HRK; approximately 53 euros (EUR)).", "23. In a short statement of reasons, the Municipal Court found that there was no dispute between the parties that the applicant had prevented the fifteen would-be members from joining the Šibenik branch of the CSH. In the Municipal Court’s view, that had clearly been contrary to the Constitution and relevant domestic law, as well as the Statute of the CSH. The Municipal Court thus found that the applicant had committed the offence of preventing citizens from joining trade unions under Article 109 of the Criminal Code.", "24. The applicant challenged that judgment before the County Court. He argued that the fifteen would-be members had been free to form and join other trade unions, and he had in no way prevented them from doing that. In his view, their right to form and join trade unions could not be interpreted in a manner allowing them to join the Šibenik branch of the CSH irrespective of whether they had views and interests which were possibly divergent from those of the trade union. He pointed out that pluralism in trade union activity meant that employees were free to form and join trade unions that represented their values and ideas. The applicant also argued that the Municipal Court’s decision to dismiss his proposal to hear further witnesses had prevented it from establishing all the relevant facts of the case.", "25. On 16 December 2010 the County Court dismissed his appeal and upheld the first-instance judgment, endorsing the reasoning of the Municipal Court. In the County Court’s view, there was no doubt that the applicant had acted contrary to the Constitution, the relevant law and the Statute of the CSH, and this was sufficient to find him guilty as charged. The County Court also considered that the Municipal Court’s decision not to hear further witnesses had been justified.", "26. On 18 April 2011 the applicant lodged a constitutional complaint before the Constitutional Court ( Ustavni sud Republike Hrvatske ), arguing in particular that he had acted as the trade union representative, who, under the Statute of the CSH, had a duty to protect the interests of the trade union and its members. He pointed out that the lower courts had provided no reasoning as to the restriction on his right and the right of other members of the Šibenik branch of the CSH not to be in the same trade union as the fifteen persons who had wanted to join their union and who had not shared their interests. He also stressed that he had in no way limited the right of the would-be members to form or join other trade unions, but had simply sought to protect the interests of the existing membership of the union. In his view, the lower courts’ decisions had set a dangerous precedent whereby any person would have a right to join any trade union or other association, irrespective of the wishes or interests of the existing members of the union or association.", "27. On 17 October 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, endorsing the reasons for his conviction.", "28. The decision of the Constitutional Court was served on the applicant’s representative on 30 October 2012." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "RELEVANT DOMESTIC LAW", "29. The relevant parts of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) provide as follows:", "Article 29", "“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”", "Article 43", "“Everyone shall be guaranteed the right to associate freely for the protection of their interests or promotion of social, economic, political, national, cultural and other convictions or goals. For this purpose, anyone may freely form trade unions and other associations, join them or leave them, in accordance with the law.", "The right to associate freely is limited by the prohibition of any violent threat to the democratic constitutional order and the independence, unity, and territorial integrity of the Republic of Croatia.”", "30. The relevant provision of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as in force at the relevant time, read as follows:", "Violation of the Freedom of Association", "Article 109", "“Whoever denies or limits citizens’ freedom of association in ... trade unions ... shall be punished by a fine or imprisonment for [a period of] not more than one year.”", "31. At the material time, the Labour Act ( Zakon о radu, Official Gazette no. 137/2004 – consolidated text, with further amendment) provided the following:", "Judicial protection of employment rights", "Section 133", "“(1) Worker who considers that the employer has breached some of his or her employment rights can ... request from the employer to fulfil that right.", "(2) If the employer ... fails to comply with that request, the worker can, within a period of fifteen days, seek a judicial protection of the breached right before the competent court. ...”", "XIX TRADE UNIONS AND EMPLOYERS’ ASSOCIATIONS", "GENERAL PROVISIONS ON ASSOCIATIONS", "Right to associate", "Section 167", "“(1) Workers have the right, without [there being] any distinction whatsoever, and according to their own free choice, to form and join a trade union, subject to only such requirements which may be prescribed by the statute or internal rules of the trade union.", "...", "(3) The associations referred to in subsection 1 ... of this section (hereinafter, ‘the", "Associations’) may be formed without any prior approval.”", "Free membership in the association", "Section 168", "“(1) Workers and employers respectively may freely decide on joining or leaving an association.", "(2) No one shall be discriminated against on the grounds of his or her membership or non-membership of an association, or participation or non-participation in its activities.”", "Statute of the association", "Section 174", "“(1) An association or a higher-level association must have a statute of the association based on and adopted in accordance with the principles of democratic representation and the democratic exercise of will of its members.", "(2) The statute of the association regulates its: purpose; name; seal; scope of activity; logo; bodies; method by which members of these bodies are elected and recalled; powers given to the bodies; procedure for accepting and terminating membership; methods for adopting and amending the statute, internal rules and other regulations; [and] termination of operations.", "...”", "Judicial protection of membership rights", "Section 186", "“Any member of the association may seek judicial protection in the event of a breach of his or her rights guaranteed by the statute of the association or other internal rules.”", "Judicial protection of the right to associate", "Section 187", "“(1) An association or a higher-level association may ask a court to prohibit actions breaching the right of workers and employers to associate.", "(2) An association or a higher-level association may claim compensation for damage suffered as a result of the activities referred to in subsection 1 of this section.”", "32. The relevant provisions of the Statute of the Croatian Customs Officers’ Trade Union ( Statut Carinskog sindikata Hrvatske, 18 February 2006, hereinafter, “the Statute”) read as follows:", "Section 1", "“The Croatian Customs Officers’ Trade Union (hereinafter, ‘the trade union’) is a voluntary and independent association of customs officers and clerks employed by the Customs Administration of the Ministry of Finance.", "The trade union is an independent, autonomous, voluntary and non-partisan association interested [in the protection of the interests of its members]. The trade union operates on the principles of democratic representation and the presentation of the will of its members, [and is] organised into branches and commissions.”", "Section 3", "“The trade union is a legal entity [which is] independent of an employer and its associations in the promotion of the rights and interests of its members ...”", "Section 10", "“Persons employed by the Customs Administration of the Ministry of Finance may become members of the trade union, and they [must] seek membership on a voluntary basis ... One becomes a member of the trade union upon accepting the Statute and signing the membership application form, and [upon] paying the prescribed membership fee for the month when [he or she] joins the trade union.", "Two copies of the application form shall be filled in and signed and personally submitted to the representative or deputy representative of the trade union ... The representative and deputy representative are responsible for how the admission procedure is conducted.", "...”", "Section 15", "“The key entity within the trade union’s structure is the local branch of the trade union. ...", "In their operation, the local branches of the union are independent; they have their own bank accounts and operate in accordance with the Statute and their internal regulations.", "...”", "Section 16", "“Bodies of the trade union, within its branches, are: the Assembly, [the executive] Commission, Representative Board and the Supervisory Board.", "The Assembly is the highest body of a branch and consists of all members of the branch or their chosen representatives.", "The Assembly elects the Commission, the Representative, the Supervisory Board and the treasurer.", "...", "The trade union representative is the person who represents the Commission and the branch of the trade union. He or she is also member of the Presidency of the trade union. ...”", "Section 36", "“The main source of income of the trade union, for financing its activities, is membership fees.", "...", "The trade union is a legal entity which has its own bank account.", "The trade union may have other lawful sources of income.”", "33. The relevant parts of the Regulations of the Šibenik branch of the Croatian Customs Officers’ Trade Union (adopted on 14 October 2000, hereinafter “the Regulations”) provide:", "Section 1", "“The [Šibenik] branch [of the CSH] is a legal entity which operates within the structure of the trade union (CSH) ...”", "Section 2", "“The central form of trade union activity within the Customs Administration of the Ministry of Finance is the local branch, whose members act [collectively] in the protection of their interests. The creation of [a local branch] is based on a voluntary expression of will by the employees, who become members by signing the membership application form. ...”", "Section 10", "“The [trade union] branch representative has the following rights and obligations:", "- representing the branch", "- organising and coordinating the work of the branch commission", "- preparing, convoking and presiding over meetings of the branch and the Commission", "- representing the branch and participating in the trade union Presidency ...", "...", "- representing each branch member whose rights are violated", "- supporting the dignity and interests of the profession", "- providing assistance by providing legal aid and protecting members", "...", "- proposing and forming committees, panels and workgroups for individual issues", "- informing members on the proposals, conclusions and decisions of the Commission of the branch, and implementing the conclusions and decisions of the Presidency of the trade union", "...", "- performing all other tasks and implementing decisions of the branch commission", "...”", "Section 17", "“Membership fees are the main source of income for financing the branch’s activities, but income may be procured from other sources. A decision to receive funds from other sources must be adopted by the Presidency of the trade union. ...”", "Section 22", "“The interpretation of these Regulations is within the powers of the Presidency of the trade union.”", "RELEVANT INTERNATIONAL MATERIALSInternational Labour Organization (ILO)", "International Labour Organization (ILO)", "International Labour Organization (ILO)", "34. The relevant provisions of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948), ratified by Croatia, read as follows:", "Article 2", "“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”", "Article 3", "“1. ... [E]mployers’ organisations shall have the right ... to organise their administration and activities and to formulate their programmes.", "2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”", "35. The relevant parts of ILO Convention No. 135 on Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking (1971), ratified by Croatia, provide as follows:", "Article 1", "“Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.”", "Article 3", "“For the purpose of this Convention the term workers’ representatives means persons who are recognised as such under national law or practice, whether they are--", "(a) trade union representatives, namely, representatives designated or elected by trade unions or by members of such unions; ...”", "36. The relevant parts of ILO Convention No. 151 on Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service (1978), not ratified by Croatia, provide:", "Article 1", "“1. This Convention applies to all persons employed by public authorities, to the extent that more favourable provisions in other international labour Conventions are not applicable to them.", "...”", "Article 5", "“1. Public employees’ organisations shall enjoy complete independence from public authorities.", "2. Public employees’ organisations shall enjoy adequate protection against any acts of interference by a public authority in their establishment, functioning or administration.”", "Article 9", "“Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions.”", "37. The ILO Committee on Freedom of Association, set up to examine complaints of violations of freedom of association, has held that the determination of conditions of eligibility for membership in a union is a matter that should be left to the discretion of the union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right. Moreover, workers and their organisations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf. The Committee has also held that the right of workers’ organisations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. The public authorities refrain from any intervention which might impair the exercise of this right (Compilation of decisions of the Committee on Freedom of Association, 2018, paragraphs 586, 589 and 606, available at www.ilo.org ).", "38. Furthermore, the Committee has held that although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered legitimate trade union activities. Moreover, the Committee has stressed that the criminal prosecution and conviction to imprisonment of trade union leaders by reason of their trade union activities are not conducive to a harmonious and stable industrial relations climate. In addition, allegations of criminal conduct should not be used to harass trade unionists by reason of their union activities (Ibid., paragraphs 79-80 and 155).", "The Council of Europe", "39. Article 5 of the European Social Charter 1961 (ETS No.035) provides for the following “right to organise”:", "“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. ...”", "40. For a summary of the European Committee of Social Rights’ conclusions on the United Kingdom legal system in relation to the right of a trade union to determine its conditions for membership, see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, §§ 23-24, 27 February 2007.", "Other relevant materials", "41. Other relevant instruments on the rights of trade unions are set out in Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 40-41, ECHR 2008.", "EUROPEAN UNION LAW", "42. The relevant part of Article 12(1) of the Charter of Fundamental Rights of the European Union provides as follows:", "“Everyone has the right ... to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "43. The applicant complained about his criminal conviction for refusing to admit new members to the Šibenik branch of the CSH whilst acting in his capacity as a trade union representative. He relied on Article 11 of the Convention, which reads as follows:", "“1. Everyone has the right ... to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "Admissibility", "44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "MeritsThe parties’ arguments", "The parties’ arguments", "The parties’ arguments", "(a) The applicant", "45. The applicant submitted that he had refused the membership applications of the fifteen would-be members only because he had wanted to protect the interests of the existing members of the Šibenik branch of the CSH. He had considered that the interests of the would-be members conflicted with the interests of the existing members. Thus, in his view, D.C. had acted in breach of the relevant regulations and interests of the Šibenik branch of the CSH in accepting the fifteen membership applications. According to the applicant, as the trade union representative, processing the applications of new members had been solely within his authority. Moreover, the applicant contended that there had been a conflict of interest as regards D.C., as he (the applicant) had been his opponent in the elections for the CSH president.", "46. The applicant further pointed out that two principles formed the pillars of the CSH’s functioning: independence from the employer and the protection of members’ interests. Pursuant to section 10 of the Regulations, it had been his duty to represent the trade union and protect the interests of its members. This had also been the case in relation to the extension of its membership, something which could not be based solely on objective grounds, such as the signing of an application form, but had depended on an assessment of whether the extension of the membership was in accordance with the interests of the existing members. At the relevant time, his opinion and that of the existing members of the union had been that membership should not be extended until an upcoming Assembly was held. By that decision, they had wanted to prevent changes to the governing structures of the union before the Assembly was held.", "47. The applicant contended that his conviction and sentence for refusing the admission of the fifteen would-be members had been arbitrary and excessive. In his view, the domestic authorities had arbitrarily accepted that the would-be members’ interests trumped his interests and those of the existing members of the union in governing the union activities as they saw fit. He argued that if somebody had been dissatisfied with his work and decisions, he or she could have sought protection before the civil courts under the Labour Act, without resorting to repression by means of criminal law.", "48. In this connection, the applicant also argued that Article 109 of the Criminal Code had been inapplicable in his case, as it concerned only those who had the power to deny or limit citizens’ freedom of association. He had had no such powers, as there had been another trade union operating within the Šibenik Customs Office which the employees could have joined. Lastly, the applicant argued that the domestic courts had failed to establish all the circumstances of the case, as they had failed to hear the witnesses he had proposed during the proceedings.", "(b) The Government", "49. The Government argued that while they fully accepted the right of trade unions to manage their own affairs, including their membership, the applicant in this case, as a trade union representative, had refused to admit fifteen persons to the trade union, acting contrary to the relevant law. In the Government’s view, no provision of the Statute had allowed the applicant not to accept new members to the union who fulfilled the objective criteria under section 10 of the Statute, namely they were employed in the Customs Administration and had accepted the Statute, signed the membership application form and paid the membership fee. They pointed out that this interpretation of the Statute had also been confirmed by D.C. when he had been heard as a witness during the criminal investigation against the applicant.", "50. The Government further stressed that it was the applicant’s arbitrary conduct in refusing to admit new members to the trade union that had led to the lodging of a criminal complaint against him and his conviction in the criminal proceedings. They pointed out that the relevant domestic courts had also found that the applicant had acted contrary to the Constitution, the relevant law and the Statute. Thus, by convicting the applicant for acting contrary to the relevant law, the domestic courts had not interfered with the functioning of the trade union or with the applicant’s lawful activities as the union’s representative. On the contrary, the domestic courts had protected the interests of the would-be members from the applicant’s unlawful conduct.", "51. Lastly, the Government submitted that all the relevant facts in the proceedings had been properly established and that the decisions of the domestic courts refusing to hear further witnesses proposed by the applicant had not been arbitrary or unreasonable.", "The Court’s assessment", "(a) General principles", "52. The Court refers to the general principles on trade union freedom set out in Demir and Baykara, cited above, §§ 109-11 and 119, and Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, §§ 130-135, ECHR 2013 (extracts).", "53. Through its case-law, the Court has built up a non-exhaustive list of the constituent elements of trade union freedom, including the right of trade unions to draw up their own rules and administer their own affairs, including membership. The relevant principles in this context are set out in Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, §§ 37-46.", "(b) Application of these principles to the present case", "(i) Existence of an interference", "54. The applicant was convicted, in his capacity as trade union representative, of refusing to admit fifteen would-be members to the Šibenik branch of the CSH. While the question of whether the applicant acted in accordance with the relevant union rules and the Statute are at the centre of the dispute in the present case (see paragraph 66 below), the Court notes that, at the relevant time, the applicant was the lawfully appointed trade union representative whose tasks included taking actions to represent the union and protect the interests of its members (see paragraphs 5, 32 and 33 above, section 10 of the Statute and section 10 of the Regulations; see also paragraph 40 above). In this connection, it is noted that the domestic law – in particular sections 186 and 187 of the Labour Act (see paragraph 31 above) – provided for the possibility that other members of the union and/or the central office of the CSH could seek judicial protection of their membership rights and right to associate in general. However, no such proceedings were instituted against the applicant within the existing structures of the union following his notifying all those concerned of the decision not to enlarge the membership of the Šibenik branch at the relevant time (see paragraph 8 above).", "55. In these circumstances, having regard to the fact that Article 11 protects the right of trade unions – as associations formed by people – to control their membership (see Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 39), the Court considers that the applicant’s criminal conviction for not admitting new members to the union at the relevant time whilst acting as the trade union representative amounted to an interference with Article 11 of the Convention.", "(ii) Whether the interference was prescribed by law", "56. Although the applicant challenged the applicability of Article 109 of the Criminal Code in his particular case (see paragraph 48 above), regard being had to the fact that it is primarily for the national courts to interpret and apply domestic law (see, for instance, Tsonev v. Bulgaria, no. 45963/99, § 45, 13 April 2006), the Court is prepared to accept that the interference in question was prescribed by law. In so far as the applicant challenges the domestic courts’ assessment of the relevant facts and the quality of their reasoning, these issues fall to be examined in the context of the question of whether or not the impugned interference was necessary in a democratic society.", "(iii) Whether the interference pursued a legitimate aim", "57. The Court notes that the applicant was convicted for violating the freedom of association, which is a value protected by the Criminal Code (see paragraph 30 above). His conviction could therefore be seen as aimed at the prevention of crime. However, having regard to the Government’s arguments (see paragraph 50 above), the Court will proceed under the assumption that the impugned interference had the aim of protecting the rights and freedoms of others, namely the fifteen would-be members, to exercise their right of association without undue hindrance. The crucial question is, as noted above, whether this interference was necessary in a democratic society.", "(iv) Whether the interference was “necessary in a democratic society”", "(α) General principles", "58. The question that arises in the present case concerns the extent to which the State could intervene to protect the would-be trade union members from the hindrance of their right to associate, taking into account the applicant’s rights and those of the trade union which he at the relevant time represented to control their membership by deciding with whom they wanted to associate.", "59. The Court reiterates that the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law (see Demir and Baykara, cited above, § 144).", "60. In this connection, the Court notes that whereas in some instances various Article 11 rights may deserve equal protection (see, for instance, Sindicatul “Păstorul cel Bun”, cited above, § 160), the right to join a union “for the protection of [one’s] interests” cannot be interpreted as conferring a general right to join the union of one’s choice, irrespective of the right of the union in question to decide on its membership in accordance with the union rules (see Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 39). Indeed, Article 11 cannot be construed as permitting every kind of compulsion in the field of trade union membership, as that would strike at the very substance of the freedom it is designed to guarantee (see Young, James and Webster v. the United Kingdom, 13 August 1981, § 52, Series A no. 44). Moreover, it would strike at the very essence of Article 11 to exert pressure on a person in order to compel him or her to join, or be in an association with, those who do not share his or her views (ibid, § 57, mutatis mutandis ). All this, of course, holds true where the association or trade union is a private body independent of the State and is not, for example, operating a closed shop agreement, in which case other considerations may apply (see Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 40).", "61. In any event, as explained in Associated Society of Locomotive Engineers and Firemen (ASLEF) (§ 43), a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Thus, the State must protect the individual against any abuse of a dominant position by trade unions. In the cited case, with reference to the Commission’s earlier case-law (see Cheall v. the United Kingdom, no. 10550/83, Comm. Dec. 13.5.85, D.R. 42, and Johanssen v. Norway, no. 13537/88, Comm. Dec. 7.5.90), the Court has identified that such abuse might occur, for example, where exclusion or expulsion from a trade union is not in accordance with union rules, or where the rules are wholly unreasonable or arbitrary, or where the consequences of exclusion or expulsion result in exceptional hardship. It would add to this that a form of abuse might also occur in the event of discriminatory treatment, against which the State is required to take the real and effective measures of protection (see, mutatis mutandis, Danilenkov and Others v. Russia, no. 67336/01, § 124, ECHR 2009 (extracts)).", "62. Lastly, the Court reiterates that when it carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, for instance, Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, § 141, 16 July 2019, with further references).", "(β) Application of those principles", "63. At the outset, the Court notes that the trade union in question in the present case, within which the applicant held the position of trade union representative at the relevant time, operates as an independent and autonomous trade union designed to protect the employment rights and interests of customs officers. It has no public powers and its membership is purely on a voluntary basis. Its major source of income is membership fees, and it receives no direct financial support from the State or other public funds. Moreover, it is not the only trade union representing customs officers, and there is no closed shop agreement in this area (see paragraphs 6, 16-17 and 32-33 above). The particular branch of the union in Šibenik which the applicant represented was a relatively small organisation apparently comprising some thirty members at the relevant time (see paragraph 17 above).", "64. As there was no closed shop agreement, it is not apparent that the fifteen would-be members suffered, or were liable to suffer, any particular detriment or hardship in terms of their livelihood or their conditions of employment owing to their inability to join the applicant’s trade union at the relevant time. Given that that they were free to join the other existing trade union and/or establish their own or to protect their rights through legal proceedings concerning the conditions of their employment, there is nothing to suggest that they were at any individual risk of, or unprotected from, possible adverse actions by the employer (compare Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 50; and see paragraphs 31 and 61 above).", "65. Moreover, there is no indication that the fifteen would-be members were subject to discriminatory treatment by the applicant acting as the trade union representative. The Court also notes that in the present case no issue arises as regards the rules and Statute of the union itself. It has not been alleged that those rules or the Statute are wholly unreasonable or arbitrary (see paragraph 61 above).", "66. Rather, a dispute arises over the question whether the applicant acted in an abusive and unreasonable manner in breach of the union rules when refusing to admit the fifteen would-be members (see paragraphs 61 above; and Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 52). In particular, the central tenet of the Government’s argument is that the applicant acted contrary to the Statute of the CSH in refusing to admit the fifteen would-be members to the union (see paragraphs 49-50 above).", "67. In this connection, the Court reiterates, as it has stated on many occasions, that it is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, for instance, Barseghyan v. Armenia, no. 17804/09, § 39, 21 September 2021, with further references). For its part, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see paragraph 62 above).", "68. In the present case, it would appear that there was no authoritative guidance on how to interpret the trade union internal rules on the admission of new members as provided for in its internal regulations (see paragraph 33 above; section 22 of the Regulations). At the same time, the domestic courts’ reasoning was very succinct and did not elaborate on the considerations related to the applicant’s compliance with the relevant rules and the Statute, seeing in light of the relevant domestic law and the requirements of Article 11 of the Convention (see paragraphs 59-61 above).", "69. In particular, on the one hand, it is true that the Statute provided no specific requirements for the admission of new members to the union, and that the applicant was eventually, albeit after the change in the membership of the union, removed from his position of trade union representative by a great majority of vote of the members (see paragraph 10 above). However, on the other hand, it is also true that that there was nothing to suggest that at the relevant time the applicant did not represent the interests of the union or other members of the Šibenik branch of the union, who did not institute any action against the applicant under the domestic law (see paragraph 31 above) after he had informed them of the refusal to admit the would-be members (see paragraph 8 above). Indeed, according to the internal union regulations and the Statute, the applicant’s position of trade union representative included taking actions to represent the union and to protect the interests of its members (see paragraph 54 above).", "70. Moreover, it is noted that there were established procedures allowing the would-be members eventually to join the CSH as well, and the applicant’s actions, according to him, were intended not to deny their admission as such but to delay the decision on the extension of the membership until an upcoming ordinary annual assembly of the union (see paragraph 46 above). In this connection, it has not been suggested that the applicant had institutional or other power to decide for the assembly whether the membership would be extended or not or to prevent the admission of new members contrary to the decision of the assembly, which is the highest body of the union (see paragraph 32 above, Section 16 of the Statute).", "71. However, the domestic courts did not explain, in the light of the relevant principles under Article 11 (see paragraphs 59-61 above), how these considerations relate to the applicant’s conduct when refusing the admission of the would-be members to the union. They did not elaborate on the fact that the applicant’s position of trade union representative at the material time conferred on him the right to take actions to represent the union and to protect the interests of its members (see paragraph 69 above). They also failed to elaborate on the internal relations in the CSH and their effects on the fifteen would-be members’ wish to become members of that union and the applicant’s decision not to accept their membership.", "72. In this connection, the Court notes that the domestic courts refused the applicant’s proposal to take further evidence, something which arguably could have shed light on the circumstances in which the fifteen would-be members had wanted to join the trade union (see paragraphs 21-22 and 25 above). In so doing, the courts merely noted that his request was irrelevant, which, given the circumstances, cannot be considered a properly reasoned decision (see, for instance, Kuveydar v. Turkey, no. 12047/05, § 44, 19 December 2017).", "73. In these circumstances, in view of the lack of reasoning in the domestic courts’ decisions, including their procedural failure to examine all the relevant circumstances of the case in the light of the principles set out in the Court’s case-law (see paragraphs 59-61 above), and in the absence of any identifiable hardship suffered by the would-be members or any discriminatory motive in the applicant’s actions, it cannot be established convincingly and in conformity with the principles embodied in Article 11 that the interference complained of was necessary in a democratic society.", "74. There has accordingly been a violation of Article 11 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION", "75. The applicant complained that the criminal proceedings against him had been unfair, particularly as regards his right to obtain the attendance and examination of witnesses for the defence, as provided for under Article 6 §§ 1 and 3 (d) of the Convention.", "76. The Government contested that argument.", "77. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.", "78. Having regard to the findings relating to Article 11 of the Convention (see paragraphs 72-74 above), the Court considers that it is not necessary to examine whether there has been a violation of Article 6 of the Convention in this case (see, among other authorities, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 94, ECHR 2009, with further references).", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "79. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "80. The applicant claimed EUR 30,000 in respect of non ‑ pecuniary damage.", "81. The Government considered this claim to be excessive, unfounded and unsubstantiated.", "82. The Court considers that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.", "Costs and expenses", "83. The applicant also claimed HRK 400 (EUR 5 3) for the costs and expenses incurred before the domestic courts.", "84. The Government considered this claim unsubstantiated.", "85. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum claimed covering costs and expenses in the domestic proceedings, plus any tax that may be chargeable.", "Default interest", "86. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. Mr Roland Ezelin is a French national who lives at Basse-Terre ( Guadeloupe ). He practises as a lawyer (avocat).", "A. Background to the case", "10. On 12 February 1983 a number of Guadeloupe independence movements and trade unions held a public demonstration at Basse-Terre to protest against two court decisions whereby prison sentences and fines were imposed on three militants for criminal damage to public buildings. The applicant, who was Vice-Chairman of the Trade Union of the Guadeloupe Bar at the time, took part and carried a placard.", "11. The Chief Superintendent of the Basse-Terre police drew up a report on the very same day and sent it to the local public prosecutor. The report, which had eleven appendices, gave the following account:", "\"While at the station,", "I was informed in a radio message that the demonstration being held today by various independence movements in the Champ d ’ Arbaud, Basse-Terre, from 9 a.m. onwards, whose progress we were monitoring, had taken the form of a procession in town. Demonstrators had set off at 10.30 a.m. and were marching through the streets of the town chanting slogans hostile to the police and the judiciary. During the procession graffiti were daubed in paint on various buildings, in particular the Institut d ’ émission d ’ Outre-mer, known as the ‘ Central Treasury ’.", "The group of 450-500 people which had left the Champ d ’ Arbaud had joined another group of 500 people, at the rue Schoelcher, forming a compact group of about a thousand people headed by the leaders, who announced over loudspeakers the slogans to be chanted. The following were recognised among these leaders:", "Roland Thesauros (University of West Indies-Guiana); Luc Reinette, leader of the MPGI (Popular Movement for an Independent Guadeloupe), a former member of the GLA, who came out of prison after 10 May 1981; Max Safrano, presumed head of the ALN (National Liberation Army), against whom criminal charges had been brought and who had been released from Basse-Terre Prison the previous day; Fernand Curier of the UTS/UGTG Trade Union, recently (1 February 1983) sentenced by the Basse-Terre Court of Appeal to 15 days ’ imprisonment and a fine of 10,000 francs; the sister of Joseph Samson, another person given the same sentence on 7 February 1983 by the Basse-Terre Criminal Court; Rosan Mounien, another member of the UTA/UGTG Trade Union;Marc -Antoine, convicted by the Basse-Terre Court of Appealon 7 September 1983 along with Alexander, ... and others,known to be particularly fanatical and determinedextremists, including one Rupaire, etc ... This processionwas now in the Cours Nolivos and was entering the rue de laRépublique and would soon be arriving in front of the policestation.", "At this point I reported what was happening to the Chief Constable (call-sign ‘ Polaire ’ ), who was at the Law Courts with two squads of riot police which we had agreed to deploy at the bottom of the boulevard Félix-Eboué in order to bar access to the Law Courts and prevent any damage to the building and to the département council building.", "At ten past eleven the demonstrators reached the police station and assembled in front of it.", "While I made the necessary arrangements for countering any attack on the building, the demonstrators took up their position in front of the police station and were addressed by two leaders from outside the district who were unknown to the police officers present. The speakers, who spoke in Creole, urged the police officers to move up and join them. There followed a violent tirade against Police Officer Beaugendre, who was accused of betrayal, after which the crowd of demonstrators rhythmically chanted ‘ BEAUGENDRE-MAKO! UN JOU OU KE PAYE ’ (One day you will pay).", "The following were identified among the demonstrators: Roland Thesauros, Luc Reinette, Max Safrano, Fernand Curier, Rosan Mounien, Rupaire, Marc-Antoine, Samson ’ s family (see report no. 1) and Dr Corentin (see report no. 7) and Mr Ezelin, a barrister; the two last-mentioned displayed a banner with the words ‘ LAWYERS - DOCTORS ’ (see report no. 7). The majority of demonstrators, however, including the most worked up and the most aggressive ones, were people from outside Basse-Terre, most of them from Grande-Terre island, it seemed, and consequently unknown to the police.", "The demonstrators left the police station at about 11.30 a.m. and headed in the direction of the Law Courts and the council building. My Chief Constable, who was continuously kept informed of events, then told me that he had abandoned the idea of blocking the lower end of the boulevard Eboué with a police line - as we had agreed, with the aim of preventing the demonstrators from approaching the two danger spots, the Law Courts and the council building - because the demonstrators ’ numerical superiority was too great.", "The procession then went along the boulevard Félix-Eboué and eventually reached the Champ d ’ Arbaud, where it dispersed after having made two lengthy halts during which further speeches were made and slogans chanted by the crowd, firstly in front of the Law Courts in order to insult the judges and then outside the prison in order to demonstrate their solidarity with the imprisoned militants. After the demonstrators had gone past, it was found that they had taken advantage of these stops to paint offensive and insulting graffiti in green, red and black on the walls of the administrative buildings.", "The investigation that was immediately undertaken failed to identify those responsible for defacing the buildings. According to information received, most of the graffiti were the work of girls who were not from Basse-Terre, no doubt to avoid recognition as far as possible. One of them was claimed to be a teacher from Pointe- à-Pitre, but this could not be positively established. The intelligence service ( Renseignements généraux ) confirmed that the persons responsible for the graffiti were among the demonstrators who arrived by coach from Pointe- à-Pitre. They did not know their identities.", "I am accordingly sending you this report as it stands at present.", "The case is receiving my officers ’ full attention, however.", "Any new development or information making it possible to identify the perpetrators would immediately be followed up and I would not fail to keep you informed.\"", "B. The judicial investigation", "12. A judicial investigation was commenced on 21 February 1983 into the commission by a person or persons unknown of offences of criminal damage to public buildings and insulting the judiciary.", "13. On 24 February, the Principal Public Prosecutor at the Basse-Terre Court of Appeal wrote to the Chairman of the Guadeloupe Bar as follows:", "\"Please find enclosed a photocopy of a police report of 21 February 1983 from which it appears that Mr Ezelin, of the Guadeloupe Bar, took part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code.\" [See paragraph 23 below.]", "\"Would you kindly let me have your opinion of this case after hearing your colleague ’ s explanations.\"", "14. In a letter of 14 March 1983 the Chairman of the Bar informed the Principal Public Prosecutor of the outcome of his investigations, as follows:", "\"... Mr R. Ezelin [had] not [been] carrying a banner with another person but [had been] carrying a placard on his own which bore the words ‘ Trade Union of the Guadeloupe Bar against the Security and Freedom Act ’.", "No act, gesture or words insulting to the judiciary [could] be attributed to him.", "His participation in a demonstration [had] therefore [been] confined to protesting at the use of the ‘ Security and Freedom ’ Act.", "... .\"", "And he concluded:", "\"This being so, having regard to:", "(a) the facts: even assuming the worst as regards Mr Ezelin, the report by [the] Chief Superintendent ... does not accuse him of any insulting gesture, act or words; and", "(b) the provisions of Article 226 of the Criminal Code, it does not seem to me that my colleague Mr Ezelin can have incurred any liability in exercising his right to join a demonstration which had not been prohibited, carrying a placard with the words ‘ Trade Union of the Guadeloupe Bar against the Security and Freedom Act ’.", "... .\"", "15. After a postponement, the applicant was summoned to appear before the investigating judge on 25 April 1983 in order to give evidence as a witness, and at the interview he stated that he had nothing to say on the matter.", "16. On 19 May 1983 the judicial investigation ended with a discharge order on the ground that no evidence had been obtained which would make it possible to identify those responsible for the graffiti or for the insulting or threatening words uttered during the demonstration.", "C. The disciplinary proceedings against the applicant", "1. The decision of the Bar Council", "17. On 1 June 1983 the Principal Public Prosecutor sent the Chairman of the Bar a complaint against the applicant, which read as follows:", "\"Further to my letter of 24 February 1983 and our conversation of 31 May last, I wish to bring to your attention, under Article 113 of the Decree of 9 June 1972,\" - see paragraph 25 below - \"the conduct of Mr Ezelin, whose name appears on the roll of the members of the Guadeloupe Bar.", "In my earlier letter I sent you a photocopy of a police report of 21 February 1983 which gave an account of Mr Ezelin ’ s participation in a demonstration at Basse-Terre on 12 February 1983.", "The aim of the demonstration was to protest against two court decisions, the first of which was given on 1 February 1983 by the Basse-Terre Court of Appeal against Fernand Curier and the other of which was given on 7 February 1983 by the Basse-Terre tribunal de grande instance against Gérard Quidal and Joseph Samson, who were charged with offences of criminal damage to public buildings.", "During the demonstration, a number of particularly offensive graffiti were daubed in paint on the walls of the Law Courts calling one of the judges who had taken part in one of the decisions a fascist and calling all the judges ‘ MAKO ’ [pimps].", "The demonstrators even chanted death threats on numerous occasions against police officers who witnessed the events.", "The Basse-Terre investigating judge opened an investigation into the commission by a person or persons unknown of offences of criminal damage to public buildings, insulting the judiciary and aiding and abetting.", "All the persons reported as having taken part in the demonstration were interviewed and they stated either that they had not seen anyone paint the graffiti or, at the very least, that they did not know who the people responsible were.", "Only Roland Ezelin refused to answer the questions.", "As the proceedings ended with a discharge order, I am sending you attached a photocopy of the record of his examination as a witness, the date of which had been delayed for more than a month in order to suit his convenience.", "This attitude therefore strengthens, in my opinion, the view that Mr Ezelin, who was acquainted with the purpose of the demonstration (cf. photocopies of the leaflets distributed during it), wanted, by taking part in it, to associate himself in exemplary fashion with a political organisation ’ s criticisms of the judiciary in Guadeloupe and that, at all events, neither the death threats nor the insulting graffiti directed against judges before whom he argued cases surprised him on this occasion or even shocked him as a barrister.", "His refusal to reply to the investigating judge as a witness displays, moreover, an attitude of contempt for justice.", "In these circumstances I consider that there has been in this case a breach under Article 106 of the Decree of 9 June 1972\" - see paragraph 25 below - \"and I accordingly would ask you to kindly bring disciplinary proceedings against Mr Ezelin before the Bar Council.", "... .\"", "18. At a disciplinary hearing held under Article 104 of Decree no. 72-468 of 9 June 1972 (see paragraph 25 below), the Bar Council adopted the following decision on 25 July 1983:", "\"...", "At the request of the Principal Public Prosecutor, the Chairman of the Bar has already given an opinion dated 14 March 1983 as to the first series of charges against Mr Ezelin. It appears both from that opinion and from further explanations obtained from Mr Ezelin that he took part in the relevant demonstration in response to a call by the Trade Union of the Guadeloupe Bar, of which he is one of the leaders, in order to protest against the use of the direct-committal procedure\" - obviating the need for a preliminary judicial investigation - \"and the continuation in force of the so-called Security and Freedom Act, which has since been repealed. It does not appear from the judicial investigation that Mr Ezelin committed a breach of Article 106 of the Decree of 9 June 1972 in connection with taking part in the aforesaid demonstration or that any disciplinary sanction can consequently be imposed on him.", "The inquiries made into these events have, moreover, been brought to an end with a discharge order that has now become final.", "As regards the second series of charges against Mr Ezelin, it appears both from the judicial investigation and from Mr Ezelin ’ s explanations that his refusal to make a statement to the investigating judge was prompted by anxieties based on Article 105 of the Code of Criminal Procedure\" - see paragraph 24 below - \"and a concern to comply with Article 89 of the Decree of 9 June 1972,\" - see paragraph 25 below - \"as some of the persons summoned by the investigating judge in connection with the events on which his evidence was being sought had previously consulted him as a lawyer.", "It is true, as Mr Ezelin maintained, that in a letter of 24 February 1983 the Principal Public Prosecutor informed the Chairman of the Bar that Mr Ezelin ‘ [had taken] part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under Article 226 of the Criminal Code ’.", "Mr Ezelin, having been informed of this charge, was thus justified in relying on the provisions of Article 105 of the Code of Criminal Procedure.", "While it may seem regrettable that Mr Ezelin did not make clearer to the judge his reasons for refusing to make a statement, it does not appear to the board that this refusal may be regarded as contempt for justice and the judiciary. Moreover, if it had been deemed sufficiently serious to amount to obstructing the normal course of the proceedings in question, the investigating judge would not have failed to avail himself of the provisions of Article 109 of the Code of Criminal Procedure\" - see paragraph 24 below - \"nor the prosecution to make the appropriate applications before the discharge order was made closing the investigation proceedings in connection with which Mr Ezelin had been summoned as a witness.", "Consequently, having regard to the evidence, to Mr Ezelin ’ s explanations and to his usual excellent professional conduct, the board considers that there is no occasion to impose any disciplinary sanction on Mr Ezelin,", "For these reasons,", "The Bar Council, acting in its disciplinary capacity and at first instance,", "Decides", "1. There is no occasion to impose any disciplinary sanction on Mr Roland Ezelin on account of the matters of which it was seised by the Principal Public Prosecutor on 1 June 1983.", "2. The board recommends the Chairman of the Bar to remind both Mr Ezelin and the whole of the Bar of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats may be involved.", "... .\"", "2. The Basse-Terre Court of Appeal ’ s judgment of 12 December 1983", "19. The Principal Public Prosecutor appealed to the Basse-Terre Court of Appeal against this decision. At the hearing he asked the Court to impose on the applicant the disciplinary penalty of a warning.", "20. On 12 December 1983 the Court of Appeal reversed the Bar Council ’ s decision and imposed the disciplinary penalty of a reprimand on Mr Ezelin, a heavier penalty than a warning:", "\"...", "It is established that on 12 February 1983 Mr Ezelin took part in a demonstration in the streets of Basse-Terre.", "The police report and appended documents make it clear beyond contradiction that the acknowledged purpose of the demonstration, which was organised by the independence movements in the département, was to protest noisily against the recent sentences of three militants to 15 days ’ imprisonment and a FRF 10,000 fine for damage to administrative buildings.\"", "[There followed a summary of the report reproduced in paragraph 11 above.]", "\"It is not alleged that Mr Ezelin took part in this demonstration any more actively than by his constant presence and by carrying a placard.", "Following those events a judicial investigation was opened into the commission by a person or persons unknown of offences of damage to public buildings, insulting the judiciary and aiding and abetting. Mr Ezelin was summoned as a witness by the investigating judge, together with a number of other persons recognised by the police officers. After he had taken the oath, his examination is recorded as follows:", "‘ You explain to me the circumstances of the events which have given rise to this case. I have nothing to say on the matter.", "After an intervention: I repeat that I have nothing to say on the matter.", "Question: Were you present at the demonstration which took place on 12 February last in the streets of Basse-Terre? If so, did you see anybody painting anything on the walls of various buildings in the town?", "Answer: I have nothing to say on the matter.", "Read, confirmed and signed together with me and the registrar. ’", "It appears from the foregoing that Mr Ezelin, avocat at the Court of Appeal and member of the Bar Council, participated in the whole of the demonstration which took place in the aforementioned, undisputed circumstances.", "During this demonstration serious threats were continually made against a police constable and insults uttered against various other persons, including a judge of the Court of Appeal, a well-known regional figure and the judiciary as a whole, and the walls of the Law Courts and of the département council building opposite were covered with particularly offensive and insulting graffiti directed against the same persons.", "It is beyond doubt that Mr Ezelin, who formed part of the procession, notably when it halted in front of the police station, the Law Courts and the prison, could not have failed to see these insulting and offensive graffiti being painted in very large letters on all the walls of the Law Courts - the place of work of judges and barristers alike - and of the council building, and that he could not have failed to hear the threats and insults that were unceasingly directed against the same people.", "He was there in his capacity as an avocat, since he carried a placard announcing his profession, and at no time did he dissociate himself from the demonstrators ’ offensive and insulting acts or leave the procession.", "Such misconduct on the part of a member of the Bar publicly proclaiming his profession cannot be justified - as has been submitted on his behalf - by personal beliefs or trade-union instructions, and it amounts to a breach of discretion under Article 106 of the Decree of 9 June 1972.", "Furthermore, Mr Ezelin, when examined as a witness by the investigating judge, refused to give evidence about matters of which he had knowledge, without giving any reason.", "He thus contravened the provisions of Article 109, third paragraph, of the Code of Criminal Procedure, which are binding on all citizens and of whose requirements he could not, as a lawyer, be unaware.", "Seeing that Mr Ezelin contravened a statutory provision and showed a lack of discretion, he rendered himself liable to the disciplinary sanctions listed in Article 107 of the Decree of 9 June 1972 .\" [See paragraph 25 below.]", "\"Having regard to the unanimously favourable opinion of his professional conduct, the Court considers that the penalty should be a reprimand.", "For these reasons,", "Having regard to sections 22 et seq. of Act no. 71-1130 of 31 December 1971 and Articles 104 et seq. of Decree no. 72-468,", "Sitting in public as a full court,", "Sets aside the decision taken on 25 July 1983 by the Council of the Bar of the département of Guadeloupe at the Basse-Terre Court of Appeal, sitting as a disciplinary board,", "Sentences Mr Ezelin, of that Bar, to the disciplinary penalty of a reprimand; and", "Awards costs against him.", "... .\" (Gazette du Palais, 9 February 1984, jurisprudence, pp. 76-77)", "3. The Court of Cassation ’ s judgment of 19 June 1985", "21. The applicant appealed on points of law. He argued in particular that the disciplinary sanction imposed on him infringed Articles 10 and 11 (art. 10, art. 11) of the Convention.", "On 19 June 1985 the Court of Cassation (First Civil Division) delivered a judgment dismissing the appeal. It said, inter alia:", "\"...", "The Court of Appeal ... did not hold [Mr Ezelin] liable in virtue of a collective responsibility for criminal offences committed by other demonstrators but stated that during the demonstration, whose purpose was to protest noisily against recent criminal sentences, insults had been uttered and offensive graffiti daubed on all the walls of the Law Courts, directed against the judiciary as a whole and against a judge of the Court of Appeal by name and a well-known figure in the département who practised as a barrister. The Court of Appeal added that Mr Ezelin, who was at the demonstration as an avocat and had heard the threats and insults and seen the offensive graffiti daubed on the walls of the Law Courts, the place of work of judges and barristers alike, did not at any time express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts. It was entitled to infer from this that the behaviour was a breach of discretion amounting to a disciplinary offence. ...", "...", "... Article 109 of the Code of Criminal Procedure lays a duty on any person heard as a witness to give evidence; and by Article 106 of the Decree of 9 June 1972, any infringement of statutes or regulations constitutes a disciplinary offence, irrespective of the investigating judge ’ s power to fine a witness who refuses to give evidence. The Court of Appeal found that in reply to the questions put by the investigating judge, and in particular the question: ‘ Were you present at the demonstration in the streets of Basse-Terre on 12 February 1983? ’, Mr Ezelin said merely: ‘ I have nothing to say on the matter ’. It added that Mr Ezelin gave no reason to explain this attitude. It was entitled to infer from this that Mr Ezelin, who had thus refused to give evidence without justifying his refusal on the basis of Article 105 of the Code of Criminal Procedure or of professional confidentiality, had committed a breach of the law and of discretion vis-à-vis the investigating judge and that these amounted to a disciplinary offence. The Court of Appeal thus justified its decision in law, and none of the limbs of the ground of appeal is well-founded ... .\" (Gazette du Palais, 11-12 October 1985, pp. 16 and 17)" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "22. The following provisions of French law need to be set out:", "A. General provisions", "1. The Criminal Code", "23.", "Article 226, first paragraph", "\"Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court, in a manner likely to impair the authority or independence of the judiciary, shall be liable to imprisonment for not less than one month and not more than six months and a fine of not less than 500 francs and not more than 90,000 francs or to only one of these two penalties.\"", "2. The Code of Criminal Procedure", "24.", "Article 105", "\"An investigating judge in charge of an investigation and judges and senior police officers ( officiers de police judiciaire ) acting on judicial warrants shall not, with the intention of preventing the exercise of the rights of the defence, examine as witnesses persons against whom there is substantial, consistent evidence of guilt.\"", "Article 109", "\"Anyone summoned to be examined as a witness shall be required to appear, to take the oath and to give evidence, subject to the provisions of Article 378 of the Criminal Code [duty of professional confidentiality].", "If a witness fails to appear, the investigating judge may, on an application by the public prosecutor, have the witness brought before him by the police and impose on him a fine of not less than 2,500 francs and not more than 5,000 francs. If the witness subsequently appears, however, he may, if he apologises and provides an explanation, be excused this penalty by the investigating judge, after the public prosecutor has made submissions.", "The same penalty may, on an application by the prosecutor, be imposed on a witness who, although he has appeared, refuses to take the oath and to give evidence.", "... .\"", "B. Provisions relating specifically to avocats", "1. The Decree of 9 June 1972 \"regulating the profession of avocat, implementing the Act of 31 December 1971 reforming certain court and legal professions\"", "25.", "Article 89", "\"An avocat must not, in any matter, make any disclosure in breach of professional confidentiality. He must, in particular,respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation.\"", "Article 104", "\"The Bar Council sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll, list of trainees or list of honorary avocats.\"", "Article 106", "\"Any contravention of statutes or regulations, infringement of professional rules or breach of integrity, honour or discretion, even relating to non-professional matters, shall render the avocat responsible liable to the disciplinary sanctions listed in Article 107.\"", "Article 107", "\"The disciplinary penalties shall be:", "A warning; A reprimand; Suspension for a period not exceeding three years; Striking off the roll of avocats or list of trainees or withdrawal of honorary status.", "A warning, a reprimand and suspension may, if so provided in the decision in which the disciplinary penalty is imposed, entail loss of membership of the Bar Council for a period not exceeding ten years.", "The Bar Council may further order, as an ancillary penalty, that any disciplinary penalty shall be publicly displayed on the Bar ’ s premises.\"", "Article 113", "\"The Chairman of the Bar, either on his own initiative or on an application from the Principal Public Prosecutor or on a complaint by any party affected, shall inquire into the conduct of the avocat concerned. He shall then either discontinue the proceedings or refer the matter to the Bar Council.", "If he has received a complaint, he shall inform the complainant. If the facts were reported to him by the Principal Public Prosecutor, he shall notify the latter.", "... .\"", "2. The Act of 15 June 1982 \"on the procedure applicable in the event of professional misconduct by an avocat at a court hearing\"", "26. Avocats are bound by the oath they take when entering upon their duties. The wording of the oath is given in section 1 of the Act of 15 June 1982 :", "\"I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner.\"", "Before that Act came into force, the oath was worded as follows:", "\"I swear, as an avocat, to defend and counsel in a dignified, conscientious, independent and humane manner, with respect for the courts, the public authorities and the rules of the Bar, and neither to say nor to publish anything contrary to statute, regulations, morals, the security of the State, or public order.\" (Article 23 of the Decree of 9 June 1972)", "An avocat who took the oath before the Act of 15 June 1982 came into force is deemed to have taken it in its current form.", "27. In a judgment of 9 June 1964 the Court of Cassation (First Civil Division) held that the avocat ’ s oath \"also [bound] him in all circumstances not to deviate from the respect due to the courts and to the public authorities; ...\". ( Juris-Classeur périodique 1964, II, no. 13797, note by J.A.)", "Moreover, in a judgment of 30 June 1965 (Criminal Division, Bouvier ) the Court of Cassation held that an avocat, while being entitled to protest at any infringement of the rights of the defence, must refrain from any expression which would reflect on the honour or discretion of a judge.", "PROCEEDINGS BEFORE THE COMMISSION", "28. In his application of 16 October 1985 to the Commission (no. 11800/85), Mr Ezelin relied on Articles 10 and 11 (art. 10, art. 11) of the Convention. He submitted that the disciplinary sanction imposed on him seriously interfered with his freedom of expression and of peaceful assembly.", "29. The Commission declared the application admissible on 13 March 1989. In its report of 14 December 1989 (made under Article 31) (art. 31) it expressed the opinion that there had been a breach of Article 11 (art. 11) (by fifteen votes to six) and that no separate issue arose under Article 10 (art. 10) (unanimously). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS TO THE COURT", "30. At the hearing on 20 November 1990 the Agent of the Government maintained the submissions made in his memorial. In those the Court was asked to hold that there had been no violation of Article 11 (art. 11) and to endorse the Commission ’ s view that no separate issue arose under Article 10 (art. 10).", "Counsel for the applicant asked the Court to find that there had been a breach of freedom of expression and of freedom of peaceful assembly guaranteed in Articles 10 and 11 (art. 10, art. 11) and to award his client the compensation sought.", "AS TO THE LAW", "31. The applicant considered that the disciplinary sanction imposed on him by the Basse-Terre Court of Appeal was incompatible with his freedom of expression and his freedom of peaceful assembly, which were protected by Articles 10 and 11 (art. 10, art. 11) of the Convention.", "32. The Government pointed out that this sanction was also designed to punish Mr Ezelin for his refusal to give evidence to the investigating judge. They criticised the Commission for suggesting that the only matter in issue was the applicant ’ s participation in the demonstration.", "33. The applicant was in fact punished for having neither shown his disapproval of the \"demonstrators ’ offensive and insulting acts\" nor left the procession in order to dissociate himself from them and also for having refused to give evidence although he had not invoked Article 105 of the Code of Criminal Procedure or professional confidentiality (see paragraphs 20 and 21 above). Nevertheless, he was summoned before the investigating judge as a result of having taken part in the demonstration. That being so, the question of the refusal to give evidence - an issue which in itself does not come within the ambit of Articles 10 and 11 (art. 10, art. 11) - is a secondary one. It may be noted, moreover, that Mr Ezelin did not remain totally silent in the presence of the investigating judge: he stated that he had nothing to say on the matter, and the judge did not see fit to use his power under Article 109, third paragraph, of the Code of Criminal Procedure (see paragraphs 15, 20 and 21 above).", "I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)", "34. The applicant based one of his submissions on Article 10 (art. 10), which provides:", "\"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\"", "35. In the circumstances of the case, this provision is to be regarded as a lex generalis in relation to Article 11 (art. 11), a lex specialis, so that it is unnecessary to take it into consideration separately. On this point the Court agrees with the Commission.", "II. ALLEGED VIOLATION OF ARTICLE 11 (art. 11)", "36. The main question in issue concerns Article 11 (art. 11), which provides:", "\"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...\"", "37. Notwithstanding its autonomous role and particular sphere of application, Article 11 (art. 11) must, in the present case, also be considered in the light of Article 10 (art. 10) (see the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 23, § 57). The protection of personal opinions, secured by Article 10 (art. 10), is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (art. 11).", "A. Whether there was an interference with the exercise of the freedom of peaceful assembly", "38. In the Government ’ s submission, Mr Ezelin had not suffered any interference with the exercise of his freedom of peaceful assembly and freedom of expression: he had been able to take part in the procession of 12 February 1983 unhindered and to express his convictions publicly, in his professional capacity and as he wished; he was reprimanded only after the event and on account of personal conduct deemed to be inconsistent with the obligations of his profession.", "39. The Court does not accept this submission. The term \"restrictions\" in paragraph 2 of Article 11 (art. 11-2) - and of Article 10 (art. 10-2) - cannot be interpreted as not including measures - such as punitive measures - taken not before or during but after a meeting (cf. in particular, as regards Article 10 (art. 10), the Handyside judgment of 7 December 1976, Series A no. 24, p. 21, § 43, and the Müller and Others judgment of 24 May 1988, Series A no. 133, p. 19, § 28).", "40. In the second place, the Government maintained that despite the peaceful nature of Mr Ezelin ’ s own intentions and behaviour, the sanction of which he complained had in no way infringed his freedom of peaceful assembly seeing that the demonstration had got out of hand.", "In the Commission ’ s opinion, no intentions that were not peaceful could be imputed to the applicant.", "41. The Court points out that prior notice had been given of the demonstration in question and that it was not prohibited. In joining it, the applicant availed himself of his freedom of peaceful assembly. Moreover, neither the report made by the Chief Superintendent of the Basse-Terre police nor any other evidence shows that Mr Ezelin himself made threats or daubed graffiti.", "The Court of Appeal found the charge of not having \"dissociate[d] himself from the demonstrators ’ offensive and insulting acts or [left] the procession\" (see paragraph 20 above) proven. The Court of Cassation noted that at no time did he \"express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts\" (see paragraph 21 above).", "The Court accordingly finds that there was in this instance an interference with the exercise of the applicant ’ s freedom of peaceful assembly.", "B. Whether the interference was justified", "42. It must therefore be determined whether the sanction complained of was \"prescribed by law\", prompted by one or more of the legitimate aims set out in paragraph 2 and \"necessary in a democratic society\" for achieving them.", "1. \"Prescribed by law\"", "43. The applicant submitted that Article 106 of the Decree of 9 June 1972 was in no way intended to restrict the right of assembly of avocats; moreover, the general nature of the words \"breach of ... discretion\" made it impossible to define a breach in advance and allowed of any sanction after the event.", "44. The Government considered, on the contrary, that this provision required avocats, who were \"officers of the court\" (auxiliaires de la justice), to respect a number of professional principles of a legal and ethical nature. The provision was sufficiently precise where, as in the instant case, the conduct being punished was contrary to the rules of the profession.", "45. According to the Court ’ s case-law, a norm cannot be regarded as a \"law\" unless it is formulated with sufficient precision to enable the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, the Müller and Others judgment previously cited, Series A no. 133, p. 20, § 29). Experience shows, however, that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society (ibid.).", "In the instant case the legal basis of the sanction complained of lay solely in the special rules governing the profession of avocat. Article 106 of the relevant Decree of 9 June 1972 provides unequivocally that any avocat, even in his non-professional activities, has special obligations (see paragraph 25 above); and the Court of Cassation has held that these include the respect due to the judicial authorities (see paragraph 27 above).", "That being so, the interference was \"prescribed by law\".", "2. Legitimate aim", "46. The applicant claimed that the sanction was not in pursuit of a legitimate aim; it resulted in his being prevented from expressing his ideas and his trade-union demands.", "The Government, on the other hand, submitted that its purpose was the \"prevention of disorder\".", "47. It is apparent from the evidence that Mr Ezelin incurred the punishment because he had not dissociated himself from the unruly incidents which occurred during the demonstration. As the Commission noted, the authorities took the view that such an attitude was a reflection of the fact that the applicant, as an avocat, endorsed and actively supported such excesses. The interference was therefore in pursuit of a legitimate aim, the \"prevention of disorder\".", "3. Necessity in a democratic society", "48. In the applicant ’ s submission, the interference of which he was complaining was not \"necessary in a democratic society\". To claim that he should have left the procession in order to express his disapproval of acts committed by other demonstrators was, he said, to deny his right to freedom of peaceful assembly.", "49. The Government, on the other hand, submitted that the disputed measure did indeed answer a \"pressing social need\", having regard in particular to Mr Ezelin ’ s position as an avocat and to the local background. By not disavowing the unruly incidents that had occurred during the demonstration, the applicant had ipso facto approved them. Furthermore, they claimed, it was essential for judicial institutions to react to behaviour which, on the part of an \"officer of the court\" ( auxiliaire de la justice), seriously impaired the authority of the judiciary and respect for court decisions. Lastly, the gravity of the two breaches of professional duty of which the applicant was accused justified the sanction imposed on him, which was a light, token sentence that did not offend against the proportionality principle laid down in the Court ’ s case-law.", "50. The Commission contended that a disciplinary penalty based on an impression to which Mr Ezelin ’ s behaviour might give rise was not compatible with the strict requirement of a \"pressing social need\" and therefore could not be regarded as \"necessary in a democratic society\".", "51. The Court has examined the disciplinary sanction in question in the light of the case as a whole in order to determine in particular whether it was proportionate to the legitimate aim pursued, having regard to the special importance of freedom of peaceful assembly and freedom of expression, which are closely linked in this instance.", "52. The proportionality principle demands that a balance be struck between the requirements of the purposes listed in Article 11 § 2 (art. 11-2) and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places. The pursuit of a just balance must not result in avocats being discouraged, for fear of disciplinary sanctions, from making clear their beliefs on such occasions.", "53. Admittedly, the penalty imposed on Mr Ezelin was at the lower end of the scale of disciplinary penalties given in Article 107 of the Decree of 9 June 1972 (see paragraph 25 above); it had mainly moral force, since it did not entail any ban, even a temporary one, on practising the profession or on sitting as a member of the Bar Council. The Court considers, however, that the freedom to take part in a peaceful assembly - in this instance a demonstration that had not been prohibited - is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion.", "In short, the sanction complained of, however minimal, does not appear to have been \"necessary in a democratic society\". It accordingly contravened Article 11 (art. 11).", "III. APPLICATION OF ARTICLE 50 (art. 50)", "54. Article 50 (art. 50) provides:", "\"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.\"", "The applicant sought compensation for damage and reimbursement of expenses under this provision.", "A. Damage", "55. Mr Ezelin claimed compensation in the amount of 25,000 French francs (FRF) for non-pecuniary damage, on the ground that publication of the sanction complained of in legal journals and the local publicity which ensued had harmed his reputation and interests.", "56. The Government left the matter to the Court ’ s discretion in the event of the Court ’ s finding that damage had indeed been sustained.", "The Delegate of the Commission submitted that compensation should be awarded, but did not suggest any figure.", "57. In the circumstances of the case the finding that there has been a breach of Article 11 (art. 11) affords Mr Ezelin sufficient just satisfaction for the damage alleged.", "B. Costs and expenses", "58. The applicant also claimed reimbursement of FRF 40,000 in respect of fees, costs and expenses incurred in the Court of Cassation (FRF 15,000) and in the proceedings before the Convention institutions (Commission: FRF 10,000; Court: FRF 15,000).", "No observations were made by the Government or the Delegate of the Commission.", "59. On the basis of the information in its possession and its case-law on the subject, the Court, making an assessment on an equitable basis, allows the applicant ’ s claim in full." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant is a trade union based in London with a membership of more than 80,000 persons employed in different sectors of the transport industry in the United Kingdom.", "7. Noting that in the domestic system industrial disputes are governed by very detailed legislative provisions, the applicant union raised two specific limitations on the statutory protection of strike action that it submitted were inconsistent with Article 11 of the Convention, each of the contested limitations being exposed by a separate set of facts.", "A. Strike-ballot notice: The EDF situation", "8. The relevant set of facts relied on under this head involved the company EDF Energy Powerlink Ltd. (EDF), which was under contract to manage, operate and maintain the electrical power network used by London ’ s underground transport system. The RMT was one of several trade unions recognised by the company for the purposes of collective bargaining. In all, the company employed some 270 staff at three different sites, the biggest one being that at Tufnell Park with 155 employees. According to the applicant union, there were 52 RMT members there at the relevant time. The company would not have known which of its employees were members of a trade union, as it did not operate a system for deducting union subscriptions from staff wages.", "9. Between June and September 2009, the applicant union and the company held several rounds of negotiation on pay and conditions of service. Dissatisfied with the company ’ s offer, it decided to embark on industrial action and on 24 September gave the requisite ballot notice to the company (see paragraph 18 below). The notice described the category of workers that would be voting on industrial action as “Engineer/Technician” and stated how many of such were based at each site. The following day the company wrote to the applicant union, stating that it did not recognise the term “Technician” (it categorised its workers in a more precise way: fitters, jointers, test - room inspectors, day testers, shift testers, OLBI fitters). It considered the ballot notice served on it was therefore not compliant with the relevant statutory provisions. The applicant union replied the following week, maintaining that the term it had used was sufficient to allow the company to know which employees were concerned, thereby meeting the purpose of the relevant provisions of law.", "10. Following a further exchange of correspondence between the two sides, the company applied to the High Court for an injunction to restrain the applicant union from calling industrial action on the basis of the ballot. The injunction was granted by Blake J on 23 October 2009.", "11. The judge did not accept the applicant union ’ s claim that the statutory requirements unduly restricted the exercise of its right to call industrial action, this same argument having been rejected by the Court of Appeal in the case of Metrobus Ltd v. Unite the Union ([2009] EWCA Civ 829). He also rejected the argument that since the procedure was still at an early stage it would be premature to put a stop to it. Instead he considered the risk of unlawful strike action to be sufficiently imminent to justify the injunction. Given the sector involved, the implications of a shutdown would be substantial, with widespread ramifications elsewhere. Addressing the question whether the applicant union had in fact given sufficient indication of the category of staff that would be balloted, the judge found that it had not, since the union ’ s members at Tufnell Park included persons working at different trades. The applicant union was not under an absolute duty, but instead a duty to do its reasonable best to provide sufficient information to the company. The fact that it used its own system of job classification was relevant but not decisive. Similarly, the fact that a union might not record or possess such information could be a highly material consideration, but not necessarily a decisive one. The applicant union had accepted that it was practicable for a union to supply the necessary information in the context of a small place of employment – it was therefore neither onerous nor unreasonable to require it to do so. Finally, the judge observed that while there was as yet no stated intention on the part of the applicant union to call a strike (the ballot not having taken place), there was a clear nexus between the failure to provide the requisite notice and the employer ’ s ability to respond to the situation either by making preparations for a work stoppage or seeking to persuade employees not to vote for industrial action. The applicant union ’ s failure to comply with the statutory requirements was therefore not a mere technical or immaterial breach.", "12. Application for permission to appeal was refused on the papers on 24 November 2009. Renewed application for permission to appeal was refused on 26 January 2010, by which point the industrial dispute between the applicant union and EDF had already been resolved.", "13. Following the granting of the injunction against the strike, the applicant union set about gathering the precise job descriptions of the workers concerned and included these in a fresh notice of a strike ballot, the result of which supported industrial action. This went ahead on dates in December 2009 and early January 2010. EDF made an improved offer on 7 January 2010 which was accepted by the union ’ s members and took effect as a collective agreement on 1 April of the same year.", "B. Secondary strike action: The Hydrex situation", "14. The set of facts relied on under this head involved some RMT members who were employed in railway maintenance by Fastline Limited, a company that formed part of a group of companies known as Jarvis plc. Another company in the group, Jarvis Rail Limited, was engaged in rail engineering work. At the time, Fastline and Jarvis Rail Limited (“Jarvis”) employed approximately 1,200 persons in total, 569 of whom were members of the RMT. In August 2007, Fastline transferred part of its undertaking, comprising twenty employees, to another company known as Hydrex Equipment (UK) Ltd (“Hydrex”). These employees ’ existing terms and conditions were preserved by Hydrex, as required by law (Transfer of Undertakings (Protection of Employment) Regulations 2006). According to the applicant union, the employees involved were nonetheless concerned for their situation, as Hydrex workers were paid significantly less. It also appeared that trade unions had less influence in that company.", "15. In March 2009 Hydrex ’ s management informed the ex-Jarvis employees that because of difficult market conditions it intended to reduce the level of their terms and conditions to that of other Hydrex staff. This meant a reduction in salary of some 36-40%, according to the applicant union. In the months that followed, the applicant union made representations to Hydrex on behalf of the employees concerned but without achieving any agreement. When the company indicated that it intended to proceed with its plan, the applicant union organised a strike ballot of the workers concerned (seventeen by that stage). They voted in favour of a strike, which took place between 6 November and 9 November 2009. During the strike, the participants organised pickets at a number of the sites where they normally carried out their work. This caused Hydrex to write to the applicant union to remind it that by law picketing could take place only at or near the employer ’ s premises and to warn that the union was exposing itself to liability for any economic loss incurred by the company due to this unlawful action (see paragraph 19 below).", "16. A second strike was announced for 18-20 November 2009, but this was postponed when Hydrex indicated its willingness to resume discussions with the applicant union. This led to a revised offer which the union submitted to its Hydrex members, recommending that they accept it. The result of the vote was known on 21 December 2009. Nine votes were cast, all of them rejecting the Hydrex offer. According to the applicant union, its position was extremely weak given the very small number of its members in the Hydrex workforce. These were far too few for their strike action to have any appreciable effect on the company, whose activities had not really been disrupted at all. The applicant union considered that it would have been in a position to defend its members ’ interests much more effectively had it been able to mobilise its Jarvis members as well. The simple threat of a strike on this scale, and a fortiori an actual stoppage, would have exerted significantly more pressure on Hydrex to maintain existing terms and conditions. The applicant union stated that Jarvis employees would have been willing to strike in support of their colleagues at Hydrex. Instead, the Hydrex members had had to stand alone, and in the end had no option but to accept the new terms and conditions. They did so under protest.", "17. According to the applicant union, neither Jarvis nor Hydrex exist any longer, having been put into administration in March 2010 and November 2011 respectively. The Hydrex undertaking was purchased by another company, which in turn sold it on in November 2012." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "18. In relation to the EDF case, Blake J referred to the following provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) :", "Section 226", "“ (1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action", "(a) is not protected unless the industrial action has the support of a ballot, and", "(b) where section 226A falls to be complied with in relation to the person ’ s employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.”", "Section 226A", "“ (1) The trade union must take such steps as are reasonably necessary to ensure that—", "(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), ...", "is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.", "(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—", "(a) stating that the union intends to hold the ballot,", "(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and", "(c) containing —", "( i ) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or", "...", "(2A) The lists are—", "(a) a list of the categories of employee to which the employees concerned belong, and", "(b) a list of the workplaces at which the employees concerned work.", "(2B) The figures are—", "(a) the total number of employees concerned,", "(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and", "(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).", "...", "(2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).”", "19. In relation to the Hydrex situation, the statutory protection against liability in tort regarding acts done “in contemplation or furtherance of a trade dispute” (section 219 of the 1992 Act) is confined, by section 244 of the same Act, to “a dispute between workers and their employer”. Secondary action is expressly excluded from statutory protection by section 224 of the Act, which defines it as follows:", "“(2) There is secondary action in relation to a trade dispute when, and only when, a person—", "(a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or", "(b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,", "and the employer under the contract of employment is not the employer party to the dispute.”", "The provisions on peaceful picketing are contained in section 220 of the Act, which provides:", "“(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend—", "(a) at or near his own place of work, or", "(b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,", "for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.", "(2) If a person works or normally works—", "(a) otherwise than at any one place, or", "(b) at a place the location of which is such that attendance there for a purpose mentioned in subsection (1) is impracticable,", "his place of work for the purposes of that subsection shall be any premises of his employer from which he works or from which his work is administered.”", "20. Both parties referred to the previous legislative regime, which included secondary action in the scope of the statutory protection. The Government explained that secondary action was first outlawed by the Trade Disputes and Trade Unions Act 1927, adopted in the aftermath of the general strike of 1926. The situation changed with the Trade Disputes and Trade Unions Act 1946, which lifted the ban.", "21. Further reforms occurred in the 1970s. The Trade Union and Labour Relations Act 1974 afforded substantially broader protection to industrial action than is the case at present. It provided at section 13(1) (as amended in 1976):", "“An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only—", "(a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or.", "(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.”", "22. This provision was considered by the House of Lords in the case of Express Newspapers Ltd v. McShane and another ([1980] AC 672). The case involved secondary action in the newspaper industry, led by the National Union of Journalists. The majority of the House held that the test to be applied to determine whether an act enjoyed the protection of section 13(1) was a subjective one, that is to say, it was sufficient that the person honestly believed that the act in question might further the cause of those taking part in the dispute. The genuineness of such belief could be tested by the courts, but the person calling the strike did not need to prove that it was reasonably capable of achieving the objective. Lord Wilberforce dissented on the nature of the test, but concurred with the finding that the injunction granted against the union should be discharged.", "23. Although the applicant union maintained that the McShane judgment was not a significant development in the law, in that it merely confirmed the interpretation of clear statutory language, the case was referred to during the parliamentary debates leading to the passage of the Employment Act 1980 as one of the reasons for introducing restrictions on secondary action (in section 17 of that Act). The 1980 Act retained immunity for secondary action provided that three conditions were satisfied: ( i ) that it was taken against first suppliers or customers of the employer in dispute or against associated employers of the employer which were substituting for it during the dispute; (ii) that its principal purpose was to directly prevent or disrupt the supply of goods or services between the employer in dispute and his supplier or customer during the dispute; and (iii) that it was likely to achieve that purpose.", "24. The current rule was originally introduced by the Employment Act 1990, and then re-enacted in the 1992 Act in the terms set out above.", "25. The parties provided statistical information on the number of days lost to industrial action in the United Kingdom, going back to the 1970s. The Government pointed out that in that decade, the average number of days lost each year was 12.9 million. This decreased in the 1980s to an average of 7.2 million days. From the early 1990s to the present day, the figure is much lower, standing at 700,000 days lost per year on average. They attributed part of this decline at least to the ban on secondary action. The applicant union disputed that interpretation. It noted that the available statistics did not distinguish between primary and secondary strikes. It was therefore impossible to identify the true extent of secondary action before 1980 and, consequently, impossible to ascertain the impact of the restrictions introduced in 1980 and 1990. In the applicant union ’ s view, secondary action had been relatively rare, the overwhelming majority of strikes at that time had been primary strikes. It referred to official figures (contained in a Government publication, the “Employment Gazette”) indicating that, since the 1960s, the United Kingdom was consistently close to the European average for days lost to industrial action. According to this source, the country had been middle-ranking since the end of the 1970s. The only exception was for 1984, on account of the long and widespread strike in the mining industry that year. The Government submitted that the comparative statistics needed to be interpreted with caution, given the profound transformation of Europe over the past twenty years. The fact that the United Kingdom remained close to the European average in this regard indicated that, contrary to the applicant union ’ s point of view, the rules on industrial action were not so restrictive as to make it excessively difficult to organise strikes.", "III. RELEVANT INTERNATIONAL LAW", "26. In support of its application, the applicant union included references to other international legal instruments, and the interpretation given to them by the competent organs. The most relevant and detailed of these materials are referred to below.", "A. International Labour Organization Conventions", "27. While there is no provision in the Conventions adopted by the International Labour Organization (ILO) expressly conferring a right to strike, both the Committee on Freedom of Association and the Committee of Experts on the Application of Conventions and Recommendations ( “ the Committee of Experts”) have progressively developed a number of principles on the right to strike, based on Articles 3 and 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (summarised in “ Giving globalization a human face ”, International Labour Office, 2012, § 117). This Convention was ratified by the United Kingdom on 27 June 1949.", "1. Concerning notice requirements", "28. The Committee of Experts has commented several times upon the notice requirements for industrial action in the United Kingdom. The applicant union referred to the following statement, adopted in 2008:", "“In its previous comments, the Committee had taken note of comments made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee notes that according to the Government, a number of measures have already been taken to simplify sections 226 - 235 of the TULRA and 104 - 109 of the 1995 Order; moreover, as part of a plan published in December 2006 to simplify aspects of employment law, the Government explicitly invited trade unions to come forward with their ideas to simplify trade union law further. Since then, the Government has held discussions with the TUC to examine their ideas to simplify aspects of the law on industrial action ballots and notices. These discussions are ongoing. The Committee notes that in its latest comments, the TUC notes that there has been no progress in this reform. The Committee requests the Government to indicate in its next report progress made in this regard .” [1]", "29. More recently, in a direct request to the Government of the United Kingdom, the Committee of Experts stated:", "“ In its previous comments, the Committee had taken note of comments made by the Trade Union Congress (TUC) to the effect that the notice requirements for an industrial action to be protected by immunity were unjustifiably burdensome. The Committee requested the Government to continue to provide information on any developments, as well as any relevant statistics or reports on the practical application and effect of these requirements. The Committee notes the Government ’ s indication that the Court of Appeal decision in RMT v. Serco and in ASLEF v. London Midland (2011) EWCA 226, overturned injunctions which had been obtained by Serco and London Midland Railway against the two main national transport unions, the RMT and ASLEF. In both cases, the injunctions had been obtained on the basis of the unions ’ breaches of statutory balloting and notification procedures. This case was the latest in a series of cases assessing the extent of unions ’ technical obligations to ensure that a fair balloting process had taken place. In the RMT v. Serco decision, the Court of Appeal issued some key clarification so that in future it is likely to be more difficult for employers to obtain injunctions to prevent strike action as a result of breaches of the balloting and notice requirements. A Court of Appeal decision is binding on all lower courts. Subsequent to this case, in Balfour Beatty v. Unite (2012) EWHC 267 (QB), the Court found against Balfour Beatty, taking account of the Serco case and the need to strike a balance between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Committee notes the TUC ’ s observation that, while it greatly welcomes both decisions, it considers that they do not fully address the problems arising under the legislation that it has identified and that the legislation continues to impose intolerable demands on trade unions. The Committee notes these developments with interest and requests the Government to provide its comments on the concerns raised by the TUC. ” [2]", "2. Concerning secondary action", "30. The Committee of Experts has taken the following view ( see “ Giving globalization a human face ”, § 125) :", "“With regard to so-called ‘ sympathy ’ strikes, the Committee considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of globalization characterized by increasing interdependence and the internationalization of production, and that workers should be able to take such action, provided that the initial strike they are supporting is itself lawful.”", "31. The Committee on Freedom of Association also considers this form of industrial action to be protected by international labour law ( see “ Freedom of Association ”, Digest of the decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth (revised) edition, International Labour Office, 2006) :", "“ 534. A general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful.", "...", "538. A ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association. ”", "32. In its consideration of the United Kingdom ’ s observance of Convention No. 87, the Committee of Experts has repeatedly criticised the fact that secondary strikes are illegal. The initial criticism was included in its 1989 [3] observation concerning the United Kingdom:", "“The Committee notes that the common law renders virtually all forms of strikes or other industrial action unlawful as a matter of civil law. This means that workers and unions who engage in such action are liable to be sued for damages by employers (or other parties) who suffer loss as a consequence, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). It appears to the Committee that unrestricted access to such remedies would deny workers the right to take strikes or other industrial action in order to protect and to promote their economic and social interests.", "It is most important, therefore, that workers and unions should have some measure of protection against civil liability. There has been legislative recognition of this imperative since 1906 in the form of a series of ‘ immunities ’ (or, more accurately, ‘ protections ’ ) against tort action for trade unions and their members and officials. The current version of the ‘ immunities ’ is to be found in the Trade Union and Labour Relations Act 1974.", "The scope of these protections has been narrowed in a number of respects since 1980. The Committee notes, for example, that section 15 of the 1974 Act has been amended so as to limit the right to picket to a worker ’ s own place of work or, in the case of a trade union official, the place of work of the relevant membership, whilst section 17 of the 1980 Act removes protection from ‘ secondary action ’ in the sense of action directed against an employer who is not directly a party to a given trade dispute. In addition, the definition of ‘ trade dispute ’ in section 29 of the 1974 Act has been narrowed so as to encompass only disputes between workers and their own employer, rather than disputes between ‘ employers and workers ’ or ‘ workers and workers ’ as was formerly the case.", "Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or ‘ sympathetic ’ action against parties not directly involved in a given dispute. The Committee has never expressed any decided view on the use of boycotts as an exercise of the right to strike. However, it appears to the Committee that where a boycott relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to ‘ sympathy strikes ’ :", "It would appear that more frequent recourse is being had to this form of action (i.e. sympathy strikes) because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. The Committee considers that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful.”", "33. It appears that the Committee of Experts did not take a definitive position on the ban until its 1995 observation concerning the United Kingdom, when it observed as follows:", "“The Committee draws the Government ’ s attention to paragraph 168 of its 1994 General Survey on Freedom of Association and Collective Bargaining where it indicates that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful. The lifting of immunity opens such industrial action to be actionable in tort and therefore would constitute a serious impediment to the workers ’ right to carry out sympathy strikes.”", "It has maintained this view since, stating in its most recent review of the situation (2012 observation, see Report of the Committee of Experts to the International Labour Conference, 102 nd Session, 2013, ILC.102/III(1A), pp. 195-96). ):", "“ Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA). In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the industrial relations system, it was essential for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government indication that: (1) its position remains as set out in its report for 2006 ‑ 08, that the rationale has not changed and that it therefore has no plans to change the law in this area; and (2) this issue forms part of a matter brought before the ECHR by the National Union of Rail, Maritime and Transport Workers (RMT) and that the Court has yet to consider the case. The Committee recalls the previous concern it raised that the globalization of the economy and the delocalization of work centres may have a severe impact on the right of workers ’ organizations to organize their activities in a manner so as to defend effectively their members ’ interests should lawful industrial action be too restrictively defined. In these circumstances, the Committee once again requests the Government to review sections 223 and 224 of the TULRA, in full consultation with the social partners, and to provide further information in its next report on the outcome of these consultations. ” [4]", "B. European Social Charter", "34. The right to strike is protected by Article 6, paragraph 4, of the European Social Charter, which the United Kingdom ratified on 11 July 1962. It provides as follows:", "“With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake:", "...", "[ to ] recognise:", "4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”", "1. Concerning notice requirements", "35. The European Committee on Social Rights (ECSR) has examined the British rules on strike ballots and deemed them incompatible with the proper exercise of the right to strike. In its most recent assessment of the matter (Conclusions XIX-3, 2010) it stated:", "“The Committee considered in its previous conclusions ... that the requirement to give notice to an employer of a ballot on industrial action, in addition to the strike notice that must be issued before taking action, is excessive (even the simplified requirements introduced by the Employment Relations Act (ERA)2004). As there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.”", "2. Concerning secondary action", "36. Like the ILO Committee of Experts, the ECSR has consistently criticised the situation in the United Kingdom. In its first consideration of the matter (Conclusions XIII-1, 1993) it stated:", "“Referring to the report, the Committee noted the Government ’ s observations concerning the limitations on the right to strike, imposed by the 1990 Employment Act in respect of Great Britain. In particular, it noted that while the Government emphasised the importance of protecting the right of employers to dismiss those engaged in a strike, it also emphasised that the legislation continues to:", "( i ) allow special protection for peaceful pickets at their own place of work;", "(ii) provide statutory immunity to peaceful and lawful pickets;", "(iii) provide statutory immunity for lawful trade disputes.", "The Committee also noted the recent observations of the ILO Committee of Experts recommending that the legislation be amended to conform with the principle of freedom of association in accordance with ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organise, 1948).", "Having regard to this information and having noted that there is no immunity afforded individuals in respect of:", "– secondary industrial action other than inducement in the course of peaceful picketing;", "– industrial action organised in support of employees dismissed while taking part in unofficial action;", "the Committee reiterated its previous negative conclusion for the reasons cited in the twelfth cycle of supervision.” (Conclusions XIII-I, reference period 1990-1991).”", "37. In the ECSR ’ s most recent pronouncement on the matter (Conclusions XIX-3, 2010) it said:", "“In its previous conclusions ... the Committee found that lawful collective action was limited to disputes between workers and their employer, thus preventing a union from taking action against the de facto employer if this was not the immediate employer. It furthermore noted that British courts excluded collective action concerning a future employer and future terms and conditions of employment in the context of a transfer of part of a business (University College London NHS Trust v. UNISON). The Committee therefore considered that the scope for workers to defend their interests through lawful collective action was excessively circumscribed in the United Kingdom. Given that there have been no changes to the situation, the Committee reiterates its finding that the situation is not in conformity with Article 6 § 4 of the Charter in this respect.”", "C. Charter of Fundamental Rights of the European Union", "The relevant provisions are the following:", "Article 12 Freedom of assembly and of association", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.", "... ”", "Article 28 Right of collective bargaining and action", "“ Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”", "Article 28 appears in Title IV of the Charter. As regards the United Kingdom, reference must be made to Protocol (No 30) to the Treaty on the Functioning of the European Union. It provides, in so far as relevant:", "Article 1", "“ ...", "2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”", "IV. ELEMENTS OF COMPARATIVE LAW", "38. The parties provided some elements of comparative law in relation to secondary strikes. Both referred to a comparative study on the regulation of industrial action in Europe ( Strike rules in the EU27 and beyond : A comparative overview [5], W. Warneck, European Trade Union Institute for Research, Education and Health and Safety (ETUI-REHS), 2007). According to this source, secondary action is protected or permitted, subject to varying restrictions and conditions, in the great majority of the member States of the European Union. The States that, like the United Kingdom, do not permit secondary action were identified as Austria, Luxembourg and the Netherlands.", "39. In their initial submissions, the Government sought to draw support for the situation in the United Kingdom by reference to the situation in the following States: Spain, the Netherlands, Italy, Austria, Norway, Denmark and Germany. They contended that these illustrated a broad tendency in Europe to subject secondary action to much more restrictive conditions than primary industrial action. In reply to this the applicant union provided to the Court statements from labour - law experts in a number of European countries contradicting the Government ’ s remarks. The applicant union concluded that the United Kingdom is the most restrictive among the Contracting Parties to the Convention in this respect. The Government concluded that the material demonstrated that, notwithstanding the great variety of industrial - relations systems and traditions in Europe, most States distinguished between primary and secondary action, with greater restriction on the latter. The broad right claimed by the applicant union was not supported by any real European consensus.", "40. The Court notes that comparative information is available from the monitoring mechanism of the European Social Charter [6]. As indicated above, this body has repeatedly criticised the situation in the United Kingdom, which appears to be the only State subject to criticism on this specific ground. The ECSR has also commented in recent years on the lawfulness of secondary action (sometimes using the term “sympathy” or “solidarity” action) in the following States: Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Malta, Norway, Portugal, Romania, the Slovak Republic, Spain and Sweden. With reference to the three other States identified in the Warneck study as not permitting secondary action, the Court notes that the ECSR has not criticised the situation in the Netherlands on this ground. Nor has it made any comment at all in relation to the situation in Austria or Luxembourg, neither State having accepted Article 6, paragraph 4, of the Social Charter.", "41. Some further comparative information is available from the publications and legal databases of the ILO. For example, the Committee of Experts referred to the removal from the Turkish Constitution of the prohibition on solidarity strikes ( “ Giving globalization a human face ”, § 125). It has also referred, in its review of State implementation of Convention No. 87, to the lawfulness of sympathy strikes in Albania, Georgia and Latvia. The Committee on Freedom of Association has referred to solidarity strike action in Hungary (complaint no. 2775), and noted that Russian law does not expressly provide for, or for that matter prohibit, such action (complaint no. 2251).", "Additionally, the Court notes that in Swiss law strikes are permitted if they “relate to employment relations” (Article 28 § 3 of the Constitution). According to one constitutional commentary, a strike must actually be about working conditions, and not pursue corporatist or political objectives outside of the enterprise or branch ( Droit constitutionnel suisse, vol. II, Auer, Malinverni and Hottelier, p. 723).", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "42. The applicant union contended that the two situations described above, regarding the statutory requirements on strike-ballot notice and on secondary strike action, disclosed excessive restrictions on its freedom of association under Article 11 of the Convention, which reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "43. The Government contested that argument.", "44. The Court will examine consecutively the two sets of facts presented by the applicant union and the distinct Convention issues to which each gives rise.", "A. Admissibility", "1. Strike-ballot notice", "45. Regarding the first complaint, notice of which was not given to the Government, the Court finds that it is inadmissible for the following reason. The facts of the practical example provided, as reported by the applicant union, indicate that, while the union experienced some delay in taking action to protect the interests of its members, it succeeded in holding a strike two months later. That action, by the applicant union ’ s own admission, induced EDF to improve its offer to union members, who accepted it and it took effect as a collective agreement shortly afterwards. That successful outcome cannot be disregarded. It would be artificial for the Court to consider the issuing of the injunction against the RMT in isolation from subsequent events. In sum, there is no basis here for the Court to find that the applicant union ’ s exercise of its rights under Article 11 of the Convention has been interfered with, over and above being required to comply with the procedural requirements set down in law, which it succeeded in doing. While those requirements have been the subject of criticism by other international bodies (see paragraphs 26-37 above), the Court can only examine complaints in light of their concrete facts. It considers that what the EDF situation discloses in reality is ultimately successful collective action by the applicant union on behalf of its members. This aspect of the application is therefore manifestly ill ‑ founded and so must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "2. Secondary strike action", "46. In relation to the second aspect of the application, a first issue of admissibility arises out of the fact that the applicant union has complained of the same matter to the ILO Committee on Freedom of Association. This took place after the case had been lodged with the Court, the RMT stating in its application form its intention to apply to the Committee on Freedom of Association. By a letter of 6 June 2013, the applicant union informed the Court that it had “irrevocably withdrawn” that complaint. The Government submitted that maintaining two international complaints in parallel for several years and then withdrawing one of them so as to gain a tactical advantage before the Court should be considered an abuse of the right of application. They added that Article 35 § 2 (b) of the Convention ( see paragraph 48 below) should not be construed so as to limit its effect strictly to cases where the applicant has already submitted the matter to another international procedure. In their submission, such a literal reading would defeat the purpose of the provision, since it would allow an applicant to bring a case under the Convention, and then, the very next day, bring that same case before another international body.", "47. The applicant union replied that the Government had been aware all along of the existence of the complaint to the Committee on Freedom of Association, having submitted its official reply to the ILO in July 2011. That reply had in fact referred to the existence of the present application before the Court, noting – correctly – that the RMT had given clear priority to the Convention proceedings. This was because the United Kingdom had simply ignored the criticism voiced by the relevant ILO bodies, whereas it would be bound to execute a judgment in the applicant union ’ s favour. The withdrawal of the complaint to the ILO, before any decision was taken by the Committee on Freedom of Association, meant that the prospect of a plurality of international proceedings relating to the same case had been dispelled.", "48. Article 35 § 2 (b) of the Convention provides:", "“2. The Court shall not deal with any application submitted under Article 34 that", "...", "(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”", "As established in the Court ’ s case-law, this provision is not limited to situations where an applicant has already applied to another international body regarding the same matter. The Court has held that it is not the date of such a step that is decisive, but whether a decision on the merits has already been taken by the time the Court examines the case ( see Peraldi v. France ( dec. ), no. 2096/05, 7 April 2009). That has not occurred in the present case (contrast POA and Others v. United Kingdom ( dec. ), no. 59253/11, 21 May 2013, where the applicant trade union had already submitted an identical complaint to the Committee on Freedom of Association, which had issued its decision on the merits). Furthermore, the Court does not consider that the applicant union has abused the right of application. It did not conceal from the Court at the outset its intention to utilise another international procedure ( contrast Cereceda Martin and Others v. Spain, no. 16358/90, Commission decision of 12 October 1992, Decisions and Reports 73, p. 120, at p. 133 ). Its decision to ultimately withdraw that complaint as a measure of precaution cannot be regarded as abusive within the meaning of Article 35 § 3 (a) of the Convention. The Court therefore rejects the Government ’ s preliminary objection under this head.", "49. The Government further submitted that the complaint regarding secondary strike action should be rejected as manifestly ill-founded. They considered that there had been no violation of, or even interference with, the applicant union ’ s right of freedom of association since Article 11 did not confer any right to take secondary action. Instead, it was plain from the very wording of that provision that it contemplated collective action by workers to protect their own interests. Sympathy strikes, which were no more than a show of solidarity with another group of workers, lacked the requisite nexus between collective action and the direct interests of the persons taking part in it. It did not appear from the facts adduced that the situation of the RMT members employed by Hydrex had any real bearing on the situation of their union colleagues employed by Jarvis. Had any similar threat to the latter ’ s interests materialised, it would have been open to them to take strike action, just as the Hydrex members had done.", "50. The applicant union rejected the Government ’ s reading of Article 11 § 1 as excessively narrow.", "51. The Court considers that the Government ’ s preliminary objection under this second head raises an issue of interpretation of the Convention that does not lend itself appropriately to being settled at the stage of the examination of admissibility of the application. It therefore joins the objection to the merits of the case for examination below.", "52. As it is not inadmissible on any other ground, the part of the application relating to secondary action must be declared admissible.", "B. Merits", "1. The parties ’ submissions", "(a) The applicant union", "53. The applicant union argued that the ban on secondary action had seriously limited its ability to protect its Hydrex members effectively against a drastic cut to their terms and conditions of employment. Had it been possible to organise a sympathy strike at Jarvis, it was highly probable that Hydrex would have desisted from changing matters for the worse. With so few members employed by Hydrex, the effect of the strike had been negligible. The very limited possibility of lawful picketing had made no difference. The revised offer made by management, despite being presented in a positive light by the union leadership, had been unanimously rejected by those polled as totally inadequate. The applicant union stated that a strike by its Jarvis members would have been motivated not just by solidarity with fellow union members who had been their former colleagues, but also by concern to preserve their own terms and conditions. Given the highly competitive environment in which they were employed, a decision by one company to reduce its staffing costs could well trigger similar cuts in rival companies. As the Hydrex situation illustrated, it was easy for a company to terminate the employment of workers and then rehire them on less favourable terms. The ban on secondary action had the effect of undermining trade - union action on behalf of all its members in a given sector, to the detriment of all such workers. From 1980 onwards, there had been a significant and steady decline in the role of collective agreements in the British economy, which made it all the more vital to permit trade unions to act effectively on their members ’ behalf, protecting those in positions of greater weakness. In the applicant union ’ s view it was only in the period before 1980 that the right to take secondary strike action had been adequately protected in domestic law. The government of the day had not considered it necessary to restrict it. The clear object of the 1980 and 1992 legislation had been to undermine the role and influence of trade unions, leaving workers in a weakened position. The Government ’ s claims that strike action had damaged the economy in the 1970s and 1980s lacked substantiation, and were moreover exaggerated and inaccurate. Despite the lack of any real evidence, trade unions had been unjustly blamed for Britain ’ s economic woes for over thirty years, and were for this reason subject to very restrictive legislation.", "54. Replying to the Government ’ s argument that secondary action, by its nature, had the effect of embroiling other employers in industrial disputes to which they were not party and over which they had no control, the applicant union submitted that such considerations were irrelevant to the facts of this case. It would only have called out the Jarvis workforce, which would have been sufficient to induce Hydrex to leave existing terms and conditions intact. In any event, the applicant union rejected as generalisations the Government ’ s arguments regarding the disruptive effects of secondary strikes and the risks these posed to the Convention rights of third parties (interference with businesses, threats to livelihoods, and even – in extreme situations – to life and health). Sufficient safeguards existed elsewhere in the law, including the criminal law. There was thus no justification for a complete ban on secondary action. A less restrictive regime could surely be devised, as required by the principle of proportionality. The possibility of organising peaceful pickets made no real difference, as shown by the facts of this case; it did not mitigate the disproportionate effects of the ban on secondary action.", "55. Citing several of this Court ’ s judgments and decisions in trade - union cases, the applicant union argued that the taking of strike action must now be regarded in its own right as an essential element of freedom of association that States must respect. Alternatively, the Court having identified collective bargaining as an essential element of trade - union rights, it must logically follow that the right to strike was equally essential, since without the threat of industrial action, collective bargaining would be deprived of any effectiveness and be little more than “collective begging”. The ban on secondary action thus impaired the essence of freedom of association. This could be accepted only upon proof of some truly compelling justification. The State must meet a stringent test of necessity, with only a limited margin of appreciation, subject to the very rigorous scrutiny of the Court.", "56. The applicant union urged the Court to reject any narrow concept of trade - union freedom of association that would be limited to the protection of the strictly personal interests of individual workers. Such an interpretation would impoverish the substance of Article 11. In the many cases it had decided involving strikes, the Court had never attached any significance to what was at stake for the workers in the dispute. It was entirely legitimate for unions to pursue broader, common objectives. Trade unionism was fundamentally about solidarity among union members and among workers more generally, and the wording of Article 11 of the Convention should be construed in keeping with this. Workers should be able to take industrial action to protect those who may be prevented from doing so, or who, on their own, lack the collective strength to defend their interests at work. This broad concept of freedom of association was espoused by the two most eminent international bodies in the field of trade - union rights, the ILO Committee of Experts and the ECSR. Both had repeatedly criticised the United Kingdom for its ban on secondary action, which they deemed to be incompatible with the relevant international legal standards. These had been interpreted to mean that the only acceptable condition that could be attached to secondary action was that the primary dispute itself be lawful. The applicant union urged the Court to adopt the same position. If that were overbroad, a criterion of proximity might be envisaged, that is to say, a requirement of a link of some sort between workers engaged in primary action and those striking in sympathy with them. Such a link was present here, since the group of workers concerned had originally been Jarvis employees and continued to perform the same work at the same sites after the transfer. A worsening in their terms and conditions could have had negative consequences for all workers in that sector. In the modern economy, the workforce was becoming increasingly fragmented through the transfer of undertakings or part of them, the creation of complex corporate structures, agency work, privatisation, the contracting-out of services leading to further sub-contracting, non-genuine self-employment, and so forth. This led to a situation in which persons performing the same job at the same place of work could have different employers, meaning that they could not legally support one another in time of industrial conflict.", "57. With its outright prohibition on secondary action, the United Kingdom was part of a very small minority of European countries adopting such an extreme position. The approach adopted by the great majority of European States, notwithstanding the differences between them in the field of industrial relations generally, was a permissive one. This represented, so the applicant union submitted, the consensus in Europe on the issue.", "(b) The Government", "58. The Government did not accept the applicant union ’ s account of the Hydrex situation. They noted that, as required by domestic law, the group of ex-Jarvis employees had continued to enjoy their previous terms and conditions of employment after the transfer, and this had continued for a period of two years. At that point, as shown by the documents submitted by the applicant union, the company ’ s financial difficulties led it to propose new, less advantageous contracts to the persons concerned. The applicant union defended their interests by making representations and ultimately through strike action that led to an improved offer. While that offer had been rejected, and the applicant union now described it as inadequate, it had in fact been endorsed at the time by the RMT General Secretary, who had considered the strike a success and urged union members to vote in favour of acceptance.", "59. As for the RMT members employed by the Jarvis group, the Government noted that, contrary to the applicant union ’ s speculations, there was no evidence of any move by the employer to reduce their terms and conditions as Hydrex had done. The two companies were unrelated. Had there been any move to do so, it would have been open to the applicant union to organise a strike by Jarvis employees in defence of their interests.", "60. The Government contended that the right to strike was adequately protected in domestic law. As long as industrial action was organised in compliance with the relevant statutory provisions, the individual worker was protected against dismissal and the trade union enjoyed immunity in tort. The domestic courts had held that the statutory regime was compatible with Article 11, as interpreted by this Court ( see Metrobus Ltd, cited in paragraph 11 above). The Government clarified that Parliament had taken care to ensure that the general ban on secondary action did not curtail primary action – secondary action would be lawful if it also constituted primary action in relation to another dispute (section 224(5) of the 1992 Act). Moreover, persons taking part in industrial action were permitted to mount a peaceful picket at or near their place of work with a view to peacefully persuading others to withdraw their labour.", "61. According to the Government, the present statutory framework came about as a reaction to the widespread disruptions caused to the British economy by widespread secondary action in the 1970s and 1980s. Prior to the enactment of the Employment Act 1980, trade unions had enjoyed a very broad power to organise secondary action, with highly detrimental consequences for businesses and their workforces, as well as for the general public. A dispute in one part of the economy could rapidly spill over into others, embroiling third parties in it who had no stake in the conflict and no real means of resolving it. Just how permissive the legislation in force at that time was became fully apparent in the McShane case (see paragraph 22 above). The government of the day had determined that this should be restricted, and the parliamentary debates contained many actual examples of the damage and disruption wrought by unrestricted secondary strikes. Ten years later, the government considered that even in its more restricted form secondary action had the potential to damage the economy, notably by deterring multinational companies from developing their operations in the United Kingdom. Parliament had accordingly introduced the current ban. Although the Labour Party, then in opposition, had opposed the move, it had never sought to reverse it during its thirteen -year tenure in government. Nor was the current coalition government minded to revisit the issue. This indicated the very broad political acceptance in the United Kingdom of the current balance struck regarding the right to strike.", "62. The Government accepted that, in light of the recent case-law of this Court, the right under Article 11 to join a trade union normally implied the ability to strike. But this was by no means an absolute right – it could be subject to conditions and restrictions in accordance with Article 11 § 2 that were within the State ’ s margin of appreciation. Nor did the Government consider secondary action an essential element of freedom of association, finding no support for such a proposition in the relevant case-law of the Court, none of which concerned secondary action.", "63. Rather, their reading of that case-law was that there had to be a nexus between the employees ’ interests and the action taken by their trade union on their behalf, be it collective bargaining or strike action. This was absent in the Hydrex situation. Secondary action by Jarvis employees in support of their former colleagues would have been on the basis of solidarity only – such action would not have had any real connection to their own interests via-à-vis Jarvis, with whom they had no dispute. Accordingly, the restriction on secondary action did not impinge on any essential element of freedom of association. There was thus no interference with the right set out in Article 11 § 1.", "64. In the view of the Government, the manner in which secondary action was regulated by law was wholly within the United Kingdom ’ s margin of appreciation. As the Court had recognised in its case-law, the margin in this area must be a wide one in light of the sensitive social and political considerations involved and the very significant differences between the national industrial - relations frameworks in Europe. In any event, the situation should be examined in light of Article 11 as a whole, which called for a balancing exercise between the effects of the restriction on the applicant union ’ s rights and the potential effects of secondary action on third parties. Regarding the former element, the Government pointed out that the ban on secondary action did not interfere with the ability of a trade union to take primary action in defence of its members ’ own interests. Against that must be set the far-reaching and uncontrollable effects that secondary action could have on the rights and freedoms of others, including their rights under the Convention, specifically under Article 1 of Protocol No. 1 and, it could not be excluded, under Article 2. Where the balancing exercise involved competing Convention rights, the case-law of the Court allowed a broad margin of appreciation for the national authorities. In the view of the Government, the balance struck in the United Kingdom was a defensible one.", "65. An additional consideration was the highly decentralised industrial - relations structure in the United Kingdom, which stood in contrast to the situation in many other European States. The Government considered that this had amplified the disruptive effect of secondary action in the 1970s, and would do so again were the Court to find the situation incompatible with the requirements of the Convention. It should also be borne in mind that – again in contrast to other national systems in Europe – trade unions already had broad freedom to take strike action. In the British system there was no concept of a “peace clause”, that is a binding undertaking not to take industrial action during the currency of a collective agreement. Nor was there any rule of proportionality to limit the intensity or extent of a strike, which was entirely a matter for trade unions to determine. Responding to the applicant union ’ s point about the decline of collective bargaining over the past thirty years, the Government indicated its neutrality on the issue – whether workers and employers wished to engage collectively or otherwise was a matter for them to decide. The Government disputed that the decline was due to the ban on secondary action or any other restriction referred to by the applicant union. There were other factors at work, such as the privatisation of many former public enterprises whose workforces had traditionally been highly unionised, and the marked development of labour law, conferring many more rights on workers that could be enforced through the courts rather than through the intervention of trade unions.", "66. The restriction had been in place so long that, in the Government ’ s view, management and labour had adapted to it, even if on the trade - union side there were emerging signs of an increasingly confrontational attitude towards the Government ’ s economic strategy in the current difficult economic conditions. The country ’ s recovery would be imperilled if the applicant union succeeded and the Government were required to repeal the ban on secondary action.", "67. Outside of the rules on strike action, it remained open to trade unions to publicise their grievances by exercising the broad right to freedom of assembly. The Government gave the example of demonstrations staged by electricians in a number of public places to inform the public of an ongoing industrial dispute.", "68. The Government rejected the applicant union ’ s suggestion that the outright ban on secondary action might be replaced with a restriction based on some concept of proximity or remoteness. These were inherently vague concepts and any rule formulated in such terms would inevitably generate legal uncertainty and so could be expected to give rise to litigation. In reality, what the applicant union sought was the right to organise strike action purely on the ground of solidarity between workers in different companies, the only condition being that the primary strike be lawful. This was a plea for no restriction at all on secondary action, eliminating any balancing exercise. No such indiscriminate right could be derived from Article 11. While the applicant union asserted that the Hydrex situation did not present the risk of a broad overspill into other sectors, this was not a relevant point – Parliament had decided against permitting any case-by-case consideration but had preferred a clear and uniform rule. Accordingly, the ban was either in conformity with the Convention or it was not. In the latter eventuality, the consequence would be to open up a very broad right to take secondary action, with all of the potential ramifications of this for society.", "69. The above analysis was not, in the Government ’ s view, affected by the provisions of other international texts referred to by the applicant union. Regarding Article 6 § 4 of the Social Charter, the Government considered that the ECSR regarded the right to strike as integral to the process of collective bargaining between trade unions and employers in cases of conflicts of interest between them. This corresponded to primary industrial action, where workers ’ interests were directly engaged, not to secondary. The Government further observed that the ECSR was not a judicial or quasi-judicial organ, but simply an independent body that submitted its conclusions to the Committee of Ministers annually. It was the latter that had the power to adopt recommendations to States in relation to any instance of non-compliance with the Charter. As far as the ban on secondary action was concerned, the Committee of Ministers had never taken a stance. In any event, the basis for the ECSR ’ s critique of the United Kingdom in this respect was that the ban could have the effect of preventing workers from striking against the “real” or de facto employer, where this is a distinct entity from the direct employer. This was also the basis for the criticism voiced by the ILO Committee of Experts, but it had no relevance to the Hydrex situation, which formed the factual basis for the Court ’ s examination of the issue. In any event, that Committee was not a judicial or quasi-judicial body either, and its interpretation of ILO Conventions was not definitive. Rather, its role was to provide impartial and technical evaluation of the state of application of international labour standards. In fact, the question of a right to strike was currently the cause of sharp controversy within the ILO, as part of which the status of the interpretations given by the Committee of Experts had been called into question. In addition, the Government perceived a divergence of view between the Committee of Experts and the Committee on Freedom of Association, the latter regarding the right to strike as applying only to the defence of one ’ s economic interests. It was noteworthy that the ILO Governing Body had refrained from taking any position on the situation. The Government thus did not accept that the United Kingdom was in breach of its obligations under Convention No. 87.", "70. Commenting on the comparative information before the Court, the Government noted that the United Kingdom was not alone in banning or significantly restricting secondary action. Given the great diversity of the different industrial - relations systems in Europe, any superficial comparison on this precise point would be of limited assistance. Contrary to what the applicant union asserted, that diversity pleaded in favour of a wide margin of appreciation.", "(c) The third parties", "( i ) ETUC/TUC", "71. The two organisations stated their view that the right to strike is absolutely essential to the functioning of trade unionism in free societies, and that a total ban on secondary action is unacceptable. They referred to a series of international treaties that expressly recognise the right to strike, or have been authoritatively interpreted as protecting that right. In the jurisprudence of the ILO supervisory bodies, the right to strike was widely applied and strongly protected. There could be restrictions, but these must not be such as to result in practice in an excessive limitation of the right to strike. Sympathy strikes had to be permitted. This was also clearly established in the jurisprudence of the ECSR. The complete ban on secondary action meant that workers in dispute could not in any circumstances call on members of their own union for support, or of any other trade union with which their own was associated at a higher level ( for example, a federation or confederation). This diminished the very purpose of joining a trade union, and undermined the purpose of this dimension of Article 11 of the Convention, which reflected the principle that workers should be free to combine for mutual support in times of crisis. The ban was a relatively recent innovation, coming in more than eight decades after the foundational statute in British industrial relations, the Trade Disputes Act of 1906. The Government had failed to justify the restriction before the ILO Committee of Experts. In particular, that Committee had not accepted the Government ’ s argument that the ban was made necessary by the decentralised nature of the British system of industrial relations. On the contrary, the Committee considered that this made it more important for workers to be able to take action against employers who are easily able to undermine union action by complex corporate structures, by transferring work or by hiving off companies. Workers in the United Kingdom were forbidden to take action in support of colleagues employed by another employer forming part of the same group of companies, even though they stood to be affected by the outcome of the dispute. That could not be right. The two organisations expressed their dismay that the Government was ignoring the need to amend the law and refusing to bring it up to the level of minimum international standards. The centre of gravity among European States appeared to lie somewhere between the total prohibition of such action and no restriction at all. The total ban in force in the United Kingdom was an unjustifiable restraint on the right to freedom of association, which could not be justified in all circumstances to protect the rights and freedoms of others.", "(ii) Liberty", "72. Liberty considered that the ban on secondary action was an unjustified interference with the rights of workers and their trade unions. In many situations, workers were not in fact able to exercise their right under Article 11 to take industrial action; for example, those employed in very small establishments, or working for entities where terms and conditions are effectively determined by a third party such as a client, or those with insecure employment status. The traditional set-up in which all the members of the same workforce had the same employer no longer corresponded to the reality of a large and growing category of workers. It had been estimated that over three million jobs were now outsourced in the British economy, a great many of these from the public sector, where union density had traditionally been highest. This fragmentation of the traditional labour market had implications for labour law generally, and made it increasingly difficult for trade unions to continue to defend the interests of their members, who were increasingly dispersed among different economic operators. In this context, the effect of the ban on secondary strikes was to greatly reduce the value of trade - union membership, as it prevented the union from mobilising broadly in solidarity with and so as to protect the interests of members in dispute with their direct employer. The ban made it easy for companies to undercut the influence of trade unions by reconfiguring their organisations. It was clearly established in domestic case-law that the corporate veil could not be lifted in such circumstances. This deprived trade unions of the possibility of taking effective action against those with real decision-making power or control. Before 1980, the scope for secondary strikes was very broad, as illustrated by the House of Lords in N.W.L. Ltd v. Woods ([1979] 1 WLR 1294), which recognised the lawfulness of industrial action by dock workers taken in solidarity with foreign seafarers working for very little pay on flagged-out vessels. The ban denied some workers their only source of effective union support in the form of financial pressure exerted on the employer ’ s commercial relationships. It also hindered freedom of association in small firms ( fewer than twenty-one employees), which were excluded from the statutory procedure for recognising trade unions. If such an employer refused to recognise a trade union on a voluntary basis, the ban on secondary action made it impossible for fellow members in other workplaces to take industrial action so as to induce the employer to accept trade - union representation.", "73. Liberty argued that this Court had consistently protected the substance of workers ’ freedom of association, and had never accorded any significance to whether a strike was of the primary or any other type. While the right to take secondary action could be restricted in accordance with the terms of Article 11 § 2, and balanced against competing rights and freedoms, this could not go so far as to impair the very essence of the right.", "74. The Government replied to Liberty ’ s observations, observing that the latter addressed broader, background issues that were not relevant to the facts of the present case. While accepting that the structure of the labour market had evolved over the past two decades, the Government disagreed that this had generally hindered the enjoyment by the workers concerned of the benefits of trade - union rights. Practice actually showed that trade unions were capable of acting effectively in such circumstances – the three examples referred to by Liberty were in fact instances of the successful resolution of an industrial dispute via trade - union involvement (the three examples were: one involving airline catering staff, one concerning bus drivers in London during the 2012 Olympics, and one involving fuel lorry drivers). The charge that workers were prevented from taking action against the party that really determines their terms and conditions was no more than a hypothesis – no actual examples had been given. Nor had there been any decline in the number of days lost to strike action each year for the past twenty years, which tended to refute Liberty ’ s view that domestic law had increasingly restricted trade - union freedom. In this respect, the United Kingdom was close to the European Union and Organisation for Economic Co-operation and Development average. As to the assertion that the threshold of twenty-one employees represented a loophole that employers could easily exploit in order to avoid having to recognise a trade union, the Government did not see its relevance to the facts of the case. Even so, there were safeguards in place to prevent employers from circumventing their statutory duty. Only genuine small firms were excluded, and that was for valid policy reasons. Finally, the Government submitted that there was no explicit support in the Court ’ s case-law for the proposition that the right to take secondary action is an essential element of freedom of association, or that the ban could not be justified under Article 11 § 2.", "2. The Court ’ s assessment", "(a) Applicability of Article 11", "75. The Court must first determine whether, as the applicant union argued, secondary action comes within the scope of Article 11 of the Convention or, as the Government argued, it does not. The question is a novel one, not having arisen directly in any previous case.", "76. What the Government propose is a literal reading of the second clause of the first paragraph of Article 11. Although it is possible to derive such a meaning from the language of the text taken on its own, the Court would observe that, as provided in Article 31 § 1 of the Vienna Convention on the Law of Treaties, the provisions of a treaty are to be interpreted in accordance with their ordinary meaning, in their context and in the light of the treaty ’ s object and purpose. Furthermore, it has often stated that the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention of “any relevant rules of international law applicable in relations between the parties”, and in particular the rules concerning the international protection of human rights (see X v. Latvia [GC], no. 27853/09, § 92, ECHR 2013, with further references therein). In this regard, it is clear from the passages set out above ( see paragraphs 26-37) that secondary action is recognised and protected as part of trade - union freedom under ILO Convention No. 87 and the European Social Charter. Although the Government have put a narrower construction on the positions adopted by the supervisory bodies that operate under these two instruments, these bodies have criticised the United Kingdom ’ s ban on secondary action because of a perceived risk of abuse by employers, and have illustrated this with some examples. The Government further queried the authority, for the purposes of the Convention, to be attributed to the interpretative pronouncements of the expert bodies tasked with supervising compliance with these specialised international standards. The Court will consider this later in its analysis. For now it suffices to refer to the following passage from the judgment in Demir and Baykara v.Turkey ( [GC], no. 34503/97, § 85, ECHR 2008 ):", "“The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. ... ”", "It would be inconsistent with this method for the Court to adopt in relation to Article 11 an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law. In addition, such an understanding of trade - union freedom finds further support in the practice of many European States that have long accepted secondary strikes as a lawful form of trade - union action.", "77. It may well be that, by its nature, secondary industrial action constitutes an accessory rather than a core aspect of trade - union freedom, a point to which the Court will revert in the next stage of its analysis. Nonetheless, the taking of secondary industrial action by a trade union, including strike action, against one employer in order to further a dispute in which the union ’ s members are engaged with another employer must be regarded as part of trade - union activity covered by Article 11.", "78. The Court therefore concludes that the applicant union ’ s wish to organise secondary action in support of the Hydrex employees must be seen as a wish to exercise, free of a restriction imposed by national law, its right to freedom of association within the meaning of Article 11 § 1 of the Convention. It follows that the statutory ban on secondary action as it operated in the example relied on by the applicant union constitutes an interference with its rights under this provision. To be compatible with paragraph 2 of Article 11, such interference must be shown to be “prescribed by law”, to pursue a legitimate aim, and to be “necessary in a democratic society” to achieve those aims.", "(b) Lawfulness and legitimacy of the interference", "79. There was no dispute between the parties that the interference was prescribed by law. The Court agrees.", "80. As to the aim of the interference, the applicant union argued that it found no legitimation in Article 11 § 2. It clearly did not concern national security or public safety, the prevention of disorder or crime, or the protection of health or morals. As for the remaining aim recognised as legitimate, namely the “protection of the rights and freedoms of others”, the applicant union ’ s argument was that it would be illogical to restrict the right to strike on account of the impact of such action on the employer. The very purpose of strike action is to have a strong impact on the employer ’ s position, to induce the employer to meet the demands of labour. It would be erroneous to allow this to serve as a justification for curbing the right to strike. The applicant union therefore invited the Court to reconsider the reasoning followed in this regard in UNISON v. the United Kingdom ( ( dec. ), no. 53574/99, ECHR 2002 ‑ I), in which the Court had accepted that the restriction on strike action concerned the “rights of others”, referring to the employer. The economic interests of an employer should not be permitted to take precedence over the human rights of employees. Such reasoning contradicted the approach of the ECSR, for example, which did not accept any principle of proportionality between the taking of strike action and the consequences of this on the employer ’ s interests. The applicant union further argued that the UNISON decision sat ill with the earlier judgment of the Court in Gustafsson v. Sweden (25 April 1996, Reports of Judgments and Decisions 1996 ‑ II). There the Court had not entertained the applicant ’ s complaint that the trade - union boycott of his business was an interference with his rights under Article 1 of Protocol No. 1. Nor had it accepted that the impact on his business, although it caused considerable economic damage, gave rise to any positive obligation on the State to come to his aid. The Court should instead take a stringent approach as it had done in two cases involving sanctions against public-sector employees who participated in a one-day strike ( Karaçay v. Turkey, no. 6615/03, 27 March 2007 and Kaya and Seyhan v. Turkey, no. 30946/04, 15 September 2009). In each case the Court had not been persuaded that the interferences in question pursued legitimate aims, although it ultimately had left that point open in view of its finding that the interferences complained of were not “necessary in a democratic society”.", "81. The Government contended that the ban sought to protect the rights and freedoms of others, above all of persons not connected to the industrial dispute. In light of the potentially far-reaching and uncontrollable effects that secondary action could have on third parties, protecting the latter was clearly a legitimate objective that Parliament had pursued when it introduced the ban. The Government added that it could be readily envisaged how secondary action could threaten the enjoyment of rights protected by the Convention, such as the right to make one ’ s living.", "82. The Court considers that the present case is distinguishable from the decision in UNISON, cited above. The latter concerned primary strike action, the complaint being that the applicant trade union had been prevented from taking industrial action in defence of its members ’ future interests, in the context of the impending privatisation of hospital services. During the domestic proceedings the Court of Appeal held that the impact of such a strike on members of the public was irrelevant to the legal issues arising. This Court took the same view, and for this reason the aim of “protection of the rights and freedoms of others” was taken in the circumstances as referring just to the employer ’ s rights. The ground for distinguishing the present case is the fact that it concerns secondary action. As the Government have argued, by its nature secondary action may well have much broader ramifications than primary action. It has the potential to impinge upon the rights of persons not party to the industrial dispute, to cause broad disruption within the economy and to affect the delivery of services to the public. Accordingly, the Court is satisfied that in banning secondary action, Parliament pursued the legitimate aim of protecting the rights and freedoms of others, not limited to the employer side in an industrial dispute.", "(c) Necessity in a democratic society", "83. It remains to be determined whether the statutory ban on secondary industrial action, in as much as it affected the ability of the applicant union to protect the interests of its Hydrex members, can be regarded as being “necessary in a democratic society”. To be so considered, it must be shown that the interference complained of corresponded to a “pressing social need”, that the reasons given by the national authorities to justify it were relevant and sufficient and that it was proportionate to the legitimate aim pursued.", "84. The Court will first consider the applicant union ’ s argument that the right to take strike action must be regarded as an essential element of trade - union freedom under Article 11, so that to restrict it would be to impair the very essence of freedom of association. It observes that it has already decided a number of cases in which restrictions on industrial action were found to have given rise to violations of Article 11 (see, for example, Karaçay, cited above; Dilek and Others v. Turkey, nos. 74611/01, 26876/02 and 27628/02, 17 July 2007; Urcan and Others v. Turkey, nos. 23018/04 and 10 others, 17 July 2008; and Enerji Yapı-Yol Sen v. Turkey, no. 68959/01, 21 April 2009). The applicant union placed great emphasis on the last of these judgments, in which the term “indispensable corollary” was used in relation to the right to strike, linking it to the right to organise ( see Enerji Yapı-Yol Sen, cited above, § 24). It should, however, be noted that the judgment was here adverting to the position adopted by the supervisory bodies of the ILO rather than evolving the interpretation of Article 11 by conferring a privileged status on the right to strike. More generally, what the above-mentioned cases illustrate is that strike action is clearly protected by Article 11. The Court does not therefore discern any need in the present case to determine whether the taking of industrial action should now be accorded the status of an essential element of the Article 11 guarantee.", "85. What the circumstances of this case show is that the applicant union in fact exercised two of the elements of freedom of association that have been identified as essential, namely, the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and the right to engage in collective bargaining. The strike by its Hydrex members was part of that exercise, and while it did not achieve its aim, it was not in vain either since it led the company to revise its offer, which the applicant union then commended to its members. Although the Government criticised the applicant union for supporting the revised offer at the time and then reversing its stance in the present proceedings, the Court recognises that the union was bound to respect its members ’ negative vote. Yet the fact that the process of collective bargaining and industrial action, including strike action against the employer of the union members who were the subject of the dispute, did not lead to the outcome desired by the applicant union and its members does not mean that the exercise of their Article 11 rights was illusory. The right to collective bargaining has not been interpreted as including a “right” to a collective agreement (see, in this respect, Demir and Baykara, cited above, § 158, where the Court observed that the absence of any obligation on the authorities to actually enter into a collective agreement was not part of the case). Nor does the right to strike imply a right to prevail. As the Court has often stated, what the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members ’ interests ( ibid., § 141, and, more recently Sindicatul “ Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 34, ECHR 2013). This the applicant union and its members involved in the dispute were largely able to do in the present case.", "86. In previous trade - union cases, the Court has stated that regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole. Since achieving a proper balance between the interests of labour and management involves sensitive social and political issues, the Contracting States must be afforded a margin of appreciation as to how trade-union freedom and protection of the occupational interests of union members may be secured. In its most recent restatement of this point the Grand Chamber, referring to the high degree of divergence it observed between the domestic systems in this field, considered that the margin should be a wide one ( see Sindicatul “ Păstorul cel Bun”, cited above, § 133 ). The applicant union relied heavily on Demir and Baykara (cited above, § 119 ) in which the Court considered that the respondent State should be allowed only a limited margin. The Court would point out, however, that the passage in question appears in the part of the judgment examining a very far-reaching interference with freedom of association, one that intruded into its inner core, namely the dissolution of a trade union. It is not to be understood as narrowing decisively and definitively the domestic authorities ’ margin of appreciation in relation to regulating, through normal democratic processes, the exercise of trade - union freedom within the social and economic framework of the country concerned. The breadth of the margin will still depend on the factors that the Court in its case-law has identified as relevant, including the nature and extent of the restriction on the trade - union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right. The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the apposite international instruments ( see Demir and Baykara, cited above, § 85).", "87. If a legislative restriction strikes at the core of trade - union activity, a lesser margin of appreciation is to be recognised to the national legislature and more is required to justify the proportionality of the resultant interference, in the general interest, with the exercise of trade - union freedom. Conversely, if it is not the core but a secondary or accessory aspect of trade - union activity that is affected, the margin is wider and the interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade - union freedom are concerned.", "88. As to the nature and extent of the interference suffered in the present case by the applicant union in the exercise of its trade - union freedom, the Court considers that it was not as invasive as the applicant union would have it. What the facts of the case reveal is that it held a strike, albeit on a limited scale and with limited results. It was its wish to escalate the strike, through the threatened or actual involvement of hundreds of its members at Jarvis, another, separate, company not at all involved in the trade dispute in question, that was frustrated. The Court has noted the applicant union ’ s conviction that secondary action would have won the day. Inevitably, that can only be a matter of speculation – including as to the result of any ballot on the subject – since that course of action was clearly ruled out. It cannot be said that the effect of the ban on secondary action struck at the very substance of the applicant union ’ s freedom of association. On this ground the case is to be distinguished from those referred to in paragraph 84 above, which all concerned restrictions on “primary” or direct industrial action by public-sector employees; and the margin of appreciation to be recognised to the national authorities is the wider one available in relation to the regulation, in the public interest, of the secondary aspects of trade - union activity.", "89. As for the object of the interference in issue in the present case, the extracts from the debates in Parliament preceding the passage of the Employment Act 1980 make clear the legislative intention to strike a new balance in industrial relations, in the interests of the broader economy, by curbing what was a very broad right to take secondary action. A decade later, the government of the day considered that even in its more limited form secondary action posed a threat to the economy and to inward investment in the country ’ s economic activity. As a matter of policy it considered that restricting industrial action to primary strikes would achieve a more acceptable balance within the British economy. The Government have reiterated that position in the present proceedings. That assessment was sharply contested at the time by the opposition in Parliament, and is rejected by the applicant union as grounded in animus towards trade unions rather than any clear evidence of direct damage to the economy. Yet the subject matter in this case is certainly related to the social and economic strategy of the respondent State. In this regard the Court has usually allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected Parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and which legislative measures are best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy (see, among many authorities, Stummer v. Austria [GC], no. 37452/02, § 89, ECHR 2011 ).", "90. There are, it is true, factors going in another direction as regards the range of permissible choices available to the United Kingdom legislature.", "91. The first of these is the extent to which it can be said that there is common ground among European States as regards secondary action. The comparative information adduced before the Court reveals a spectrum of national positions, ranging from a broadly permissive stance in countries such as Greece, Finland, Norway and Sweden, to those that do not recognise or permit it. The other States mentioned above ( see paragraphs 38-41) are located between these two outer points. The Government played down the significance of the comparative perspective, emphasising the deep structural and cultural differences among European States in the field of industrial relations. The Court acknowledges that diversity, which it has recognised in other cases concerning the rights of trade unions ( see, for example, Sindicatul “ Păstorul cel Bun”, cited above, § 133, and Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006 ‑ I). It is nevertheless clear that, with its outright ban on secondary action, the respondent State stands at one end of the comparative spectrum, being one of a small group of European States to adopt such a categorical stance on the matter. The varied comparative picture, and the position of the United Kingdom within it, do not in themselves, however, mean that the domestic authorities have overstepped their legitimate margin of appreciation in regulating this aspect of trade - union activity.", "92. Secondly, a prominent feature of this case is the wealth of international-law material. The United Kingdom banned secondary action more than two decades ago and throughout this time has been subject to critical comments by the ILO Committee of Experts and the ECSR. The applicant union prayed these materials in aid. The Government did not consider the particular criticisms made to be relevant to the factual situation denounced in the present case, or otherwise significant. The Court will now examine this point.", "93. The Government disputed the relevance to this case of the two bodies ’ criticisms in light of the manner in which they were formulated, as they contemplated quite different potential situations to the one impugned by the applicant union (see paragraphs 33 and 37 above).", "94. The Government did not regard the ECSR ’ s assessment as an authoritative source of law, since, despite the independence and expertise of its members, the ECSR did not possess judicial or quasi-judicial status. Its role was to report to the Committee of Ministers. The Court observes that the ECSR ’ s competence is stipulated in the Protocol amending the European Social Charter (also known as the “Turin Protocol”, Council of Europe Treaty Series No. 142), namely to “assess from a legal standpoint the compliance of national law and practice with the obligations arising from the Charter”. It is true that this Protocol has not come into force as several States Parties to the Charter, including the United Kingdom, have not ratified it. Yet the interpretative value of the ECSR appears to be generally accepted by States and by the Committee of Ministers. It is certainly accepted by the Court, which has repeatedly had regard to the ECSR ’ s interpretation of the Charter and its assessment of State compliance with its various provisions ( see, for example, Demir and Baykara, cited above; see also Tüm Haber Sen and Çınar v. Turkey, no. 28602/95, § 39, ECHR 2006 ‑ II, a trade - union case in which the Court described the ECSR as a “particularly qualified” body in this domain).", "95. As for the absence of any recommendation by the Committee of Ministers to the United Kingdom in relation to this issue, the Court notes first of all that the role of the Committee of Ministers under the Turin Protocol is to address recommendations to States on a selective basis, guided by social, economic and other policy considerations. Its role is not to endorse the conclusions of the ECSR. Secondly, the Court notes that the Governmental Committee of the European Social Charter has taken a first step in the direction of a Committee of Ministers ’ recommendation on the issue of secondary action, by adopting a warning to the United Kingdom that “urged the Government to take all adequate steps to bring the situation into conformity with the Charter” (see its Report concerning Conclusions XIX-3 (2010), T- SG( 2012)1 _ final, at p. 59).", "96. With respect to the ILO Committee of Experts, the Government made a similar observation – that body was not formally competent to give authoritative interpretations to ILO Conventions. It drew the Court ’ s attention to an ongoing disagreement within the ILO precisely regarding the legal status or even existence of a right to strike. The Committee of Experts had recently recognised the limits of its role, stating that “[its] opinions and recommendations are not binding within the ILO supervisory process and are not binding outside the ILO unless an international instrument expressly establishes them as such or the Supreme Court of a country so decides of its own volition” (from the foreword to “ Collective Bargaining in the Public Service: A way forward ”, a report of the ILO Committee of Experts to the 102nd session of the International Labour Conference, 2013). This text goes on to describe the Committee of Expert ’ s interpretations as “soft law”. The foreword concludes (§ 8):", "“As regards the interpretation of ILO Conventions and the role of the International Court of Justice in this area, the Committee has pointed out since 1990 that its terms of reference do not enable it to give definitive interpretations of Conventions, competence to do so being vested in the International Court of Justice by article 37 of the Constitution of the ILO. It has stated, nevertheless, that in order to carry out its function of determining whether the requirements of Conventions are being respected, the Committee has to consider the content and meaning of the provisions of Conventions, to determine their legal scope, and where appropriate to express its views on these matters. The Committee has consequently considered that, in so far as its views are not contradicted by the International Court of Justice, they should be considered as valid and generally recognized. The Committee considers the acceptance of these considerations to be indispensable to maintaining the principle of legality and, consequently, to the certainty of law required for the proper functioning of the International Labour Organization.”", "97. The Court does not consider that this clarification requires it to reconsider this body ’ s role as a point of reference and guidance for the interpretation of certain provisions of the Convention (see, more generally, Demir and Baykara, cited above, §§ 65-86). While the Government referred to disagreements voiced at the 101 st International Labour Conference, 2012, it appears from the records of that meeting that the disagreement originated with and was confined to the employer group (Provisional Record of the 101 st Session of the International Labour Conference, No. 19 (Rev.), §§ 82 ‑ 90). The governments who took the floor during that discussion were reported as saying that the right to strike was “well established and widely accepted as a fundamental right”. The representative of the government of Norway added that her country fully accepted the Committee of Experts ’ interpretation that the right to strike was protected under Convention No. 87. In any event, the respondent Government accepted in the present proceedings that the right afforded under Article 11 to join a trade union normally implied the ability to strike (see paragraph 62 above).", "98. The foregoing analysis of the interpretative opinions emitted by the competent bodies set up under the most relevant international instruments mirrors the conclusion reached on the comparative material before the Court, to wit that with its outright ban on secondary industrial action, the respondent State finds itself at the most restrictive end of a spectrum of national regulatory approaches on this point and is out of line with a discernible international trend calling for a less restrictive approach. The significance that such a conclusion may have for the Court ’ s assessment in a given case was explained in Demir and Baykara ( cited above, § 85) in the following terms :", "“ ... The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.”", "The Grand Chamber ’ s statement reflects the distinct character of the Court ’ s review compared with that of the supervisory procedures of the ILO and the European Social Charter. The specialised international monitoring bodies operating under those procedures have a different standpoint, shown in the more general terms used to analyse the ban on secondary action (see paragraphs 33 and 37 above). In contrast, it is not the Court ’ s task to review the relevant domestic law in the abstract, but to determine whether the manner in which it actually affected the applicant infringed the latter ’ s rights under Article 11 of the Convention (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 116, ECHR 2012; see also Kart v. Turkey [GC], no. 8917/05, §§ 85-87, ECHR 2009 ). The applicant union as well as the third parties dwelt on the possible effect of the ban in various hypothetical scenarios, which could go as far as to exclude any form of industrial action at all if the workers directly concerned were not in a position to take primary action, thereby, unlike in the present case, striking at the very substance of trade - union freedom. They also considered that the ban could make it easy for employers to exploit the law to their advantage through resort to various legal stratagems, such as delocalising work centres, outsourcing work to other companies and adopting complex corporate structures in order to transfer work to separate legal entities or to hive off companies. In short, trade unions could find themselves severely hampered in the performance of their legitimate, normal activities in protecting their members ’ interests. These alleged, far-reaching negative effects of the statutory ban do not, however, arise in the situation at Hydrex. The Court ’ s review is bounded by the facts submitted for examination in the case. This being so, the Court considers that the negative assessments made by the relevant monitoring bodies of the ILO and European Social Charter are not of such persuasive weight for determining whether the operation of the statutory ban on secondary strikes in circumstances such as those complained of in the present case remained within the range of permissible options open to the national authorities under Article 11 of the Convention.", "99. The domestic authorities ’ power of appreciation is not unlimited, however, but goes hand in hand with European supervision, it being the Court ’ s task to give a final ruling on whether a particular restriction is reconcilable with freedom of association as protected by Article 11 ( see Vörður Ólafsson v. Iceland, no. 20161/06, § 76, ECHR 2010 ). The Government have argued that the “pressing social need” for maintaining the statutory ban on secondary strikes is to shield the domestic economy from the disruptive effects of such industrial action, which, if permitted, would pose a risk to the country ’ s economic recovery. In the sphere of social and economic policy, which must be taken to include a country ’ s industrial - relations policy, the Court will generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). Moreover, the Court has recognised the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely (see, in the context of Article 10 of the Convention, MGN Limited v. the United Kingdom, no. 39401/04, § 200, 18 January 2011, referring in turn to Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII, where the Court adverted to the “direct democratic legitimation” that the legislature enjoys). The ban on secondary action has remained intact for over twenty years, notwithstanding two changes of government during that time. This denotes a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the United Kingdom. These considerations lead the Court to conclude that in their assessment of how the broader public interest is best served in their country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11.", "100. The Court must also examine whether or not the contested restriction offended the principle of proportionality. The applicant union argued that it did, given its absolute character, which completely excluded any balancing of the competing rights and interests at stake and prohibited any differentiation between situations. The Government defended the legislature ’ s decision to eschew case-by-case consideration in favour of a uniform rule, and contended that any less restrictive approach would be impracticable and ineffective. In their submission, the inevitable variations in the potentially numerous individual cases such as the present one are not such as to disturb the overall balance struck by Parliament.", "101. The Court observes that the general character of a law justifying an interference is not inherently offensive to the principle of proportionality. As it has recently stated, a State may, consistently with the Convention, adopt general legislative measures applying to predefined situations without providing for individualised assessments with regard to the individual, necessarily differing and perhaps complex circumstances of each single case governed by the legislation (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 107, ECHR 2013, with many further references concerning different provisions of the Convention and Protocol No. 1 ). That does not mean the specific facts of the individual case are without significance for the Court ’ s analysis of proportionality. Indeed, they evidence the impact in practice of the general measure and are thus material to its proportionality ( ibid., § 108). As already stated, the interference with the applicant union ’ s freedom of association in the set of facts at Hydrex relied on by it cannot objectively be regarded as especially far reaching.", "102. The risks attendant upon any relaxation of the ban constitute a relevant consideration, which is primarily for the State to assess ( ibid. , § 108). In this respect, the applicant union has argued that it would have limited its action to a secondary strike at Jarvis, with no further spill-over effects. That can only be a matter of speculation however. As the materials in the case file show, the very reason that caused Parliament to curb the broad scope for secondary action was its capacity, pre-1980, to spread far and fast beyond the original industrial dispute. It is to that situation that, according to the applicant union, the United Kingdom should return if it is to conform to the requirements of Article 11.", "103. As has been recognised in the case-law, it is legitimate for the authorities to be guided by considerations of feasibility, as well as of the practical difficulties – which, for some legislative schemes, may well be large-scale – to which an individuated approach could give rise, such as uncertainty, endless litigation, disproportionate public expenditure to the detriment of the taxpayer and possibly arbitrariness ( ibid. ). In this regard it is relevant to note that for a period of ten years, 1980-90, the United Kingdom found it possible to operate with a lighter restriction on secondary action (see paragraphs 23-24 above). The Government have not argued that this legislative regime was attended by the difficulties referred to above, or that this was why the ban was introduced. The applicant union did not comment in detail on the legal position during that period. It took the view that the question of its compatibility with the Convention was “of entirely academic interest”, though added that were the point relevant it would argue such a restriction would not be acceptable. The Court observes that, although the legislative history of the United Kingdom points to the existence of conceivable alternatives to the ban, that is not determinative of the matter. For the question is not whether less restrictive rules should have been adopted or whether the State can establish that, without the prohibition, the legitimate aim would not be achieved. It is rather whether, in adopting the general measure it did, the legislature acted within the margin of appreciation afforded to it ( see Animal Defenders, cited above, § 110) – which, for the reasons developed above, the Court has found to be a broad one – and whether, overall, a fair balance was struck. Although the applicant union has adduced cogent arguments of trade - union solidarity and efficacy, these have not persuaded the Court that the United Kingdom Parliament lacked sufficient policy and factual reasons to consider the impugned ban on secondary industrial action as being “ necessary in a democratic society”.", "104. The foregoing considerations lead the Court to conclude that the facts of the specific situation challenged in the present case do not disclose an unjustified interference with the applicant union ’ s right to freedom of association, the essential elements of which it was able to exercise, in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work (see paragraphs 15-16 above). In this legislative policy area of recognised sensitivity, the respondent State enjoys a margin of appreciation broad enough to encompass the existing statutory ban on secondary action, there being no basis in the circumstances of this case to consider the operation of that ban in relation to the impugned facts at Hydrex as entailing a disproportionate restriction on the applicant union ’ s right under Article 11.", "105. Accordingly, no violation of Article 11 of the Convention can be held to have occurred on the facts of the present case.", "106. In closing, the Court would stress that its jurisdiction is limited to the Convention. It has no competence to assess the respondent State ’ s compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action. Nor should the conclusion reached in this case be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and by the ECSR." ]

[ "2. The first applicant union, the Norwegian Transport Workers’ Union (NTF), is a member of the Norwegian Confederation of Trade Unions (LO), the second applicant union. They were represented before the Court by Mr H. Angell, a lawyer practising in Oslo, assisted by Mr L. Nagelhus and Mr. H.P. Graver, advocates.", "3. The Government were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters) as their Agent, assisted by Ms H. Ruus and L. Tvedt, advocates at the same office.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "Background", "5. The applicant trade unions, NTF and LO, entered into a collective framework agreement with the Confederation of Norwegian Enterprise (Næringslivets hovedorganisasjon (“NHO”)), the largest employer organisation in Norway, and the Norwegian Logistics and Freight Association (NHO logistikk og transport), in respect of a fixed pay scheme for dockworkers at many of the major ports in Norway, including the port of Drammen ( Rammeavtale om fastlønnssystem for losse- og lastearbeidere “the Framework Agreement”).", "6. The Framework Agreement was entered into in the 1970s and then renewed biannually. It secured for Norwegian dockworkers the benefits of ILO Convention No. 137 (see further below), including the right to permanent employment and better pay. It had provisions on pay and working hours, and also included the following clause (clause 2(1)):", "“For vessels of 50 tonnes dwt [deadweight tonnes] and more sailing from a Norwegian port to a foreign port or vice versa, the unloading and loading work shall be carried out by dockworkers ..., [s]save for all unloading and loading at [a] company’s own facilities, where the company’s own people are used for unloading and loading.”", "7. In accordance with another clause (clause 3) of the Framework Agreement, an office for dock work was established in the port of Drammen (the Administration Office for Dock Work in Drammen ( Administrasjonskontoret for havnearbeid i Drammen (“the Administration Office”)). This was an entity which ran at cost and had a board of directors consisting of three representatives of users of the port and two representatives of dockworkers. Its purpose was to manage dockworkers and ensure that an appropriate number of such workers were affiliated with it. All permanently employed dockworkers in the Drammen port were thus employed by the Administration Office. The Framework Agreement applied from ship to quay and vice versa with the result that the handling of goods outside the port was unaffected by its requirements.", "8. Holship Norge AS (“Holship”) was a wholly-owned Norwegian subsidiary of the Danish freight forwarding group Holship Holding A/S. Holship established itself in Norway in 1996 and was based in Drammen. It was not a member of NHO or the Norwegian Logistics and Freight Association and was not party to the Framework Agreement. Until 2013 Holship used the services of the Administration Office when the company needed loading or unloading services in the port of Drammen. In 2013 it employed four persons in the port who, in addition to performing other tasks as employees for Holship, carried out loading and unloading operations for their employer.", "9. In a letter to Holship dated 10 April 2013, NTF demanded that a collective agreement be entered into and that Holship accept the Framework Agreement. Holship did not respond.", "10. On 11 June 2013, following further letters and voluntary mediation proceedings at the office of the National Mediator of Norway ( Riksmekleren ), NTF sent a letter with a notice of boycott. Part of the letter reads as follows:", "“The Norwegian Transport Workers’ Union maintains its demand for a collective agreement and encloses the Framework Agreement as input for the negotiations. Among other things, the agreement means that Holship must book dockworkers from the Administration Office for dock work in Drammen. We emphasise that this applies to ships engaged in both coastal and international shipping. As is the case for the ordinary Framework Agreement in ports, the Framework Agreement with Holship will have to be supplemented by an adaptation agreement for the port of Drammen.", "The Norwegian Transport Workers’ Union emphasises at the same time that the union is also willing to negotiate reasonable solutions to ensure that the negative effects for other employees of meeting the Norwegian Transport Workers’ Union’s demand for a collective agreement will be kept to a minimum.", "Since Holship has rejected all demands for a collective agreement which have been made by the Norwegian Transport Workers’ Union, we reiterate our notification regarding a blockade in respect of calls by ships at the port of Drammen where Holship is involved in unloading and/or loading work. The purpose of the blockade is to secure a collective agreement [and] enshrine in a collective agreement the principles concerning priority of engagement set out in clause 2(1) of the Framework Agreement in relation to Holship’s unloading and loading activity in the port of Drammen. As regards the lawfulness of a blockade in such cases, reference is made to the Supreme Court’s decision in the port of Sola case; see Rt. 1997 page [334, 337].”", "proceedings before the drammen City Court", "11. On 12 June 2013 NTF brought the case before the Drammen City Court ( tingrett ). In accordance with section 3 of the Boycott Act (see paragraph 60 below), it applied for an advance declaratory judgment that the announced boycott would not be unlawful.", "12. On 19 March 2014 the Drammen City Court ruled that the announced boycott would be lawful.", "13. In its judgment, the Drammen City Court found that there was no unlawful purpose ( rettsstridig formål ) behind giving notice of a boycott in order to compel an enterprise to enter into a collective agreement that would give dockworkers the protection which the Framework Agreement intended to provide, or to secure such an agreement. It stated that the matter did not concern an attempt to achieve a trade union organisation of employees, and the fact that there was a high degree of organisation in this regard was not a point in itself. As regards the dockworkers, each individual employee had a choice as to whether it was in his best interests to be a member of NTF.", "14. Furthermore, the Drammen City Court noted that the Framework Agreement only specified priority of engagement, and that Holship was entitled to use its own employees to carry out the relevant work if the Administration Office did not have the personnel available. It observed, moreover, that the boycott could have implications for Holship and its staff, but stated that this would be a consequence of the conflicting interests at stake, and thus a matter not particular to boycotts – similarly, this would be the effect of a strike or a lockout, which were also recognised forms of industrial action. The Drammen City Court observed that Holship had chosen to take a risk in employing staff to do unloading and loading work in the port.", "15. The Drammen City Court considered that the boycott would not harm important public interests. Instead, the court found that there were important public interests in loading and unloading work being carried out by competent personnel who were given continuous training. The point of the Framework Agreement had been to secure work for dockworkers for different forwarding companies, and to prevent unqualified labour from being used and casual workers from performing work on unbalanced terms. In that context, the Drammen City Court also noted that Norway had accepted the special position of dockworkers by ratifying ILO Convention No. 137 (see paragraph 70 below) and stated that the system in question constituted a long-standing customary practice. The Drammen City Court recognised that it was important to avoid a situation where a dominant position would distort competition and be an obstacle to freedom of establishment. However, neither of those consequences would be the result of safeguarding dockworkers’ rights in the manner intended by the Framework Agreement.", "16. Moreover, in the Drammen City Court’s view, some weight should be given to the fact that the intention had also been to ensure the satisfactory handling of goods in ports, an intention that had perhaps not been particularly emphasised. In the Drammen City Court’s assessment, the Framework Agreement accordingly served public interests and created predictability for those who performed the work and for users of the port.", "proceedings before the borgarting High Court", "17. Holship appealed against the Drammen City Court’s judgment, and on 8 September 2014 the Borgarting High Court ( lagmannsrett ) rendered a judgment in which it, like the Drammen City Court, concluded that the boycott would be lawful.", "18. The Borgarting High Court stated that, in principle, there was no unlawful purpose behind using a boycott to secure a collective agreement. Furthermore, it referred to a judgment by the Supreme Court ( Høyesterett ) of 5 March 1997 in a case concerning a similar situation in the port of Sola, Stavanger ( Rt -1997-334), in which it had been stated that the Framework Agreement, with its provision in clause 2(1), was a generally recognised collective agreement established by tradition in ports. In that case, the Supreme Court had noted that the agreement had its background in the special conditions of dockworkers, who had originally been casual workers without security for work or pay. Furthermore, the Supreme Court had observed that the provision in clause 2(1) of the Framework Agreement had been regarded as part of the fulfilment of Norway’s obligations under ILO Convention No. 137, and it followed from Article 3 of that Convention that registered dockworkers should have priority of engagement for dock work (see paragraph 70 below). The Borgarting High Court could not see that any circumstances existed in the present case that could lead to a different outcome from that in the Supreme Court’s judgment of 1997, in which it had been concluded that the boycott in question in that case was lawful.", "19. Furthermore, in response to an argument by Holship to the effect that its own dockworkers, who were also trade union members, would risk losing their work if the loading and unloading work was taken over by the Administration Office, since Holship would then have to terminate their employment contracts, the Borgarting High Court stated that it could not see that this situation was covered by the “breach of the law” scenario in the Boycott Act (see paragraph 60 below). Downsizing as a result of operational cutbacks would not necessarily constitute a breach of the law in relation to the person who was made redundant, since operational cutbacks could constitute reasonable grounds for dismissal. Moreover, the Borgarting High Court took note that NTF had repeatedly expressed its willingness to negotiate:", "“reasonable solutions to ensure that the negative effects for other employees of meeting the Norwegian Transport Workers’ Union’s demand for a collective agreement will be kept to a minimum”.", "This willingness to negotiate had also been reiterated during the appeal hearing. No such negotiations had taken place, but the Borgarting High Court assumed that they would take place in the event that a collective agreement (the Framework Agreement) was entered into. On this point, reference was made to the above judgment of the Supreme Court, in which a similar argument had been assessed and rejected.", "20. Under the heading “closed shop”, the Borgarting High Court went on to state that freedom of association was enshrined in Article 11 of the Convention, and that it was undisputed between the parties before the Borgarting High Court that that freedom included the right to choose not to join organisations (“negative freedom of association”). However, the Borgarting High Court did not find that there was evidence to support Holship’s claim that NTF’s demand for a collective agreement would impinge on the negative freedom of association. Although the employees at the Administration Office were in fact members of the Dockworkers’ Union (an association that came under the Portworkers’ Union, which was a division under NTF) at the time, on the basis of the evidence presented to it, the Borgarting High Court concluded that the parties to the case were well aware that it was not permitted to require employees to be members of a union, and also pointed to witnesses’ testimony to illustrate that such membership had in fact not been required.", "21. Before the Borgarting High Court, Holship had also argued that the Administration Office was, in reality, a temporary work agency that hired out labour contrary to provisions of domestic labour law. In response, the Borgarting High Court stated that the Administration Office had to be considered in the light of its special origin and distinctive objective; it had come about as a result of cooperation between social partners to secure the pay and working conditions of dockworkers, and the authorities had considered the Framework Agreement a fulfilment of Norway’s international obligations under ILO Convention No. 137. The court pointed out that Article 3 of the ILO Convention required member States to establish and maintain registers of dockworkers and stated that registered dockworkers should have priority of engagement for dock work (see paragraph 70 below). The Borgarting High Court therefore found that the distinctive activities of the Administration Office were not in conflict with general domestic regulations on the hiring of labour.", "22. Nor did the Borgarting High Court find that the announced boycott would be unlawful in terms of contravening provisions of competition law because it would harm important public interests or have an unwarranted effect, or because the interests pursued through it would be incommensurate with the harm it would cause. As to that last point, the Borgarting High Court stated that a boycott would, by its very nature, have negative consequences for the affected parties. In the instant case, it could not see that the negative consequences for Holship would exceed what had to be expected in a situation of that kind. Creating difficulties for the company in respect of loading and unloading, and possible negative financial consequences, would be an important point of the boycott.", "23. At the same time, the Borgarting High Court found that it was very important to the dockworkers that priority of engagement be maintained, in the absence of any agreement about an alternative way of organising dock work that would safeguard their need for a permanent and secure workplace. The Borgarting High Court stated that a boycott was the only form of industrial action at their disposal.", "24. Furthermore, the Borgarting High Court found that the dockworkers’ interests in having their demand for a collective agreement accepted had to be weighed against the consequences for Holship’s employees. It had been stated before the Borgarting High Court that if Holship could not carry out its own loading and unloading work, two or three employees might have to be made redundant. However, in the Borgarting High Court’s view, it was a key element in that balancing of interests that NTF had expressed a willingness to find solutions for Holship’s employees through negotiations.", "proceedings before the Supreme Court", "25. Holship appealed against the Borgarting High Court’s judgment to the Supreme Court. The Supreme Court’s Appeals Committee ( Høyesteretts ankeutvalg ) granted leave to appeal, and in a subsequent decision of 25 May 2016 it decided that the proceedings should, for the time being, be limited to issues of: the applicability of competition law to collective agreements; whether the boycott was unlawful, owing to the right of Holship to freedom of establishment under Article 31 of the EEA Agreement and the relationship between that provision and ILO Convention No. 137; and whether, if the boycott was contrary to freedom of establishment, that part of the EEA Agreement ( denne delen av EØS-avtalen ) conflicted with Article 101 of the Constitution or Article 11 of the Convention, and if the latter provisions had to be given precedence if that was the case.", "26. During the proceedings the Supreme Court applied for an advisory opinion by the Court of Justice of the European Free Trade Association (EFTA) States (the EFTA Court). The EFTA Court gave its opinion in a judgment of 19 April 2016 (E-14/15 Holship Norge AS v Norsk Transportarbeiderforbund ), part of which reads as follows:", "“49. It follows from the request that NTF participates in the management of the AO. It is in NTF’s and the AO’s common interest to preserve the market position of the AO. This combination of a business objective with NTF’s core tasks as a trade union becomes possible when a trade union engages in the management of an undertaking, such as it turns out in the present case. ...", "50. The effects of the priority clause and the creation of the AO appear therefore not to be limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition ...", "51. Moreover, the Court notes that the AO system in the present case protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement.", "...", "123. Fundamental rights form part of the unwritten principles of EEA law. ... The fundamental rights guaranteed in the EEA legal order are applicable in all situations governed by EEA law. Where overriding reasons in the public interest are invoked in order to justify measures which are liable to obstruct the exercise of the right of establishment, such justification, provided for by EEA law, must be interpreted in the light of the general principles of EEA law, in particular fundamental rights. ...", "124 Whether a restrictive measure aims at protecting workers needs to be answered in light of these considerations. When determining the aim pursued by the boycott, the national court must therefore take into account the objective pursued by the overall system established through the collective agreement in question. In that regard, the boycott cannot be viewed in isolation from the agreement of which it seeks to procure acceptance.", "125 The Court notes further that it is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract. It must rather be assessed if the measure at issue genuinely aims at the protection of workers. The absence of such an assessment may create an environment where the measures allegedly taken with reference to the protection of workers primarily seek to prevent undertakings from lawfully establishing themselves in other EEA States (see, for comparison, AG Poiares Maduro in his Opinion in Viking Line, cited above, point 67 et. seq.).", "126 It appears in the present case that the aggregate effects of the priority clause and the creation of the AO are not limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition. The AO system protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement.", "127 ... from the information before the Court, there is nothing to suggest that some kind of labour dispute between Holship and its employees exists and that the boycott imposed aims at improving the working conditions of Holship’s employees. The boycott is even to the detriment of Holship’s employees and may touch upon fundamental rights of Holship, such as the negative right to freedom of association, and possibly that of its employees. ...", "...", "130 ... A restrictive measure must be such as to guarantee the achievement of the intended aim and must not go beyond what is necessary in order to achieve that objective. ...", "131 It is for the referring court to determine, having regard to all the facts and circumstances before it and the guidance provided by the Court, whether the restrictive measure at issue can be justified.”", "27. The Supreme Court, sitting in a plenary formation, rendered its judgment on 16 December 2016. By ten votes to seven, it ruled that the boycott would be unlawful.", "28. The Supreme Court’s majority firstly recognised that the Supreme Court had declared a similar boycott lawful in the Port of Sola case which it had adjudicated on in 1997 (see paragraph 18 above). In that case, however, it had not been submitted that the right to priority of engagement conflicted with freedom of establishment under Article 31 of the EEA Agreement, and the Supreme Court had therefore not considered that issue. In the instant case, that argument had been raised, and the EFTA Court had been asked for an advisory opinion, in which it had stated that the system of priority enshrined in the Framework Agreement was likely to constitute a restriction of freedom of establishment (see paragraph 26 above).", "29. The Supreme Court did not find it necessary to conclude whether Article 101 of the Constitution (see paragraph 59 below) or Article 11 of the Convention would be applicable to the boycott. It stated that in the event that Article 101 applied, the question for the Supreme Court was whether the interference with a possible right to boycott was proportionate.", "30. According to the Supreme Court, the right to freedom of establishment was a fundamental right in the context of EEA cooperation. For that reason, it concluded that the case concerned a balancing of the right possibly vested in the applicants under Article 11 of the Convention against Holship’s right to freedom of establishment under the EEA Agreement. In this context, the majority considered that this weighing up of interests was similar in nature to the procedure carried out when restrictions were imposed on freedom of establishment as a result of basic rights forming part of EU and EEA law: just as rights under the EEA Agreement could justify restrictions of constitutional or Convention-based human rights, constitutional or Convention-based human rights could justify restrictions of rights under the EEA Agreement.", "31. The Supreme Court considered that if one used either the Constitution as one’s starting point, weighing the rights under it against the rights under the EEA Agreement, or the EEA Agreement, weighing the rights under it against those under the Constitution, one had to try to strike a fair balance between the rights in question. In the majority’s view, the outcome of weighing freedom of assembly against freedom of establishment should not depend on the set of rules which one used as one’s starting point. In a similar vein, it was stated that weighing freedom of association under the first paragraph of Article 101 of the Constitution against freedom of establishment under the EEA Agreement had to lead to the same result. The majority therefore moved on to address the issue of whether the announced boycott constituted a restriction on freedom of establishment under Article 31 of the EEA Agreement.", "32. In carrying out that assessment, there was, in the majority’s view, no doubt that the right to priority of engagement for loading and unloading operations for dockworkers registered with the Administration Office at the port of Drammen, which NTF was attempting to make Holship accept, constituted a restriction on freedom of establishment under Article 31 of the EEA Agreement. The issue for the majority thus became whether the right to priority of engagement could be justified by the exemptions that applied to that freedom.", "33. In that context, the Supreme Court’s majority stated that the practice of the Court of Justice of the European Union (CJEU) had been consistent in its application of the equivalent provision of Article 49 of the Treaty on the Functioning of the European Union (TFEU); restrictions on freedom of establishment which were applicable without discrimination on grounds of nationality could be justified by overriding reasons of general interest, provided that such restrictions were appropriate for achieving the objective pursued and did not go beyond what was necessary to achieve that objective. It was generally accepted law to interpret freedom of establishment under Article 31 of the EEA Agreement as being subject to the same limitation.", "34. The Supreme Court held that regardless of how far the protection of the right to boycott extended as a fundamental right under EU and EEA law, it had been established that the protection of workers was recognised as an overriding reason of general interest that could justify restrictions on freedom of establishment. However, a specific assessment of the measure at issue was required.", "35. Turning then to whether the announced boycott had to be considered lawful because it aimed to protect the interests of workers, the Supreme Court’s majority found that NTF’s ultimate objective in demanding the collective agreement was to protect such interests. However, this was not sufficient to justify the restriction on freedom of establishment. Reference was made to the case-law of the CJEU ( International Transport Workers’ Federation and Finnish Seamen’s Union v. Viking Line ABP and OÜ Viking Line Eesti, C-438/05, EU:C:2007:772, § 81, 11 December 2007), where it had been stated that while a collective action “could reasonably be considered to fall, at first sight, within the objective of protecting workers, such a view would no longer be tenable if it were established that the jobs or conditions of employment at issue were not jeopardised or under serious threat”.", "36. Moreover, the Supreme Court’s majority stated that the Administration Office was a separate legal person, and that the type of collective agreement provision demanded by NTF was irregular in nature. The protection of working and pay conditions provided by the right to priority of engagement was, in its view, relatively indirect. Priority of engagement for loading and unloading operations for dockworkers registered with the Administration Office would limit access to that market for other operators, in effect regulating the market. Jobs were protected by the company ( bedriften ) being effectively shielded from outside competition.", "37. The majority considered that although the Administration Office was a not-for-profit entity, it engaged in business activities in a market to which other operators wanted access. The dockworkers were employed by the office, and the activities of the office were financed by fees imposed on loading and unloading operations, which were paid by the port’s users. Priority of engagement for Administration Office employees for loading and unloading operations at the port of Drammen limited the access of other operators to this market. It favoured Administration Office personnel over other personnel, and through the right to priority of engagement, the Administration Office was shielded from competition from other entities.", "38. In the view of the majority of the Supreme Court, the primary effect of the announced boycott would be Holship being denied access to a market it wanted to enter. As such, the action differed from other collective actions whose purpose was to pressure an employer to improve pay and working conditions for its employees or prevent an employer from terminating its employees’ employment. As had been emphasised by the CJEU, the wish to safeguard an undertaking’s survival or shield a member State’s undertaking from competition was not sufficient to justify restrictions on freedom of movement within the EEA.", "39. The Supreme Court’s majority thus concluded that while the objective of the announced boycott was to protect the interests of workers, it could not be recognised as an overriding reason for restricting freedom of establishment.", "40. The majority then went on to consider the issue of whether the announced boycott was protected as a fundamental right under EU and EEA law, and, if so, whether it took precedence over freedom of establishment.", "41. The Supreme Court stated that one of the fundamental rights under EU and EEA law, which could be derived, inter alia, from freedom of assembly under Article 11 of the Convention, was the right to collective bargaining and collective action. Article 28 of the EU Charter explicitly established the right of collective bargaining and action.", "42. The right of collective action, however, was not absolute, but “subject to a restriction of proportionality”. For EU and EEA law, this followed from, inter alia, the judgments in Viking, cited above, and Laval of the CJEU ( Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet, C-341/05, EU:C:2007:809, 18 December 2007). It had been established in those judgments that fundamental rights had to be weighed against and reconciled with the requirements under EU and EEA law, and be in accordance with the principle of proportionality.", "43. It had been established by the Court in its judgment in the case of Enerji Yapı-Yol Sen v. Turkey (no. 68959/01, § 24, 21 April 2009) that the right to strike was protected by Article 11 of the Convention. The Supreme Court’s majority stated that it had not, however, been determined whether the right to boycott under circumstances not related to a strike was protected under that provision. Whereas a strike normally entailed a financial burden for the party initiating the action, a boycott did not normally entail any financial burden on the party encouraging the boycott, and did not necessarily entail a financial burden on the party initiating it. Collective action in the form of boycotts therefore did not necessarily enjoy the same protection as the right to strike.", "44. The Supreme Court’s majority went on to state that it was unnecessary to consider whether there was a “right to boycott” protected by Article 11 of the Convention, and that even if that provision had to be construed so as to protect a right to boycott, “this right [was] subject to the same restriction of proportionality as other rights protected by this provision”.", "45. In arguing that the announced boycott was lawful, NTF, with the support of LO, had submitted before the Supreme Court that the right to boycott was protected by the European Social Charter (revised), ILO Convention No. 87 concerning Freedom to Associate and Protection of the Right to Organise, and ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively. The Supreme Court stated in reply that, in so far as those Conventions did protect the right to boycott, they could not be interpreted as granting trade unions an unrestricted right to use boycotting as a means of collective action. In the Supreme Court’s majority’s view, those Conventions also had to allow for specific considerations similar to those required for rights under Article 11 § 2 of the Convention.", "46. The Supreme Court held that in considering whether a boycott satisfied the requirements for proportionality pursuant to the above international instruments, among other things, the boycott had to be reconciled with the rights under the EEA Agreement, of which freedom of establishment was a cornerstone.", "47. Moreover, in the case before it the boycott was being used as a means to compel Holship to accept the Administration Office’s workers’ right to priority of engagement for loading and unloading operations at the port of Drammen. The principal, and desired, effect would be to limit the access of other operators to the market for loading and unloading services. As such, the boycott would impose considerable restrictions on freedom of establishment and also conflict with the interests of other workers. If Holship were to be allowed to carry out loading and unloading operations at the port of Drammen, this would generate jobs within Holship. From a human rights perspective, it was hard to argue that those jobs carried less weight than jobs at the Administration Office, and the aims that the right to priority of engagement intended to protect could also be protected by other means.", "48. The Supreme Court’s majority concluded that priority of engagement as demanded by NTF was not sufficiently justified and did not satisfy the requirement to strike a fair balance between freedom of establishment and the possible fundamental right to boycott.", "49. Before the Supreme Court, NTF, with the support of LO, had strongly emphasised that priority of engagement for dockworkers for loading and unloading operations was in accordance with ILO Convention No. 137, and that formalisation of the priority clause had been Norway’s way of fulfilling its obligations under that Convention.", "50. According to the Supreme Court’s majority, it was, however, unclear how that provision was to be interpreted. To the majority, the purpose of ILO Convention No. 137 seemed to be orderly working and pay conditions for dockworkers. In the Supreme Court’s assessment, these considerations could be fulfilled by means other than granting priority of engagement for loading and unloading work to one group of workers: in accordance with the domestic labour legislation, appointments should, as a general rule, be on a permanent basis; satisfactory wage conditions could be negotiated by collective agreements; and safety requirements could be met by the training and certification of workers. In any event, regardless of how Article 3 of the ILO Convention was to be interpreted, pursuant to the EEA Act, that Convention had to give precedence to freedom of establishment under Article 31 of the EEA Agreement.", "51. The announced boycott thus had an unlawful purpose, as it violated freedom of establishment under Article 31 of the EEA Agreement and was therefore unlawful within the meaning of that term under section 2(a) of the Boycott Act (see paragraph 60 below).", "52. In contrast, the seven-judge minority found, firstly, that competition law did not apply to the collective agreement which the announced boycott sought to enforce. It then went to on to examine whether the boycott could be justified as a restriction on the right to freedom of establishment under Article 31 of the EEA Agreement.", "53. In that context, the minority noted that collective bargaining and action were acknowledged as fundamental rights in EEA law, and the protection of workers could thus constitute a compelling reason to accept restrictions on freedom of establishment. It then pointed to the EFTA Court’s having, in the minority’s view, misunderstood the purpose of the Administration Office in finding that it served a business purpose going beyond preserving pay and working conditions for its employees. The minority found it clear that preserving such conditions was the only purpose of the Administration Office. Nor did the minority agree with the majority that the impact that the boycott would have on the pay and working conditions of employees at the Administration Office would be indirect.", "54. Moreover, taking into account the development since the CJEU’s judgments in the cases of Viking and Laval, including that the European Parliament had twice rejected proposals for EU directives that would have limited rights to priority of engagement for dockworkers, the provisions of ILO Convention No. 137, and the fact that many EU Member States had systems of priority for registered dockworkers, the minority concluded that the boycott, whose purpose was to enforce the collective agreement in question, served a legitimate aim.", "55. Thereafter, the minority examined the issue of proportionality: whether the boycott was an adequate measure, and whether forcing Holship to accept the priority right by joining the Framework Agreement would entail going further than necessary to achieve the protection of workers. It concluded that a boycott was the only means of enforcing the agreement, and that nothing indicated that the Framework Agreement was inappropriate for ensuring the pay and working conditions of the dockworkers who enjoyed the priority right. In assessing whether the agreement went too far, the minority observed that dock work and shipping had developed, but on two occasions the EU Parliament had nevertheless not supported proposed EU Directives that would limit dockworkers’ priority rights. Reference was also made to considerations of the ILO Expert Committee about the relevance of the registration system.", "56. The minority concluded that at the time there were no good alternatives to the priority system in the Framework Agreement, and took note that the CJEU, in European Commission v. Kingdom of Spain (EU:C:2014:2430, § 41, 11 December 2014), had indicated that an arrangement resembling that in the Framework Agreement would ensure the rights under ILO Convention No. 137 without violating freedom of establishment. They concluded that “the employment situation for the permanently employed dockworkers with the Administration Office would become a lot less secure if the priority clause were not observed. The basis for permanent employment may disappear”.", "57. In conclusion, the minority found that in the circumstances of this case any restriction to which the announced boycott would give rise for the freedom of establishment was justified.", "58. The minority lastly stated that Holship had argued that the boycott ran counter to the negative freedom of association under Articles 101 of the Constitution and 11 of the Convention, but this was not the case. On this point, the minority simply stated that it was sufficient to point to the Borgarting High Court’s reasoning (see paragraph 20 above), with which it agreed." ]

[ "RELEVANT LEGAL FRAMEWORK", "Domestic legislation and collective agreements", "59. Article 101 of the Norwegian Constitution of 17 May 1814 ( Grunnloven ), as revised in 2014, reads:", "Article 101", "“Everyone has the right to form, join and leave associations, including trade unions and political parties.", "All people may meet in peaceful assemblies and demonstrations.", "The Government is not entitled to employ military force against citizens of the State, except in accordance with the law, unless an assembly disturbs the public peace and does not immediately disperse after the Articles of the statute book relating to riots have been read out clearly three times by the civil authority.”", "60. Sections 2 and 3 of the Act of 5 December 1947 concerning boycotts ( boikottloven ) read:", "Section 2", "“A boycott is unlawful:", "(a) when it serves an unlawful purpose or cannot achieve its goal without causing a breach of the law;", "(b) when it is executed or maintained by unlawful means or in an unnecessarily provocative or offensive manner, or on the basis of false or misleading information;", "(c) when it will harm important public interests or have an unwarranted effect, or when the interest pursued through the boycott is incommensurate with the harm it will cause;", "(d) when it is executed without the party against whom it is aimed having been given reasonable notice, or when this party and those who are encouraged to participate in the boycott have not been sufficiently informed in advance of the grounds for the boycott.”", "Section 3", "“If notification has been given of a boycott, a legal action may be brought to decide whether it is lawful.", "Conciliation proceedings before a Conciliation Board are not necessary in cases concerning the lawfulness of a boycott or ... compensatory damages for losses caused by a boycott.", "If a boycott has been executed or announced, a court may, at the request of the person against whom the boycott is directed, issue a temporary injunction prohibiting the boycott until it has been decided whether it is lawful.”", "61. Sections 1 and 2 of the EEA Act of 27 November 1992 ( Eøs-loven ) read as follows:", "Section 1", "“The provisions in the Main Part of the Agreement on the European Economic Area shall apply as Norwegian law ...”", "Section 2", "“Provisions of law that serve to fulfil Norway’s obligations under the Agreement shall, in the event of conflict, take precedence over other provisions regulating the same matter ...”", "62. Sections 2 and 3 of the Human Rights Act of 21 May 1999 ( menneskerettsloven ) read:", "Section 2", "“The following Conventions shall have the force of Norwegian law in so far as they are binding for Norway:", "1. The Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 of 11 May 1994 to the Convention, together with the following Protocols: ...”", "Section 3", "“The provisions of the Conventions and Protocols mentioned in section 2 shall take precedence over any other legislative provisions that conflict with them.”", "63. Subsequent to the Supreme Court judgment in this case, NHO and LO and NTF concluded a collective agreement for ports and terminals ( Havne- og terminaloverenskomsten ), which replaced the Framework Agreement, in which there is no system with priority for registered dockworkers.", "EEA and EU law material", "64. The respondent State is a member of the European Free Trade Association (EFTA) and party to the 1992 Agreement on the European Economic Area (the EEA Agreement), entered into by three of the EFTA Member States (Iceland, Liechtenstein and Norway (the EEA EFTA States)), the European Union (EU) and the EU Member States.", "65. The EEA Agreement extends the EU internal market to the EEA EFTA States by creating rules applicable to them equivalent to those applicable to the EU Member States under the EU Treaties and acts adopted in application of those treaties. Accordingly, the substantive rules in the EEA Agreement, within the areas covered by that agreement, essentially mirror the corresponding rules today found in the Treaty on the Functioning of the European Union (TFEU). They include the right to freedom of establishment provided for in Article 49 of the TFEU, the equivalent of which is found in Article 31 of the EEA Agreement.", "66. Article 31 of the EEA Agreement reads as follows:", "“1. Within the framework of the provisions of this Agreement, there shall be no restrictions on the freedom of establishment of nationals of an EC Member State or an EFTA State in the territory of any other of these States. This shall also apply to the setting up of agencies, branches or subsidiaries by nationals of any EC Member State or EFTA State established in the territory of any of these States.", "Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 34, second paragraph, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of Chapter 4.", "2. Annexes VIII to XI contain specific provisions on the right of establishment.”", "67. The CJEU has several times given judgments in which the balancing of the fundamental right to collective action with internal market economic freedoms was at issue. In Viking Line, cited above, for example, it concluded that collective action initiated by a trade union or a group of trade unions against a private undertaking in order to induce that undertaking to enter into a collective agreement, the terms of which were liable to deter it from exercising freedom of establishment, fell within the scope of what is currently Article 49 TFEU, and that a collective action such as that at issue in that case constituted a restriction on the freedom of establishment. It found also that that restriction could, in principle, be justified by an overriding reason of public interest, such as the protection of workers. In Laval, cited above, the CJEU also recognised that the right to take collective action for the protection of workers against possible social dumping may constitute a public interest objective. However, it had to be established that the restriction was suitable for ensuring the attainment of the legitimate objective pursued and did not go beyond what was necessary to achieve that objective.", "68. In Commission v. Spain (C-576/13, EU:C:2014:2430, 11 December 2014) the CJEU held that, by obliging undertakings of other EU Member States wishing to exercise the activity of cargo-handling in Spanish ports of general interest, first, to register with the Dockers’ Management Public Limited Liability Company ( Sociedad Anónima de Gestion de Estibadores Portuarios ) and, as appropriate, to hold shares in that company and, secondly, to employ as a priority workers provided by that company, including a minimum number on permanent contracts, Spain had failed to fulfil its obligations under Article 49 TFEU. However, the CJEU accepted that the port labour scheme in question was aimed at protecting workers and ensuring the regularity, continuity and quality of cargo handling, both of which were overriding reasons of general interest. The infringement in that case was based on the Spanish Government’s failure to demonstrate that the impugned restrictions were necessary and proportionate, as well as acceptance of the Commission’s argument to the effect that there were means less restrictive of the freedom of establishment to achieve the legitimate aims pursued (ibid., § 55).", "69. The compatibility of a national dock work organisation system – which included a requirement to rely on recognised dockers to perform dock work – with several provisions of EU law, including once again those on the freedom of establishment and freedom to provide services – was also recently examined by the CJEU in Katoen Natie Bulk Terminals NV and General Services Antwerp NV v. Belgische Staat and Middlegate Europe NV v. Ministerraad (Joined cases C-407/19 and C ‑ 471/19, EU:C:2021:107, 11 February 2021). The first count of the operative part of the judgment given in that case reads as follows:", "“Articles 49 and 56 TFEU must be interpreted as not precluding national legislation which obliges persons or undertakings wishing to carry out port activities in a port area – including activities which, strictly speaking, are unrelated to the loading and unloading of ships – to have recourse only to dockers recognised as such in accordance with the conditions and arrangements laid down pursuant to that legislation, provided that those conditions and arrangements, first, are based on objective, non-discriminatory criteria known in advance and allow dockers from other Member States to prove that they satisfy, in their State of origin, requirements equivalent to those applied to national dockers and, second, do not establish a limited quota of workers eligible for such recognition.”", "In answer to another question referred to it by the Belgian Council of State and Constitutional Court in that case, the CJEU held, at § 78, that:", "“national provisions [such as those at issue] organising dock work are not, as such, incompatible with the freedoms enshrined in Articles 49 and 56 TFEU, but that the assessment of the compatibility with those freedoms of the regime established pursuant to such provisions requires a holistic approach, taking into consideration all the conditions and arrangements for the implementation of such a regime.”", "In that case the CJEU pointed out other aspects of the applicable national legislation which would fall foul of Articles 49 and 56 TFEU.", "International and comparative law material", "70. Articles 2 and 3 of ILO Convention No. 137 concerning the Social Repercussions of New Methods of Cargo Handling in Docks, adopted in 1973 and ratified by Norway on 10 June 1974 (the Dock Work Convention) read:", "Article 2", "“1. It shall be national policy to encourage all concerned to provide permanent or regular employment for dockworkers in so far as practicable.", "2. In any case, dockworkers shall be assured minimum periods of employment or a minimum income, in a manner and to an extent depending on the economic and social situation of the country and port concerned.”", "Article 3", "“1. Registers shall be established and maintained for all occupational categories of dockworkers, in a manner to be determined by national law or practice.", "2. Registered dockworkers shall have priority of engagement for dock work.", "3. Registered dockworkers shall be required to be available for work in a manner to be determined by national law or practice.”", "71. Articles 3 and 11 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (adopted in 1948 and ratified by Norway on 4 July 1949) provide as follows:", "Article 3", "“1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.", "2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”", "Article 11", "“Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.”", "72. In its Digest of decisions and principles (fifth (revised) edition, 2006) the ILO Committee of Freedom of Association (“the CFA”) stated among other things as follows in the sections entitled “Right of organizations freely to organize their activities and to formulate their programmes”; “Other activities of trade union organizations (protest activities, sit-ins, public demonstrations, etc.) and “Collective bargaining”; “Subjects covered by collective bargaining”:", "“518. The boycott is a very special form of action which, in some cases, may involve a trade union whose members continue their work and are not directly involved in the dispute with the employer against whom the boycott is imposed. In these circumstances, the prohibition of boycotts by law does not necessarily appear to involve an interference with trade union rights.", "...", "915. As regards the legislative ban on including secondary boycott clauses in collective agreements, the Committee has considered that restrictions on such clauses should not be included in the legislation.”", "73. The decision of the European Committee on Social Rights’ of 3 July 2013 in the case of Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden (Complaint No. 85/2012) includes the following:", "“121. The Committee further considers that legal rules relating to the exercise of economic freedoms established by State Parties either directly through national law or indirectly through EU law should be interpreted in such a way as to not impose disproportionate restrictions upon the exercise of labour rights as set forth by, further to the Charter, national laws, EU law, and other international binding standards. In particular, national and EU rules regulating the enjoyment of such freedoms should be interpreted and applied in a manner that recognises the fundamental importance of the right of trade unions and their members to strive both for the protection and the improvement of the living and working conditions of workers, and also to seek equal treatment of workers regardless of nationality or any other ground.", "122. Consequently, the facilitation of free cross-border movement of services and the promotion of the freedom of an employer or undertaking to provide services in the territory of other States – which constitute important and valuable economic freedoms within the framework of EU law – cannot be treated, from the point of view of the system of values, principles and fundamental rights embodied in the Charter, as having a greater a priori value than core labour rights, including the right to make use of collective action to demand further and better protection of the economic and social rights and interests of workers. In addition, any restrictions that are imposed on the enjoyment of this right should not prevent trade unions from engaging in collective action to improve the employment conditions, including wage levels, of workers irrespective of their nationality.”", "74. In the case of Govia GTR Railway Ltd v. The Associated Society of Locomotive Engineers and Firemen (case no. 2016/450, [2016] EWCA Civ 1309, 12 December 2016) the Court of Appeal (Civil Division) of the United Kingdom considered an application for an interlocutory injunction brought by a railway against train drivers on the Southern Rail to prevent the train driver’s union from calling strike action, on the basis of Articles 49 and 56 TFEU. The Court of Appeal did not agree that either provision had been breached, and, having reviewed the Viking and Laval cases from the CJEU as well as the EFTA Court’s judgment in the Holship case, stated inter alia the following (paragraph 39):", "“In our judgment, it is absolutely plain for the reasons we have given that it is the object or purpose of the industrial action and not the damage caused by the action itself which renders it potentially subject to the freedom of movement provisions. A helpful test to apply is to ask whether, if the rules were laid down by government, they would be an unlawful interference with the freedom of establishment. ...”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION", "75. The applicant unions complained that the decision to declare the notified boycott unlawful had violated their right to freedom of association as provided for in Article 11 of the Convention, which reads as follows:", "“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.", "2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”", "Submissions by the parties and the third partyThe applicant unions", "The applicant unions", "The applicant unions", "76. The applicant unions emphasised the importance of collective agreements for the formation of pay and working conditions in Norway. It had not previously been called into question by the domestic courts that the Framework Agreement and the priority rule in it was a condition that regulated pay and working conditions. The aim of the boycott in the instant case had been to protect rights at the very heart of trade union activity, namely the right to work and the right to stable and organised working conditions for dockworkers. Boycotts and blockades were protected by a number of instruments of international law, notably ILO Convention No. 87, the European Social Charter, and the EU Charter.", "77. The applicant unions stated in their observations that the Government had referred to the issue of negative freedom of association in their observations without drawing the conclusion that it was of direct relevance. In the applicant unions’ view, it was irrelevant. They stated that the Norwegian Business Association ( Bedriftsforbundet ), of which Holship was a member, had lodged a complaint about alleged “closed-shop” practices in the dock sector with the European Committee on Social Rights, which in its decision of 17 May 2016 ( Bedriftsforbundet v. Norway, complaint no. 103/2013) had concluded that there had been no violation. The Supreme Court majority had made no mention of the issue, whereas the minority had commented on Holship’s claim and had found it unfounded. First and foremost, the instant case concerned the question of whether there had been an infringement of the right of collective bargaining and the right to enter into a collective agreement.", "78. In the applicant unions’ view, the Supreme Court’s majority had erred in so far as it had balanced a right under the Convention against a right under the EEA Agreement in a manner that would only have been appropriate had the issue been a matter of conflicting rights under the Convention. The result had been that the right of collective action had had to be justified in the light of an economic freedom, the freedom of establishment, provided under the EEA. The majority had erroneously examined whether the applicant unions’ exercise of rights under Article 11 had been proportionate, whereas it should have examined whether the restriction placed on their right fulfilled the criteria set out in the second paragraph of Article 11. Finding the boycott unlawful in the circumstances of the present case had been disproportionate. The margin of appreciation to be afforded to the domestic authorities in the present case, a case which had related to a primary and important form of industrial action, had to be narrow.", "The Government", "79. The Government submitted that EEA law provided for the protection of human rights which was similar to the protection provided for by the Convention, and that there was a presumption of compliance with the Convention which was the same as or similar to that set out in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI), a case concerning the implementation of EU law. That presumption had not been rebutted in the instant case, as there had been no “manifestly deficient” protection of Convention rights.", "80. Furthermore, the Government maintained that the Court’s case-law left unresolved the question of whether a boycott such as the one at issue in the instant case was included in the panoply of rights protected under Article 11 of the Convention. In any event, the Government argued that if Article 11 were found to be applicable to the boycott in question, the Supreme Court’s judgment of 16 December 2016, in which the boycott had been declared unlawful, complied with the criteria set out in the second paragraph of that provision.", "The European Trade Union Confederation (ETUC)", "81. The European Trade Union Confederation (ETUC) focused on the relevant legal framework and provided references to international case-law and other legal material from the United Nations, the ILO, the Council of Europe and the EU. From these, it inferred in particular that the right to collective bargaining and the right to collective action, including the right to strike, were recognised as fundamental rights that had to be guaranteed to all workers, including dock workers, and their trade unions. It furthermore submitted that any restriction on those rights had to be exclusively limited to certain conditions and situations, and that the Court, in interpreting the permissible restrictions in relation to Article 11 of the Convention, should take specific account of the competent international and European monitoring bodies mentioned above which had denied that even the need for the “principle of proportionality” was a permissible restriction on the right to strike.", "AdmissibilityApplicability of Article 11 of the Convention", "Applicability of Article 11 of the Convention", "Applicability of Article 11 of the Convention", "82. As to whether the announced boycott entailed the exercise of freedom of assembly and association protected by Article 11 § 1 of the Convention, the Court notes that it has not previously rendered judgments relating to an action fully resembling the one at issue in the instant case. The collective action which was the subject of the domestic court judgments was essentially a boycott in the form of a blockade organised by NTF in order to pressure a company, Holship, to enter into a collective agreement containing a priority clause for registered dockworkers employed in the Administration Office.", "83. The Court has generally held that Article 11 presents trade union freedom as one form or a special aspect of freedom of association. The provision does not guarantee trade unions, or their members, any particular treatment by the State (see, among other authorities, Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 134, ECHR 2013 (extracts)). The Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible (see, for example, Demir and Baykara v. Turkey [GC], no. 34503/97, § 140, ECHR 2008).", "84. The Court notes that in National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, § 76, 8 April 2014), as regards the applicability of Article 11 to a sympathy strike, it held that it would be inconsistent with the method of interpretation outlined in Demir and Baykara, cited above, § 85, for it to adopt in relation to that provision an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law (see in relation to the latter paragraphs 70-73 above). In addition, the Court notes that at issue in the case of Gustafsson v. Sweden (25 April 1996, Reports of Judgments and Decisions 1996 ‑ II) was collective action in the form of a blockade. In that case, which had been brought by the applicant business as a result of the extent of the inconvenience or damage caused by the union action to its business, the Court recognised that the measures complained of must have entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement. The Court accepted in that case that, to a degree, the enjoyment of the applicant business’ freedom of association was thereby affected and Article 11 was thus deemed applicable. The Court considers that given that a blockade can lead to Article 11 being deemed applicable in relation to the negative freedom of association of an applicant business or employer, it follows that the exercise of a blockade by an applicant trade union can also give rise to the applicability of Article 11 of the Convention. The Court observes that a boycott may be the only means available to a trade union to put pressure on an employer in defense of workers’ rights", "85. The Court observes moreover that in one of the CJEU judgments to which the domestic court referred, the CJEU had recognised, for the first time, relying in part on the European Social Charter, that the right to collective action constituted a fundamental right under EU law. It is noteworthy that the form of collective action at issue in that case – Laval un Partneri – was also a blockade.", "86. With regard to the proposed action in the instant case, the Court observes that its purpose was to pressure Holship to enter into a collective agreement with NTF under which registered dockworkers employed by the Administration Office would enjoy the right to priority of engagement for unloading and loading operations at the port. Leaving aside for the time being the question of whether – as the majority of the Supreme Court considered – the action pursued business aims beyond the protection of the rights and interests of workers (see paragraph 38 above) – a question which will be of relevance on the merits – it is undisputed that the impugned boycott also aimed to ensure stable and safe working conditions for dockworkers. This was recognised by both majority and minority members of the Supreme Court and by the lower courts. Furthermore, the Court observes that the priority right which was one of the rights the proposed boycott sought to defend, was based on a long-standing tradition domestically, and was provided for in ILO Convention No. 137 (see paragraph 70 above).", "87. In the light of the above considerations, the Court finds that the impugned boycott which the applicant unions notified in advance in accordance with domestic law constituted a trade union action which they sought to take in order to protect, at least inter alia, the occupational interests of union members in a manner capable of falling within the scope of Article 11 § 1 of the Convention. It follows that this provision is applicable.", "Conclusion on admissibility", "88. The Court, having found that Article 11 of the Convention is applicable, further notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35. It must therefore be declared admissible.", "MeritsInterference with the applicants’ rights under Article 11 of the Convention", "Interference with the applicants’ rights under Article 11 of the Convention", "Interference with the applicants’ rights under Article 11 of the Convention", "89. It is not contested that the Supreme Court’s declaratory judgment finding the intended boycott unlawful entailed a “restriction” on the exercise of the trade unions’ rights under the second paragraph of Article 11 of the Convention.", "Lawfulness and legitimacy of the restriction", "90. Turning to the requirement that the restriction be prescribed by law, the Court finds that the Supreme Court’s judgment had an adequate legal basis – the 1947 Boycott Act (see paragraph 60 above).", "91. The Court also finds that the decision to declare the boycott unlawful was made in order to protect the “rights and freedoms” of others, in particular the company’s right to freedom of establishment as guaranteed by the EEA Agreement and incorporated in Norwegian law by the EEA Act (see paragraphs 61 and 66 above).", "Whether the restriction was necessary in a democratic society", "(a) General principles", "92. The Court reiterates that the essential object of Article 11 of the Convention is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected by that provision, but that there may in addition be positive obligations on the State to secure the effective enjoyment of such rights (see, for example, Sindicatul “Păstorul cel Bun”, cited above, § 131, and Demir and Baykara, cited above, § 110).", "93. As to the substance of the right of association enshrined in Article 11 of the Convention, the Court has taken the view that paragraph 1 of that Article affords members of a trade union a right, in order to protect their interests, that the trade union should be heard, but has left each State a free choice of the means to be used towards this end. The right to collective bargaining has not been interpreted as including a “right” to a collective agreement, nor does the right to strike imply a right to prevail ( National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, judgment of 8 April 2014, § 85). What the Convention requires is that under national law trade unions should be enabled, in conditions not at variance with Article 11, to strive for the protection of their members’ interests (see, for example, Demir and Baykara, cited above, § 141, and the references therein).", "94. Furthermore, the Court has stated that the evolution of case-law on the substance of the right of association enshrined in Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned to secure trade union freedom, subject to its margin of appreciation; and secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law (ibid., § 144).", "95. Moreover, through its case-law, the Court has built up a non-exhaustive list of the constituent elements of the right to organise, including the right to form and join a trade union, the prohibition of closed-shop agreements, the right for a trade union to seek to persuade the employer to hear what it had to say on behalf of its members and, having regard to developments in labour relations, the right to bargain collectively with the employer which has, in principle, except in very specific cases, also become one of the essential elements of the first right listed above (see Sindicatul “Păstorul cel Bun”, cited above, § 135; and Demir and Baykara, cited above, § 145). In Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 46, ECHR 2002 ‑ V, the Court stated:", "“[T]he essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on issues which the union believes are important for its members’ interests”.", "96. The Court has stated that the list is not finite. On the contrary, it is subject to evolution depending on particular developments in labour relations. In that connection, it is appropriate to remember that the Convention is a living instrument which has to be interpreted in the light of present-day conditions, and in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights, thus necessitating greater firmness in assessing breaches of the fundamental values of democratic societies. In other words, limitations to rights have to be construed restrictively, in a manner which gave practical and effective protection to human rights ( Demir and Baykara, cited above, § 146).", "97. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom and protection of the occupational interests of union members may be secured (see, among other authorities, Sindicatul “Păstorul cel Bun”, cited above, § 133).", "98. In cases relating to industrial actions, the Court has also stressed that its jurisdiction is limited to the Convention. It has no competence to assess a respondent State’s compliance with the relevant standards of the ILO or the European Social Charter, the latter containing a more specific and exacting norm regarding industrial action. In National Union of Rail, Maritime and Transport Workers v. the United Kingdom (no. 31045/10, § 106, ECHR 2014), the Court emphasised, however, that the conclusion which it had reached in that case, in which it found that a ban on taking secondary industrial action against an employer not party to a labour dispute did not violate Article 11, should not be understood as calling into question the analysis effected on the basis of those standards and their purposes by the ILO Committee of Experts and the European Committee on Social Rights. The Court has also emphasised that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law or, in a case such as this, EEA law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see, in relation to Article 8 of the Convention, Jeunesse v. the Netherlands [GC], no. 12738/10, § 110, 3 October 2014).", "(b) Application of those principles to the present case", "99. The Court considers that two issues relating to negative freedom of association and the possible existence and application of the presumption of equivalent protection need to be addressed as preliminary issues.", "100. In the present case the Supreme Court declared the announced boycott unlawful as it would have amounted to an unlawful/disproportionate restriction of Holship’s right to freedom of establishment as guaranteed by the EEA Agreement (see, inter alia, paragraph 51 above).", "101. It appears that Holship, before the domestic courts, also argued that the boycott would be unlawful because it would contravene the right to “negative freedom of association” enshrined in the first paragraph of Article 11 of the Convention (see, for example, paragraphs 20 and 58 above). This argument was dismissed by the Borgarting High Court on the grounds that it had not been proved that the Administration Office was in fact a “closed shop” for NTF members (see paragraph 20 above), and the Supreme Court’s majority did not discuss it. The minority, which had to take a stand on Holship’s argument relating to negative freedom of association, since it concluded that Holship’s arguments relating to the EEA Agreement could not succeed, only referred to the Borgarting High Court’s reasons on that point (see paragraph 58 above).", "102. In the light of the above, the parties disagree on whether questions relating to “negative freedom of association” have relevance to the case now before the Court.", "103. The Court notes that had it been established by the domestic courts that the announced boycott would impinge on the negative freedom of association because of the issue of a “closed shop”, the case would have required a balancing of competing rights protected by the first paragraph of Article 11 of the Convention (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 113, ECHR 1999 ‑ III; and, with regard to the term “closed shop”, Young, James and Webster v. the United Kingdom, 13 August 1981, § 13, Series A no. 44). However, that was not established, and the judgment of the Supreme Court indicated only that the announced boycott would interfere with Holship’s right to freedom of establishment under the EEA Agreement, and that that was why it declared it unlawful (see, inter alia, paragraph 51 above). That being the case, and also noting that no submissions have been made to the effect that the domestic legislation in general did not offer adequate protection of the negative freedom of association, the Court finds that its examination in the instant case must focus on the necessity of the restriction under the second paragraph of Article 11.", "104. As regards the second preliminary issue, the Court reiterates that it has held that if an organisation to which a Contracting State has transferred jurisdiction is considered to protect fundamental rights in a manner which can be considered at least “equivalent” to that for which the Convention provides, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 152-153, ECHR 2005 ‑ VI, §§ 155-56 and Konkurrenten.no AS v. Norway (dec.), no. 47341/15, § 42, 5 November 2019).", "105. In the present case, the respondent Government argued that while EU law and EEA law differ in certain respects, and even if it were decided that this difference means that EEA law, as such, does not benefit from the so-called Bosphorus presumption of equivalent protection, the present case concerns the application of the main part of the EEA agreement, which corresponds with EU law, and to which the presumption should therefore apply.", "106. In the aforementioned Konkurrenten.no decision, cited above, the Court recently stated that the basis for the presumption established by Bosphorus is in principle lacking when it comes to the implementation of EEA law at domestic level within the framework of the EEA Agreement, due to the specificities of the governing treaties compared to those of the European Union. For the purpose of the analysis in that decision, two distinct features were specifically highlighted. Firstly, and in contrast to EU law, there is within the framework of the EEA Agreement itself no direct effect and no supremacy. Secondly, and although the EFTA Court has expressed the view that the provisions of the EEA Agreement “are to be interpreted in the light of fundamental rights” in order to enhance coherency between EEA law and EU law (see, inter alia, the EFTA Court’s judgment in its case E-28/15 Yankuba Jabbi [2016] para. 81), the EEA Agreement does not include the EU Charter of Fundamental Rights, or any reference whatsoever to other legal instruments having the same effect, such as the Convention.", "107. As regards, in particular, the latter feature, the Court observes, however, as clearly stated by the EFTA court in the Holship case, that fundamental rights form part of the unwritten principles of EEA law (see paragraph 26 above). The respondent Government provided several examples from the EFTA court in this regard. Since this reflects the position which previously pertained under EU law, prior to successive EU Treaty amendments, according to which fundamental rights were first recognised as general principles of EU law, the Court considers that the fact that the EEA agreement does not include the EU Charter is not determinative of the question whether the Bosphorus presumption could apply when it comes to the implementation of EEA law, or certain parts thereof.", "108. However, given one of the other features of EEA law identified by the Court in the Konkurrenten. no decision – the absence of supremacy and direct effect, added to which is the absence of the binding legal effect of advisory opinions from the EFTA Court – and given that the existence of procedural mechanisms for ensuring the protection of substantive fundamental rights guarantees is one of the two conditions for the application of the Bosphorus presumption, the Court leaves it to another case, where questions in relation to the procedural mechanisms under EEA law may arise, to review this issue. It therefore proceeds on the basis that for the purposes of this case the Bosphorus presumption does not apply to EEA law. The Court is therefore required to determine whether the restriction was necessary for the purposes of Article 11 of the Convention.", "109. Having addressed those two preliminary issues, the Court turns to the heart of the present case, namely the assessment of the necessity of the restriction of the applicant trade union’s Article 11 rights as a result of the Supreme Court decision to declare the announced boycott unlawful. In this context the Court observes that the particularity of the fundamental right to engage in collective action is that it too may be exercised with a view to protecting the rights of others, namely the interests of workers and the prevention of, inter alia, social dumping. However, in this case the Court emphasises that a majority of the Supreme Court found that the Framework Agreement and its system involving priority for registered dockworkers had little to do with the protection of workers. It held that the collective agreement demanded by NTF was “irregular”, and that the protection it afforded to members’ interests in working and pay conditions was “relatively indirect” (see paragraph 36 above). As regards the Administration Office, the Supreme Court regarded it as a “company” that engaged in “business activities in a market” – the market of unloading and loading activities – to which other operators wanted access, and as regards the announced boycott, it stated that its “primary effect” would be to deny Holship access to that market, which it wished to enter (see paragraphs 37 ‑ 38 above).", "110. While it is true that the Supreme Court was heavily divided in relation to these findings of fact and law, the Court emphasises that it is in the first place for the domestic authorities to interpret and apply the domestic law and to establish the facts on the basis of the evidence before them (see, in relation to the right to strike under domestic law and Article 11 of the Convention, Hrvatski liječnički sindikat v. Croatia, no. 36701/09, § 56, 27 November 2014; and, in another context of Article 11, for example, Jhangiryan v. Armenia, nos. 44841/08 and 63701/09, § 114, 8 October 2020).", "111. As regards the balancing exercise undertaken by the Supreme Court in the present case, the latter first pointed to the freedom of association established by the first paragraph of Article 101 of the Constitution, which had to be considered taking into account Article 11 of the Convention, before also pointing to the freedom of establishment under Article 31 of the EEA Agreement, which it referred to as a “fundamental freedom” thereunder. According to the Supreme Court:", "“these rights must be weighed against each other as part of a consideration of proportionality. This weighing of interests is similar in nature to the one carried out when restrictions are imposed on the freedom of establishment as a result of basic rights forming part of EU and EEA law. ... While the wording of the conditions for restricting human rights and rights under the EEA Agreement may differ, the nature of the considerations remain the same”.", "Referring to the possibility of different interpretations of the Constitution, and by the EFTA court and CJEU in this field, the reporting judge indicated that:", "“one cannot rule out that considerations of the European Court of Human Rights in weighing the freedom of assembly against the freedom of movement within the internal market may come to differ from those of the European Court of Justice and the EFTA Court. I cannot see, however, that there are any grounds on which to argue that such differences exist today”.", "112. As is clear from paragraphs 30 to 51 above, the Supreme Court engaged in an extensive assessment of the conflicting fundamental right to collective action relied on by the applicant unions and the fundamental economic freedom under EEA law on which the employer relied. It indicated that the boycott must, among other things, be reconciled with the rights that follow from the EEA Agreement and that in consideration of proportionality a fair balance had to be struck between these rights.", "113. It is clear from the balance struck by the domestic court that its characterisation of the boycott – that it was being used as a means to compel acceptance of a right of priority engagement and notably with the desired effect being to limit the access of other operators to the market for loading and unloading services – was central to its finding that such a fair balance had, in the particular circumstances of that case, been struck. In addition, it appeared relevant in the present case that the announced boycott targeted a third party.", "114. As indicated previously (see paragraph 97), the Contracting States enjoy a wide margin of appreciation in this field, in view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the high degree of divergence between the domestic systems in this field (see, also, Unite the Union v. the United Kingdom (dec.), no. 65397/13, § 55, 3 May 2016). As regards the breadth of the margin, it is useful to remember that it will depend on the nature and extent of the restriction on the trade-union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right (see Demir and Baykara, cited above, § 86). Given the characteristics of the collective action identified by the Supreme Court (see the preceding paragraph and paragraphs 36-38 above), the breadth of the margin in the present case was clearly wide.", "115. The Court also reiterates that, when exercising its supervisory function, its task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on. Where the balancing exercise has been undertaken by the national authorities in conformity in essence with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see, among many authorities, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 164, 27 June 2017). In this case, it is clear from the information available to the Court that following the Supreme Court judgment the relevant social partners negotiated and concluded a new collective agreement (see paragraph 63 above). The restriction of the application unions’ Article 11 rights did not as such prevent them from engaging in further collective bargaining, the information provided by the applicant unions to the effect that the absence in the renegotiated agreement of a similar priority clause had considerable impact on the organisation of dock work notwithstanding. Against that background, the Court does not consider that sufficiently “strong reasons” exist for it to substitute its views for that of the Supreme Court in this case.", "116. Even though the Court considers, on the basis of the material before it and given the findings of fact and domestic law by the domestic court, that the latter acted within the margin of appreciation afforded to it in this area when declaring the boycott unlawful (see paragraphs 94 and 97 above), it considers it necessary, given the manner in which the domestic court expressed the balancing exercise to be effected, to note the following.", "117. Firstly, the Court accepts that protecting the rights of others granted to them by way of EEA law may justify restrictions on rights under Article 11 of the Convention (see paragraph 91 above). However, it also notes that for a collective action to achieve its aim, it may have to interfere with internal market freedoms such as those at issue in the case before the Supreme Court. As noted by the Borgarting High Court in the present case, creating difficulties for the company in respect of loading and unloading, and the possible negative financial consequences flowing therefrom, would have been an important point of the boycott (see paragraph 22 above). In the same way that a right to strike does not imply a right to prevail, the degree to which a collective action risks having economic consequences cannot, therefore, in and of itself be a decisive consideration in the analysis of proportionality under Article 11, paragraph 2 of the Convention (see Ognevenko v. Russia, no. 44873/09, § 73, 20 November 2018). Even when implementing their obligations under EU or EEA law, the Court observes that Contracting Parties should ensure that restrictions imposed on Article 11 rights do not affect the essential elements of trade union freedom, without which that freedom would become devoid of substance.", "118. Secondly, as follows from paragraphs 98 and 110 above, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU or EEA law, the Court’s role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention. As highlighted in the submissions of the applicant unions in the present case, however, there is a risk that a domestic court which finds itself in a position such as that in which the Supreme Court found itself in the present case may balance a right under the Convention against a right under the EEA Agreement in a manner that would generally only be appropriate had the issue before it been a matter of conflicting fundamental rights under the Convention. From the perspective of Article 11 of the Convention, EEA freedom of establishment is not a counterbalancing fundamental right to freedom of association but rather one element, albeit an important one, to be taken into consideration in the assessment of proportionality under Article 11, paragraph 2. The risk just referred to is one which, while ensuring full compliance with their obligations under EEA or EU law, domestic courts must seek to avoid.", "119. However, in the present case, as stated in paragraph 113 above, central to the domestic court’s finding was its characterisation of the purpose and nature of the announced boycott. While the Supreme Court did not approach the case before it strictly from the angle of the proportionality of the restriction imposed on the trade unions’ exercise of rights under Article 11 of the Convention, but concentrated to a great extent on the effects of the boycott on the freedom of establishment of the company targeted, the Court considers that it nonetheless remained within its wide margin of appreciation and advanced relevant and sufficient grounds to justify its final conclusion in the particular circumstances of this case.", "120. On the basis of the above considerations, the Court finds that there has been no violation of Article 11 of the Convention." ]

[ "2. The applicant was born in 1981 and is currently detained at the Corradino Correctional Facility (‘CCF’), Paola. The applicant was represented by Mr W. Jordash, a lawyer practising in the Hague, the Netherlands.", "3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate.", "4. The facts of the case may be summarised as follows.", "BACKGROUND TO THE CASE", "5. The applicant is a businessman and the former head of the Tumas Group. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne Caruana Galizia in October 2017. On the same day he was released on bail.", "6. On 30 November 2019 the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the CCF, Paola, Malta.", "CONSTITUTIONAL REDRESS PROCEEDINGS", "7. Following the refusal of a number of requests for release, the last ones (at the time) being rejected in April 2020 (see for details Fenech v. Malta (dec.) no. 19090/20, §§ 4-33, 23 March 2021) on 1 May 2020 the applicant instituted constitutional redress proceedings seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 § 4 of the Convention and asked the court to release him. The proceedings came to an end by a judgment of 23 November 2020 by which the Constitutional Court rejected the applicant’s complaints. The applicant had not raised any complaints under Articles 2 or 3 of the Convention during these proceedings, as he considered that constitutional redress proceedings would not be an appropriate remedy given their duration and the urgency of the matter.", "OTHER RELATED PROCEEDINGS", "8. On 17 November 2020, the applicant’s legal counsel at the domestic level (CM) filed an application before the Court of Magistrates asking for the court’s protection in view of the prison authorities’ refusal to allow the lawyer even to show certain documents to the applicant. According to the applicant, in its decree of 23 November 2020 (not submitted to the Court), the court observed that a lawyer should not be prevented from taking documents with him to prison in order to discuss them with the detainee. However, the court also observed that, pursuant to Regulation 54(1) of the Prisons Regulations, any document may be read or examined by the Director if he suspects that such correspondence is unrelated to the proceedings.", "9. On 23 November 2020 the applicant filed a further application before the Court of Magistrates by which he sought an order by the court to ensure confidential communications whilst he was in detention. He pointed out his lack of opportunity to communicate verbally or in written form with his lawyers, the lack of any opportunity to bring and show documents to him in prison, and to have a secure telephone line without recording. According to the applicant, in its decree of 24 November 2020 (not submitted to the Court), the Court of Magistrates declined to intervene, claiming that the issue was solely within the jurisdiction of the Director of Prisons, and the court had no jurisdiction to intervene on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. With particular reference to the request for an unrecorded telephone line, the court denied the request, referring to Regulation 59 of the Prisons Regulations, which specifically allowed the monitoring and recording of all conversations in prison.", "10. The applicant did not lodge constitutional redress proceedings complaining about the above.", "CONDITIONS OF DETENTION AT THE CORRADINO CORRECTIONAL FACILITY", "11. In his application to the Court the applicant claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention as follows.", "12. According to the applicant, from 30 November 2019 to 3 January 2020, he was placed in solitary confinement. During that time i) he was not given any warm clothing or socks, was left in a cell in used shorts and T-shirt provided by the prison and refused access to his own clothing; ii) he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii) he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv) the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v) the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi) he was not given any water or cigarettes from 10 p.m. ‑ 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days.", "13. Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq.m. (sic.) and each detainee had less than 4 sq.m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell.", "14. The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to ten persons who left the prison at least weekly. The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once (according to his application). While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV.", "THE APPLICANT’S MEDICAL BACKGROUND", "15. The applicant was, at the time of lodging the application in 2020, thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report (submitted to the Court at the time of lodging the application) stating that the applicant was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”." ]

[ "RELEVANT LEGAL FRAMEWORK", "CRIMINAL CODE", "16. Article 9 of the Criminal Code, Chapter 9 of the Laws of Malta, concerning solitary confinement reads as follows:", "“(1) The punishment of solitary confinement is carried into effect by keeping the person sentenced to imprisonment, during one or more terms in the course of any such punishment, continuously shut up in the appointed place within the prison, without permitting any other person, not employed on duty nor specially authorized by the Minister responsible for the prisons, to have access to him.", "(2) No term of solitary confinement shall exceed ten continuous days.", "(3) More terms of solitary confinement may only be applied with an interval of two months between one term and another.", "(4) Nevertheless, solitary confinement may be applied during those intervals in case of any infringement of the prison regulations or for any other offence committed during the said intervals, provided that the terms be of short duration and that they shall not together exceed fifteen days in any one interval.", "(5) Where the law prescribes the punishment of solitary confinement and does not specify the particular number of terms, it shall not be lawful to inflict more than twelve terms of solitary confinement.", "(6) The punishment of solitary confinement is applied in the cases prescribed by law.", "(7) Before awarding the punishment of solitary confinement the court shall satisfy itself, if necessary by medical evidence, which may include a medical examination of the person convicted, that the person convicted is fit to undergo the said punishment.", "(8) Where, in the course of the execution of the punishment of solitary confinement, the medical officer of the prison certifies in writing that the prisoner is no longer fit to undergo such punishment, the execution of that punishment shall be suspended until such time as the prisoner is again certified to be medically fit to undergo such punishment.”", "PRISONS ACT", "17. Section 8 of the Prisons Act, Chapter 260 of the Laws of Malta, provides for the establishment of the Board of Visitors of the Prisons, which as of 2015 is called the Corradino Correctional Facility Monitoring Board. In so far as relevant, as amended in 2015, it reads as follows:", "“(1) There shall be a Corradino Correctional Facility Monitoring Board, composed of such members as shall be appointed every two years by the President.", "(2) If any vacancy in the Board occurs on account of death, resignation or for any other cause, the President shall, as soon as practicable, appoint another person to fill the vacancy:", "Provided that the Board and the members thereof may act notwithstanding any such vacancy.", "(3) The members of the Board shall exercise such functions as shall be assigned to them by regulations made under article 6 of this Act.", "(4) The Minister responsible for the Prisons, the Chief Justice, the judges, the magistrates and the Attorney-General shall be ex officio Special Visitors of the prisons, and as such it shall be lawful for them to have at any time access to the prisons for the purpose of inspecting such prisons and any of the prisoners therein. They shall enter in the official Visitors’ Book any remarks which they may deem proper in regard to the prisons and prisoners, and the book shall be produced to the members of the Corradino Correctional Facility Monitoring Board on their next visit to the prisons.", "(5) The Director of Prisons shall ensure that all prisoners are made aware of the Corradino Correctional Facility Monitoring Board and its functions thereof and to make available the necessary mechanism in order that the prisoners can make their requests or complaints to the Board.”", "PRISONS REGULATIONS", "18. In so far as relevant the Prisons Regulations, Subsidiary Legislation 260.03, as amended in 2016 and later, but not including the amendments introduced by means of Legal Notice 475 of 2021, Prisons (Amendment No. 2) Regulations, 2021, published in the Government Gazette on 17 December 2021(*), read as follows:", "Regulation 8(1)", "“(1) An unconvicted prisoner may keep, if he has them with him on his admission to prison, or have supplied to him at his expense and retain for his own use, books, newspapers, writing materials and other means of occupation, unless this is objectionable to the Director on the grounds that they are not compatible with the interest of the administration of justice or the security or good order of the prison.”", "Regulation 17", "“(1) Every request by a prisoner to see the Director, the [the Corradino Correctional Facility Monitoring] Board or a member thereof, and any complaint made by a prisoner, shall be recorded by the prison officer to whom it is made and promptly passed on to the Director.", "(2) The Director shall, without undue delay, see prisoners who have asked to see him and take cognizance of any request or complaint made to him.", "(3) Where a prisoner has asked to see the Board, or a member thereof, the Director shall ensure that the Secretary of the Board is informed of the request within a reasonable time.", "(4) Prison officers in direct contact with prisoners, shall, at their request, supply prisoners with an appropriate form approved by the Director for the purpose of making requests, complaints or petitions. Prisoners may, however, submit any request, complaint or petition in any other proper written form and even verbally.”", "Regulation 18", "“(1) If a prisoner so requests the Director may interview him without any other person being present.", "(2) If a prisoner requests an interview with the Board, the Secretary and any two other members thereof may interview him without the Director or any other person being present.", "(3) Every prisoner shall be allowed to make a request or complaint to the Director, to the Board or to the Minister, or to petition the President of Malta, or to an internationally recognized human rights body, under confidential cover.", "(4) Every request, complaint or petition of a prisoner shall be dealt with and replied to without undue delay.”", "Regulation 19", "“(1) Where accommodation is shared it shall be occupied by prisoners suitable to associate with each other in those conditions.", "(2) The accommodation provided for prisoners, and in particular all sleeping accommodation, shall meet the requirements of health and hygiene, due regard being had to climatic conditions and especially the cubic content of air, a reasonable amount of space, lighting and ventilation. Such accommodation shall also allow the prisoner to communicate at any time with a prison officer.”", "Regulation 20", "“In all places where prisoners are required to live or work –", "(a) the windows shall be such as to enable the prisoners to read or work by natural light in normal conditions and shall be so constructed that they can allow the entrance of fresh air, and shall, with due regard to security requirements, present in their size, location and construction as normal an appearance as possible;", "(b) artificial light shall satisfy recognised technical standards and, as regards the cells, shall be capable of being dimmed at night in such a way as to permit supervision.”", "Regulation 21", "“Every prisoner shall be provided with a separate bed and separate bedding appropriate for warmth and health, which shall be kept in good order and changed often enough to ensure its cleanliness in accordance with the orders of the Director.”", "Regulation 23", "“(1) Prisoners shall be required to keep their persons clean, and to this end they shall be provided with such toilet articles as are needed for health and cleanliness, which articles shall be replaced as necessary.", "...", "(3) Each cell shall be provided with a wash hand basin with running water and with a toilet. If there is no flushing equipment each prisoner shall be allowed to have a sufficient quantity of water for keeping the toilet clean.", "(4) Proper toilet facilities shall also be provided in other parts of the prison.", "...”", "Regulation 25", "“(1) Prisoners sentenced to imprisonment shall be provided at the normal times with food which is suitably prepared and presented, and satisfies in quality and quantity modern standards of diet and hygiene, and which takes into account the age, sex, and health of the prisoners, the nature of their work and so far as possible, their religious or cultural requirements.", "(2) The Director shall regularly inspect food provided to the prisoners and shall ensure that no prisoner shall be given food which is less than or different from that which is ordinarily provided, except upon the written recommendation of the Medical Officer.", "(3) The provisions of this regulation shall also apply to unconvicted prisoners and prisoners sentenced to detention, provided that the Director may establish a system under which such prisoners may be supplied with reasonable amount of food at their own expense or at the expense of their family. In no case can such food be passed to other prisoners without the permission of the Director.", "(4) No prisoner sentenced to imprisonment shall be allowed, except as authorised by the Director or by the Medical Officer, to have any food other than that ordinarily provided.", "(5) In this regulation \"food\" includes drinking water.”", "Regulation 28", "“(1) Prisoners not engaged in outdoor work shall be given exercise in the open air for not less than a total of one hour, each day, if weather permits: Provided that exercise consisting of physical training maybe given indoors instead of in the open air.", "(2) The Director may in exceptional circumstances authorize reduction of the period aforesaid.", "(3) The Medical Officer shall decide on the fitness of every prisoner for exercise and physical training, and may excuse a prisoner from, or modify, any such activity on medical grounds. Special arrangements shall be made for remedial physical education and therapy for those prisoners who need it.”", "Regulation 31", "“... (7) The Medical Officer shall inform the Director if he suspects any prisoner of having suicidal intentions, and such prisoner shall be placed under special observation.”", "Regulation 32", "“(1) The Medical Officer shall ensure the care of the physical and mental health of the prisoners and shall also ensure that medical doctors see, under proper conditions and with such frequency as is reasonably required, all sick prisoners, those who report illness or injury, and any prisoner who may require medical attention.", "...", "(3) (a) The Medical Officer shall report to the Director whenever he considers that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment.", "(b) If any prisoner is found to have any infectious or contagious disease, a report thereof shall be made forthwith to the Director by the Medical Officer, under whose direction steps shall be taken to treat the condition and to prevent its transmission to others.”", "Regulation 33", "“ ... (1) (a) Every prisoner shall, as soon as possible after admission, and prior to his release, be separately examined by a medical practitioner of the prison medical services. A record is to be entered of the state of health of the prisoner and other necessary particulars in a register kept for the purpose (...)”", "Regulation 34", "“(1) The Medical Officer shall regularly advise the Director on:", "(a) the quantity, quality, preparation and serving of food and water;", "(b) the hygiene and cleanliness of the prison and prisoners;", "(c) the sanitation, heating, lighting, and ventilation of the prison; and", "(d) the suitability and cleanliness of the prisoners’ clothing and bedding.", "(2) The Medical Officer shall at least once every six months make a report to the Director on the health of the prisoners and on the general sanitation of the prison.”", "Regulation 37", "“The medical services of the prison shall seek to detect and shall treat any physical or mental illness or defect or drug-related condition which may affect a prisoner’s well-being in prison or which may impede a prisoner’s re-settlement after release. All necessary medical, surgical and psychiatric services available without charge to the community outside prison shall also be provided to the prisoner.”", "Regulation 39", "“(1) The Medical Officer shall ensure that the prison medical service keeps proper medical records for each prisoner, and such other records as may be necessary including the times of attendance of medical practitioners, all examinations, inspections and visits carried out, all prescriptions and orders issued, any advice given to the Director relating to any prisoner or prison officer. The stocks of medicines and medical equipment, and generally of all matters relevant to the performance of the duties pertaining to the prison medical service.", "(2) All records under this regulation shall be kept in the prison and shall be accessible, subject to their confidentiality, to the Minister, the Director, the Board and to any properly authorised person: Provided that as regards the medical records of prisoners the provisions of regulation 7(4) [1] shall, mutatis mutandis, apply. (...) ”", "Regulation 47", "“An adequately stocked library containing books and periodicals of a suitable instructional and recreational range shall be provided at the prison and, subject to any directions of the Director, every prisoner shall be allowed to have library books and periodicals and to exchange them. The library shall, as far as practicable be organised in co-operation with public and community library services.”", "Regulation 51", "“(1) Except as provided by these regulations, every letter and communication to or from a prisoner may be read or examined by the Director or a prison officer deputed by him, and the Director may stop any letter or communication if its contents are objectionable or if it is of inordinate length.", "(2) Every visit to a prisoner shall take place within the sight of a prison officer.", "(3) Visits to a prisoner may, with the consent of the Director, take place within the hearing of a prison officer.", "(4) No object may be handed over to a prisoner during any visit without the approval of the Director.", "(5) The Minister may give directions, generally or in relation to any visit or class of visits, concerning the days, times, duration and any other condition of visits to prisoners.”", "Regulation 52", "“(1) Subject to the provisions of sub regulation (11), an unconvicted prisoner may send and receive as many letters and may receive as many visits within such limits and subject to such conditions, as the Minister may direct, either generally, or in particular cases.", "...", "(3) The Director may allow a prisoner to send or receive an additional letter or visit where necessary for his welfare or that of his family.", "(4) The Director may allow a prisoner entitled to a visit to send and receive a letter instead.", "(5) The Director may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement.", "(6) A prisoner shall not be entitled under this regulation to receive a visit from any person other than those as are referred to in regulation 50 except with the leave of the Minister.", "(7) Subject to any direction of the Minister under regulation 51(5), the duration of any visit and the number of visitors in respect of any particular visit shall be established by the Director according to the needs of security, discipline and good order.", "(8) Visits, other than those referred to in regulations 53 and 54,shall take place in the room or rooms designated for such purpose by the Director who may also permit visits to take place outside such rooms on special grounds and under appropriate supervision.", "(9) A full record shall be kept in an appropriate register of all visits to prisoners and such record shall include the date and time of the visits and particulars relating to the identity of the visitor.”", "Regulation 53", "“(1) The legal adviser of a prisoner in any judicial proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing the said prisoner in connection with those proceedings.", "(2) With the permission of the Director, the legal adviser of a prisoner may interview him in connection with legal matters other than those referred to in the foregoing sub regulation.", "...", "(4) The interviews referred to in the foregoing sub regulations shall be conducted out of hearing but in the sight of a prison officer.", "(5) Visits under this regulation shall take place in a room different from the room or rooms where visits referred to in regulation 52 are held, but shall also be recorded in the register of visits under sub regulation (9) of that regulation.”", "Regulation 54(1)", "“A prisoner who is a party to any legal or judicial proceedings may correspond with his legal adviser in connection with those proceedings and, unless the Director has reason to suspect that any such correspondence contains matter not relating to the proceedings, the said correspondence shall not be read or stopped under regulation 51(1).”", "Regulation 59(1)", "“Telephone calls by prisoners shall be subject to the needs of security, discipline and good order of the prison and shall be considered as a privilege in terms of regulation 13. All telephones within the Prisons shall be equipped for monitoring and recording of conversations, and the Director may authorise the intentional hearing of such conversations to safeguard members of the public or the security or safety within the prison, or to prevent the furtherance of any illegal activity.”", "Regulation 67", "“(1) Where it appears desirable, in the interests of security or for the maintenance of good order or discipline or in his own interest, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Director may arrange for the prisoner’s removal from association accordingly. During such periods the Director may also order the cancellation of visits, other than those referred to in regulations 53, 54 and 55.", "(2) A prisoner shall not be removed from association under the foregoing sub regulation for a period of more than forty-eight hours without the authority of the Minister. An authority given under this sub regulation shall be for a period not exceeding fifteen days, but may be renewed for similar periods. Such an authority shall be immediately notified to the Chairman of the Board.", "(3) The Director may, in his discretion, direct that the prisoner resume association with other prisoners, and shall so direct if the Medical Officer advises accordingly on medical grounds:", "Provided, that when such removal had been effected under the Minister’s authority in terms of the preceding sub regulation, the Minister and the Chairman of the Board shall be notified immediately of such direction.”", "Regulation 73", "“Particulars of every case dealt with under regulations 67,68, 69 and 71 shall be forthwith recorded by the Director in a register kept for the purpose.”", "Regulation 78", "“(1) If the Director finds a prisoner guilty of an offence against discipline he may impose one or more of the following punishments: ...", "(f) cellular confinement not exceeding thirty days; ...”", "Regulation 82", "“(1) Cellular confinement in respect of offences against discipline shall be undergone in a cell which meets the standards of these regulations.", "(2) The Medical Officer shall monitor the condition of prisoners undergoing cellular confinement and shall advise the Director if the termination or alteration of the relative punishment is considered necessary on grounds of physical or mental health. If the Director, acting on such advice, terminates or alters the punishment of cellular confinement, he shall substitute for it an alternative punishment specified in regulation 78.", "(3) It shall also be the duty of the Medical Officer to monitor the condition of any prisoner sentenced to solitary confinement by any court.”", "Regulation 90", "“... (3) Saving his powers to give orders, whether verbally or in writing, as he may deem fit for the proper running of the daily administration of the prison, the Director may also make orders in writing relating to any aspect of the administration of the prison and the maintenance of discipline, security and good order therein, as well as to any other matter forming part of his duties as set out in these regulations: Provided that nothing in such orders shall be contrary to the provisions of the Act or of these regulations.", "(4) The Director shall take strict care to ensure that these regulations and any direction or order given thereunder, as well as any order relating to the prison, are complied with and enforced. (...)”", "Regulation 107*", "“It shall also be the duty of the Board to hear and decide upon, as soon as practicable, any request or complaint made to it by a prisoner including on matters relating to the conditions of their detention directly to the Secretary or to any of its members during the course of a visit or inspection.”", "Regulation 108*", "“(1) The decisions of the Board shall be taken by a majority of the members present and voting. In the case of an equality of votes the Chairperson shall have a casting vote in addition to his original vote.", "(2) The decisions of the Board shall not be binding upon the Director but it shall be the duty of the Director to take serious cognizance of the recommendations of the Board following a decision taken as provided in sub regulation (1) and to enter into a dialogue with the Board on possible implementation measures.", "Subject to the provisions of sub regulation (3), where the Director, or any other prison officer acting on his behalf, is of the opinion that the recommendations of the Board cannot be implemented for reasons which are in the best interests of the prison administration, an explanation in writing of these reasons shall, within one month of the date of receipt of the Board’s recommendations, be forwarded to the Chairperson of the Board and copied to the Minister, or to a person delegated by him. The Minister, or the person delegated by him, may confirm or vary the decision of the Director.", "(3) Where the recommendation of the Board entails, in the opinion of the Director, a security issue requiring strict confidentiality the Director, within the period of one month mentioned in sub regulation (2), shall make a statement to this effect to the Chairperson of the Board and shall concurrently submit a personal report directly to the Minister, or to the person delegated by him, giving his own comments on the recommendation, together with his opinion as to whether or not such recommendation should be accepted. The Minister’s decision, or that of the person delegated by him, shall be final and conclusive.", "(4) It shall also be lawful for the Board to decide on complaints and requests made by the prisoners relating to the conditions of their detention within a period of two months of the date of receipt of the request or complaint and after consulting the Director in relation to the said requests and complaints.”", "Regulation 114", "“The Board shall inquire into any report made to it, or any information otherwise coming to its knowledge, that a prisoner’s health, mental or physical, has been or is likely to be injuriously affected by any conditions of his imprisonment.”", "RELEVANT INTERNATIONAL MATERIALS [2]", "COVID-19", "19. The Council of Europe issued a number of statements in connection with the Covid-19 pandemic and prisons, as follows:", "20. The Council of Europe Secretary General’s Toolkit for member States “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis” (Doc. SG/Inf(2020)11 of 7 April 2020) -", "https://rm.coe.int/sg-inf-2020-11-respecting-democracy-rule-of-law-and-human-rights-in-th/16809e1f40", "21. The Statement of the Council of Europe Commissioner for Human Rights made on 6 April 2020: “COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe” -", "https://www.coe.int/en/web/commissioner/-/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-rights-of-prisoners-in-europe", "22. Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic issued on 20 March 2020 - European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Council of Europe -", "https://rm.coe.int/16809cfa4b", "and its follow up of July 2020 https://rm.coe.int/16809ef566", "23. Covid-19 Related statement by the members of the Council for penological co-operation working group (PC-CP WG) CPT/Inf(2020)13 - https://rm.coe.int/pc-cp-wg-covid-19-statement-17-04-2020/16809e2e55", "and its follow up of October 2020 https://rm.coe.int/pc-cp-2020-10-e-rev-follow-up-to-pc-cp-wg-statement-covid-19/16809ff484", "24. On 15 March 2020 the World Health Organisation (‘WHO’) issued interim guidance concerning the Pandemic entitled “Preparedness, prevention and control of COVID-19 in prisons and other places of detention” -", "https://apps.who.int/iris/bitstream/handle/10665/336525/WHO-EURO-2020-1405-41155-55954-eng.pdf?sequence=1&isAllowed=y", "GENERAL PRISON STANDARDS", "25. The United Nations Standard Minimum Rules for the Treatment of Prisoners -", "https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf", "26. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules - Adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies -", "https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8d25", "27. Combatting ill-treatment in prison, Council of Europe handbook -", "https://rm.coe.int/combating-ill-treatment-in-prison-2-web-en/16806ab9a7", "28. Good governance for prison health in the 21st century. A policy brief on the organization of prison health (2013), compiled by the United Nations Office for Drugs and Crime and the WHO, regional office for Europe -", "https://www.euro.who.int/__data/assets/pdf_file/0017/231506/Good-governance-for-prison-health-in-the-21st-century.pdf", "29. Office of the High Commissioner for Human Rights, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019 -", "https://www.ohchr.org/Documents/Issues/RuleOfLaw/Violence/A_HRC_42_20_AUV_EN.pdf", "OTHER MATTERSSolitary confinement", "Solitary confinement", "Solitary confinement", "30. Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies (link at paragraph 26 above), in so far as relevant at the time of the present case, reads as follows:", "“53.1 Special high security or safety measures shall only be applied in exceptional circumstances.", "53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.", "53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.", "53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.", "53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.", "53.6 Such measures shall be applied to individuals and not to groups of prisoners.", "53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.", "...", "60.6. a Solitary confinement, that is the confinement of a prisoner for more than 22 hours a day without meaningful human contact, shall never be imposed on children, pregnant women, breastfeeding mothers or parents with infants in prison.", "60.6. b The decision on solitary confinement shall take into account the current state of health of the prisoner concerned. Solitary confinement shall not be imposed on prisoners with mental or physical disabilities when their condition would be exacerbated by it. Where solitary confinement has been imposed, its execution shall be terminated or suspended if the prisoner’s mental or physical condition has deteriorated.", "60.6. c Solitary confinement shall not be imposed as a disciplinary punishment, other than in exceptional cases and then for a specified period, which shall be as short as possible and shall never amount to torture or inhuman or degrading treatment or punishment.", "60.6. d The maximum period for which solitary confinement may be imposed shall be set in national law.", "60.6. e Where a punishment of solitary confinement is imposed for a new disciplinary offence on a prisoner who has already spent the maximum period in solitary confinement, such a punishment shall not be implemented without first allowing the prisoner to recover from the adverse effects of the previous period of solitary confinement.", "60.6. f Prisoners who are in solitary confinement shall be visited daily, including by the director of the prison or by a member of staff acting on behalf of the director of the prison.”", "31. In so far as relevant, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 21 st General Report on the CPT’s activities, 2011, deals with solitary confinement at pages 39-50, and can be accessed -", "https://rm.coe.int/1680696a88", "32. See below the findings of the CPT in relation to solitary confinement in Malta, at point 90 of the report.", "CPT report Malta (2016)", "33. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 25 October 2016, in so far as relied on by the applicant, reads as follows:", "“56. The delegation noted that some renovations had been undertaken in CCF (for example, of Divisions IV and VII). Further, two of the previously most problematic divisions (Divisions VI and XV) had been closed down. Nevertheless, the remaining divisions provided generally poor living conditions for the inmates, and this was particularly the case in Divisions II, III and XIII. While most cells were sufficient for single occupancy (measuring some 9m²), the dormitory rooms at CCF (for example in Division XIII) were cramped, with nine inmates held in approximately 30m² (i.e. significantly less than the minimum standard of 4m² of living space per prisoner in a multiple-occupancy cell recommended by the CPT).19 Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells (especially on the ground floor of Division XIII). The in-cell toilets were unscreened, had mal-functioning flushes, and the water was cut off intermittently. This was particularly problematic given an outbreak of diarrhoea among the prisoners during the delegation’s visit (see paragraph 76). Prisoners did not believe that in-cell water from the sinks was safe to drink and the staff concurred with them. Many prisoners, especially those inmates who only lived off the basic €27 monthly allowance, complained to the delegation about the lack of ready access to safe drinking water and the need to buy bottled water. The divisions had individual or shared exercise yards, which consisted merely of a stretch of bare tarmac. They were not equipped with any means of rest (let alone any sports or recreational equipment) or any shelter to protect prisoners from sun or rain. The yards were extremely hot, and at the time of the visit, the delegation noted that not a single prisoner made use of them during the day.", "...", "76. In the course of the delegation’s visit to CCF, there was an outbreak of diarrhoea. On 4 September 2015, 15 prisoners complained of diarrhoea at CCF, followed by another 20 inmates the following day. Various stool samples from inmates were also sent by CCF to the hospital laboratory on the evening of 4 September. Health Inspectors attended the prison on the morning of 5 September and took samples of water and food from the kitchen. Initially, prison management stated that all inmates affected had been in single cell accommodation and remained there; however, the delegation found nine of the affected prisoners were sharing cells with at least one other person and one inmate was in a large dormitory. The prison management explained that this was their first experience of a new phenomenon and the delegation observed that they were unsure how to contain and deal with the outbreak. On 9 September, some five days after the outbreak had commenced, it was confirmed that the cause of the outbreak was salmonella, which was presumed to have come from tuna in the kitchen. In total, 41 prisoners had been affected by this outbreak.", "...", "77. The CPT knows that the risk of disease transmission is enhanced in a closed institution (such as a prison), in particular when general hygiene and environmental conditions are poor. Consequently, prison health-care services should adopt a proactive approach, with a view to minimising the risk of the spread of certain infections. The CPT recommends that the Maltese authorities put in place robust policies to deal immediately with health (and other) crises that may take place within the prison, including adopting a proactive approach, with a view to minimising the risk of the spread of certain infections and ensure the speedier analysis of test results. To this end, regular health checks of the food quality, storage procedures and hygiene standards and procedures in the CCF kitchen should be undertaken.", "...", "90. As regards solitary and cellular confinement for discipline purposes, section 68 of the Prison Regulations stipulates that ‘the Director may order a violent prisoner to be confined temporarily in an appropriate cell [and] if the Director keeps such order in force for more than forty-eight hours he shall consult the Medical Officer and shall inform the Chairman of the Board’. In CCF, solitary confinement on account of violence was resorted to in one of three adjoining cells, built in 2000 and designated as single rooms used for medical and disciplinary isolation purposes, situated next to the Infirmary. Each of the three cells had a bed plinth with a mattress and a toilet annexe. The cells had access to natural light and adequate ventilation and each had a call-bell. From examination of the relevant registers and interviews with prisoners and staff, it was clear that these cells were only occasionally used. Of the nine placements from January 2015 until the date of the CPT delegation’s visit, seven had been for medical observation reasons and two for disciplinary purposes. The disciplinary cases had both involved the same person and each had lasted less than 48 hours. The seven medical cases had lasted seven, four, seven, five, two, one and three days respectively. As regards the sanction of cellular confinement for up to a period of 30 days, the CPT understands that this measure means that the inmate is kept in his or her cell. Therefore, in most cases in CCF (given that most of the prisoners have single-cell accommodation) this measure means being placed in effective solitary confinement for 30 days. The CPT recalls that solitary confinement as a disciplinary sanction should not last for a period of more than 14 days consecutively. Thus, it recommends that the Prison Regulations be amended to reflect this.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "34. The applicant complained about his conditions of detention which he considered were in breach of Article 3 of the Convention, which reads as follows.", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "AdmissibilityNon-exhaustion of domestic remedies", "Non-exhaustion of domestic remedies", "Non-exhaustion of domestic remedies", "(a) The parties’ submissions", "(i) The Government", "35. The Government submitted that the applicant had failed to exhaust domestic remedies as he had failed to raise these complaints before the constitutional jurisdictions. While the Court had previously found that such proceedings were too lengthy for the purposes of complaints under Article 3 of the Convention, in relation to conditions of detention, those considerations were no longer valid. This was shown by the speed within which the applicant’s complaints under Articles 5 and 6 of the Convention had been determined, namely less than seven months over two levels of jurisdiction, during a pandemic. It followed that the domestic courts adequately responded to cases requiring expeditious and urgent conclusions. The Government further relied on the cases of Alfred Degiorgio v. the Attorney General (no. 29/2019), instituted on 26 February 2019, decided at first instance on 28 February 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Victor Buttigieg (Joseph Victor) v. the Attorney General (no. 97/2018) instituted on 28 September 2018, and decided at first instance on 11 March 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Onor. Simon Busuttil v. the Attorney General (no. 86/2017) instituted on 19 October 2017, decided at first instance on 12 July 2018 and, on appeal, by the Constitutional Court on 29 October 2019, which concerned other Convention complaints. The Government explained that cases concerning ongoing ill ‑ treatment, in detention, were extremely rare and it was therefore difficult to provide examples of cases under Article 3, with similar circumstances as those in the instant case, to show the speed with which they were decided. Moreover, they noted that this avenue of redress was still open to the applicant.", "36. They further noted that raising such complaints in the context of his bail applications had not been an appropriate course of action as such courts were not intended to determine the Convention compatibility of the applicant’s conditions of detention, but rather whether he qualified for bail.", "37. The Government further submitted (in the context of the merits of the complaint) that, despite his allegations (see paragraph 40 below), the applicant had not filed complaints with the Corradino Correctional Facility Monitoring Board which was specifically tasked to hear complaints concerning detention conditions. Furthermore, the Government questioned whether the matters raised by the applicant in respect of his confidential communication with lawyers could be relevant for a claim under Article 3 since such issues were normally raised in a complaint under Article 6 or Article 8, or exceptionally Article 34. They highlighted in particular that according to the Court’s case-law, national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries.", "(ii) The applicant", "38. The applicant submitted that he had not lodged constitutional proceedings in respect of these complaints, because unlike the ones under Article 5 which in his view would be dealt with more swiftly (as was in fact the case), he considered that they would take too long, as shown by other domestic examples. Notably, a constitutional application filed by an activist in September 2020, challenging the CCF authorities’ prohibition of his access to the prison premises (for the purpose of assessing the veracity of claims of egregious prison conditions by prison inmates), was still being heard by the Constitutional Court on 25 June 2021, i.e. nine months later.", "39. He further noted that in his applications before the Criminal Court of 1 April 2020 and 16 April 2020 (see Fenech (dec.), cited above, §§ 15 ‑ 16 and 29), which were dismissed, he had explicitly raised the issues of the risk to his life and health in detention due to Covid-19, and the alleged violation of Article 3 of the ECHR owing to the prison conditions, respectively. After that, following a further request concerning access to his lawyer, by a decree of 24 November 2020 (not submitted to the Court) (see paragraph 9 above), the Court of Magistrates declined to intervene, claiming that it had no jurisdiction on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. In consequence the applicant had no effective judicial remedy to pursue.", "40. According to the applicant, during his solitary confinement from 30 November 2019 till 3 January 2020, he complained to the prison authorities every day, requesting them to remove him from such isolation, but his complaints were always rejected. The applicant further submitted that he had approached the prison director for the rectification of his poor prison conditions several times – approximately fifteen times during informal meetings, as well as three formal requests – and had been reassured each time that his conditions would change. However, his conditions never materially changed. Thus, the prison’s internal complaints mechanism did not exist in practice. Lastly, the applicant had also complained, to no avail, about the lack of confidentiality in communication with his lawyers, both with the detention authorities and the Court of Magistrates (see paragraph 9 above).", "(b) The Court’s assessment", "41. The Court refers to the general principles stemming from its case ‑ law and the assessment of the constitutional redress proceedings it made in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, §§ 72-76 and 82-86, 29 October 2015) and reiterated in, for example, Yanez Pinon and Others v. Malta (nos. 71645/13 and 2 others, § 76, 19 December 2017) and Abdilla v. Malta (no. 36199/15, § 24, 17 July 2018), finding that detainees in situations similar to that of the applicant in the present case were not required to have recourse to constitutional redress proceedings, and in the latter case a consequent violation of Article 13 taken in conjunction with Article 3 (§ 72). The Court further refers to its more recent findings confirming those considerations in Feilazoo v. Malta (no. 6865/19, § 59, 11 March 2021).", "42. The Court notes that the cases relied on by the Government, including that of the applicant, were decided by the constitutional jurisdictions in periods ranging between four and a half months to two years. Such periods cannot be considered to conform to a timely determination of complaints of inhuman conditions of detention and to put an end to the treatment complained of rapidly (compare Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, § 97, 8 January 2013, and contrast, Domján v. Hungary (dec.), no. 5433/17, § 21, 14 November 2017, and Antanasov and Apostolov v. Bulgaria (dec.), nos. 65540/16 and 22368/17, § 52, 27 June 2017, concerning periods of between fourteen and seventeen days). The Court thus finds no reason to alter the conclusions already reached in the above ‑ cited cases against Malta. Thus, while the Court cannot rule out the possibility that constitutional redress proceedings dealt with speedily may in a future case be considered an effective remedy for the purposes of complaints of ongoing conditions of detention under Article 3, current domestic case-law does not allow the Court to find that the applicant was required to have recourse to such a remedy concerning the crux of his complaints (see paragraph 45 below).", "43. In so far as the parties referred to the Corradino Correctional Facility Monitoring Board (also known as the Board of Visitors), the Court notes that the Government have not raised this in their exhaustion objection, nor – at any stage of their submissions – have they claimed that this was a remedy which the applicant should have exhausted before bringing proceedings before the Court. In fact, the Court has already had the opportunity to examine this procedure and found that it fell short of Article 13 requirements (see Story and Others, cited above, § 78). Nothing has been brought to the Court’s attention to dispel the Court’s concerns set out at the time, which prima facie were still relevant in 2020 when the applicant raised his complaints before the Court, despite slight changes to the law in 2016. The Court further observes that while the regulations and procedure pertaining to the Board were again recently amended, via Legal Notice 475 of 2021 – Prisons (Amendment No. 2) Regulations, 2021, Government Gazette of Malta No. 20,752 – 17.12.2021, the parties have not brought this to the Court’s attention, and thus they fall outside of the scope of the Court’s examination.", "44. Indeed the Court notes that in Story and Others, cited above, the Court had solicited the Government to introduce a proper administrative or judicial remedy capable of ensuring the timely determination of such complaints, and where necessary, to prevent the continuation of the situation (ibid., § 85). More than six years later the situation remained unchanged (see also Abdilla, cited above, § 71). It follows that the Government’s objection of non ‑ exhaustion of domestic remedies must be dismissed in relation to the main complaint under Article 3.", "45. However, other considerations apply as regards the applicant’s complaints, which he raised under Article 3, concerning the use of surveillance cameras in his cell or during visits with his legal counsel and the interception of telephone calls or documents brought to the prison by his legal counsel, as expounded in his observations.", "46. The Court observes that it has held that placing a person under permanent video surveillance whilst in detention – which already entails a considerable limitation on a person’s privacy – has to be regarded as a serious interference with the individual’s right to respect for his or her privacy, as an element of the notion of “private life”, and thus brings Article 8 of the Convention into play (see Van der Graaf v. the Netherlands (dec.), no. 8704/03, 1 June 2004, and Vasilică Mocanu v. Romania, no. 43545/13, § 36, 6 December 2016). Similarly, the Court has held that, while the surveillance of communication in the visitation area in prison may legitimately be done for security reasons, a systemic surveillance and recording of communication for other reasons represents an interference with the right to respect for private life and correspondence under Article 8 of the Convention. In this context, Court has placed particular emphasis on the requirement of lawfulness, including clarity and foreseeability of the relevant law (see Wisse v. France, no. 71611/01, §§ 29 ‑ 34, 20 December 2005, and Doerga v. the Netherlands, no. 50210/99, §§ 44-54, 27 April 2004, concerning the tapping, recording and retention of telephone conversations). Such measures require an adequate framework regulating their use and guaranteeing safeguards against abuse by the State (see, for example, Gorlov and Others v. Russia, nos. 27057/06 and 2 others, §§ 97-100, 2 July 2019).", "47. In this connection the Court notes that the applicant’s complaints in this respect, as elaborated in his observations, constitute autonomous complaints under Article 8 of the Convention, and thus should have been raised before the constitutional jurisdictions which are effective remedies for the purposes of that provision (see, for example, Story and Others, cited above, § 132, and Knoess v. Malta, (Committee dec.), no. 69720/11, §§ 75 ‑ 76, 9 December 2014). Thus, the Court considers that in the absence of any issues arising under Article 34 (see, a contrario, Peňaranda Soto v. Malta, no. 16680/14, §§ 99-102, 19 December 2017, and Feilazoo, cited above, § 124), in the circumstances of the present case, it would be contrary to the principle of subsidiarity to assess the case under Article 3, as stands before it, that is, including the above-mentioned issues falling more appropriately, if not exclusively, under Article 8.", "48. Without prejudice to the applicant’s possibility of bringing the latter complaints again before the Court at a later stage – after having exhausted domestic remedies in that respect (see, for example, Roche v. Malta (Committee dec.), nos. 42825/17 and 66857/17, § 102, 12 June 2018, and, in practice, Cutajar v. Malta (Committee dec.), no. 55775/13, 23 June 2015) –the Court considers that at this point in time this part of the complaint under Article 3 must be declared inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies, and thus cannot form part of the scope of the applicant’s complaint under Article 3.", "Conclusion", "49. The Court notes that the complaint under Article 3, within the scope delimited above, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe period from 30 November 2019 to 3 January 2020", "The period from 30 November 2019 to 3 January 2020", "The period from 30 November 2019 to 3 January 2020", "(a) The parties’ submissions", "(i) The applicant", "50. The applicant’s submissions at the time when he lodged his application are set out in paragraph 12 above. In his later observations he admitted that the cell had a window but explained that only one small part of the three-part window could be opened, which did not allow adequate ventilation, and the cell lacked temperature control. The clothes provided did not protect from the cold and the harsh artificial lighting switched on all through the night was oppressive and prevented any semblance of peace or relaxation. Challenging the Government’s submissions and the affidavit by the prison director, the applicant reiterated that he had never been allowed to go outside for sunlight or fresh air. During his one-hour break, he was taken to a room adjacent to the solitary confinement chamber, and was expected to bathe, clean the cell, exercise, and call his family. Moreover, the cell did not have any running water or toilet paper, and the applicant had no access to any basic necessities (water, food, cigarettes) between the hours of 10 p.m.- 6 a.m. and he had been forced to tolerate the foul smell and lack of hygiene as a result of the non-flush toilet. Admitting that this could be flushed from the outside, he claimed that such service was not available during nighttime. Thus, if he used the toilet during these hours, he had no means to flush but had to endure these conditions until 6 am. To add to the humiliation, a CCTV camera pointed directly on the toilet with no shielding or screening to protect the applicant’s privacy or dignity. The applicant insisted that he had not been allowed to speak to his wife or family at all for the first fourteen days, and while he did visit the Chaplain once every week, this had not constituted sufficient human or personal contact.", "51. The applicant relied on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( 21 st General Report on the CPT’s activities, 2011), the United Nations General Assembly ( United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175, Rule 45) and the Council of Europe’s European Prison Rules (See Relevant International Materials above), as well as the Court’s case-law, all setting out standards relating to solitary confinement.", "52. He noted that although in Malta, solitary confinement could be imposed pursuant to a criminal conviction under Article 9 of the Criminal Code (see paragraph 16 above) or else as a disciplinary sanction under Prison Regulation (hereinafter ‘Regulation’) 82 (see paragraph 18 above) (both of which didn’t apply in his case), there was no law regulating the solitary confinement applied to him as a purportedly protective measure. Moreover, whilst according to the Criminal Code solitary confinement “shall not together exceed fifteen days in any one interval”, the Prisons Regulations contradictorily allowed solitary confinement on disciplinary grounds for a period of thirty days. Despite recommendations by the CPT that the Prisons Regulations be amended such that the maximum period of solitary confinement would be fourteen days (see paragraph 33 in fine above), no such changes ensued.", "53. The applicant considered that the prison authorities had unfettered and unregulated “discretion” and the manner in which it had been exercised in his case had been retributive, abusive, and dangerous. He believed he was being punished due to the nature of the charges against him, or for having tested positive for cocaine. Moreover, the decision on his solitary confinement had been taken by the prison director without, at the time, providing any written reasoning or justification for this extreme course of action. The applicant had merely orally and briefly been informed of this, without being provided with detailed reasons, any adequate support, or any avenue for complaint or appeal.", "54. The Government’s attempts to substantiate their claim (that it had been a protective measure), were based on ‘a single entry by a medical officer in the bottom corner of a report dated 30 November 2019’, which in the applicant’s view appeared to have been appended to the medical report at a later date, to provide retroactive justification for the abusive treatment. The report, inter alia, had noted the good health and calm nature of the applicant, marked ‘NIL’ against the question of ‘Withdrawal Symptoms’, and had not noted any other danger to his health or psychiatric issues, nor found any requirement for Methadone or any detox, and the applicant’s last cocaine use had been a full (sic.) week before the medical assessment. Then, inexplicably, the report had concluded that the applicant was showing an “idea of self ‑ harm” and “suicidal intention” and needed to be placed in a single room. Strikingly, the medical officer did not check the boxes for ‘Psychiatrist’ and ‘Psychological’ review as being necessary on the very same page. Indeed, the applicant had only been checked by a psychologist once at the beginning of his detention, and he had not been placed on regular supervision by a medical officer at any point during the thirty-five days, nor had he been offered any rehabilitation programme. Further, the medical report did not detail what the risks had been, why the prison authorities concluded that solitary confinement, without proper clothing or proper bedding, would have provided any required support or reduced the danger and the applicant had never been notified of his purported medical risk. Equally, the prison director’s decision to move the applicant from solitary confinement to a mixed dormitory had not been based on medical evaluation or risk – as none had been carried out. Nor had any written decision been communicated to the applicant or his lawyers regarding his change in detention conditions.", "55. The applicant submitted that the Government’s claim that the applicant had also been kept in isolation to reduce the risk of hindering the investigation had to be dismissed as untruthful. Indeed, no such risk assessment had been undertaken neither at the time of incarceration nor at the time of his move into a mixed dormitory. Instead, the applicant’s treatment had been consistent with the CCF’s brutal policy of dealing with those who may have drug addiction problems. Relying on various press articles, the applicant submitted that – at date of submissions, July 2021 – twelve prisoners had died whilst serving prison sentences over the last three years, with four of them being supposed suicide cases, while six were of cases where the detainees had been found “unconscious” or died under mysterious circumstances in their cell. One example, which fuelled questions about the system used by the prison in dealing with drug addicts and with people contemplating suicide was that of a young woman who died following a suicide attempt after having been denied a drug rehabilitation programme. The applicant referred to the self-proclaimed attitude of the prison director – a former army officer known for his military-style leadership – whose methods had been questioned and several had asked for his resignation. In January 2021, it was revealed in public that a notice hung on the walls of the prison, signed by the prison director which read: “The inmate does not fear the police, the judge or the jury. Therefore, it is our job to teach fear. Welcome to prison!”. The notice had since been taken down, however, the prison authorities’ continuous attempt to conceal the real circumstances of the prison conditions had also been noted by members of the press.", "(ii) The Government", "56. The Government submitted that while it was true that during these thirty-four days the applicant was kept separately in a single room, his detention did not amount to solitary confinement as defined in the European Prison Rules of 2020 (see paragraph 30 above), or the Maltese Criminal Code. During such time, the applicant had had regular (unlimited) meetings and calls with his legal counsel for long stretches of time as well as regular contact with the prison authorities, including the Chaplain, and contact with his family. Furthermore, the prison division in which the single rooms had been situated was designed in such a way that the inmates were able to speak with one another, albeit from behind their cell door. The Government noted that the Court had previously held that the separation of an inmate from the rest of the prison population ‘for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.’ In this case, the applicant had not been subject to complete sensory deprivation nor total isolation.", "57. The applicant had been placed in a single room, upon the decision of the prison director, upon medical advice, for security and protective reasons, as, following his medical examinations on entry, it transpired that he was positive for cocaine and that he had a history of drug abuse (heroin and marijuana). The Government noted that that his initial drug result, together with the fact that he had been accustomed to a lavish lifestyle, made him a risk profile. In his affidavit the prison director noted that CCF was ‘Drug Free’ and explained that it was the facility’s policy for everyone testing positive for drug use not to be allowed to mix with other inmates until they tested negative; He explained that this was the applicant’s case, where he had remained in the cell at issue until 3 January 2020, date when the medical staff declared that, according to regular testing, the applicant was no longer positive for cocaine; Having determined that he was mentally stable, arrangements were put in place for his transfer to another division.", "58. According to a report of 30 November 2019, submitted to the Court, the medical doctor had suggested that the applicant be kept under constant watch and that he be given “non-tearable clothing” and a “Luna blanket”. In so far as the applicant shed doubt on the authenticity of those findings, the Government noted that the notes had been clearly written by the same person with the same handwriting and the same pen on the same day, thus the applicant’s allegations in this respect were false and unsubstantiated. The Government explained that the single room was designed to reduce the risk of self-harm and that the applicant had been subject to continuous watch, via CCTV, for the same purpose – contrary to his allegation that he had not been monitored. It was for the same reasons that the applicant had been provided only with shorts and a T-shirt at the time, and that the single room had not contained a proper bed frame. He had, however, been provided with two blankets and could have requested more.", "59. The Government also considered that placement in a single room limited the risk of someone communicating with the applicant and attempting to hinder the important investigations being carried out at the time into the assassination. According to the Government all decisions concerning placements of inmates were taken following a thorough risk assessment to ensure that the prison remained as calm and as safe an environment as possible and that any tensions between inmates were avoided.", "60. The Government explained that the room had been equipped with a Turkish-style squat toilet and while no flushing had been available (to avoid ligature points and prevent from self-harm), the applicant could, at any time during the night or day (contrary to that alleged by the applicant), ask the prison guards to flush the toilet from outside the cell. It had also had a large window which could be freely opened by the applicant for fresh air and ventilation. As regards the continuous lighting complained of by the applicant, while it was true that there was no such control from inside the cell, again the guards could see to this. The reason for this design was, once again, to avoid ligature points to the greatest extent possible. The applicant had had sixty minutes of out-of-cell activity during which he had been expected to clean his cell, take a shower and make a phone call (other than to his legal counsel – to whom phone access was unlimited) but he had not been required to eat within that same hour. While cigarettes had not been allowed during the night, a cigarette could be given to the applicant every hour throughout the rest of the day.", "61. Overall, the Government submitted that the applicant’s submissions had been littered with inaccuracies, contradictions, and outright fabrications. On occasions he had changed his submissions only once the Government had provided proof of his false allegations, as for example, in relation to the claim that the cell had only artificial lighting, which then had been turned around to say that the window did not provide adequate ventilation.", "(b) The Court’s assessment", "(i) General principles", "62. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Enea v. Italy [GC], no. 74912/01, § 55, ECHR 2009; Ramirez Sanchez v. France [GC], no. 59450/00, §§ 117-119, ECHR 2006 ‑ IX, and the case ‑ law cited therein).", "63. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (ibid., § 118).", "64. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured. The measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (ibid., § 119, and the case ‑ law cited therein).", "65. The Court reiterates that removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment and solitary confinement is not in itself in breach of Article 3. In assessing whether solitary confinement falls within the ambit of Article 3, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned (see Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005, and Rzakhanov v. Azerbaijan, no. 4242/07, § 64, 4 July 2013). On the other hand, complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason (see Ramirez Sanchez, cited above, § 120). Where a period is particularly lengthy, a rigorous examination is called for by the Court in order to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant’s physical and mental condition was compatible with his continued solitary confinement (ibid., § 136).", "66. In order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner’s welfare and the proportionality of the measure. First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the European Prison Rules. Second, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Third, the authorities’ decisions should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner’s circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Finally, a system of regular monitoring of the prisoner’s physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances (ibid., § 139, and Onoufriou v. Cyprus, no. 24407/04, §§ 119 ‑ 121, 7 January 2010). Such safeguards are relevant even in cases entailing only relative isolation (see, for example, Rzakhanov, cited above, § 73, and A.T. v. Estonia (no. 2), no. 70465/14, § 73, 13 November 2018).", "(ii) Application of the principles to the present case", "67. The Court notes that the situation in the present case was not one of solitary confinement imposed as a sanction resulting from a disciplinary measure, or a conviction – the only two confinement regimes provided in domestic law (see paragraphs 18 and 16 above). Nor has the Government claimed that the situation was one of removal from association falling under Regulation 67 (see paragraph 18 above), although this Regulation could have been applicable to the applicant’s situation.", "68. The Government submitted that the decision to keep the applicant in a single cell had been taken by the prison director, upon medical advice, for, inter alia, security and protective reasons. The Court finds no reason to doubt the veracity of the medical report of 30 November 2019 submitted to the Court, and the justification it provides. Indeed, the relevant notes concerning the risk ( inter alia self-harm) are set out in the middle of the page and the suggested action is set out at the end of the page, covering therefore the entirety of the allotted page and the notes are set out in the same handwriting and format as the rest of the report. Further, the urine test results also dated 30 November 2019 (also submitted to the Court) finding the applicant positive for cocaine are counter-signed by the applicant. The Court thus considers that the measure to keep the applicant separately, in a single cell, was for medical reasons and protective purposes in line with the CCF’s policy that everyone testing positive for drug use was not allowed to mix with other inmates until they test negative, coupled with the need to ensure, inter alia, the applicant’s safety. Admittedly it is unclear to the Court whether anyone testing positive for drugs would automatically be considered to be at risk of inter alia self-harm, or whether such conclusions are those resulting from the applicant’s specific situation. In the present case the Government relied on both grounds, supported by the medical report. That having been established the Court need not consider whether there were other plausible reasons for keeping the applicant separately in a single cell.", "69. The Court considers that it is regrettable that the Government did not indicate a legal basis for this measure and that written guidelines for the above-mentioned policy have not been submitted. While there can be merit in opting to separate and monitor new arrivals who test positive for drugs, the Court considers that this procedure, together with relevant safeguards, should be expressly set out in the law with relevant detail. This is even more so where this procedure seems to overlap with the necessity of keeping detainees separately for fear that they might harm themselves (as appears to have been the situation in the instant case). While some leeway can be allowed for a director to take certain urgent and imperative decisions for the well-being of prison inmates, the discretion to apply such measures cannot be unfettered thus leaving room for arbitrariness.", "70. In the present case the Court notes that the decision was based on a prior and complete medical assessment (physical and psychological) and on the medical recommendations listed in that assessment, and that the applicant – who did not deny his history of drug consumption – was being monitored thereafter via the use of CCTV, in line with the indications of the medical report which had indicated that the applicant should be under constant watch.", "71. Nevertheless, the Court takes issue with the fact that the decision and the details pertaining to it were not made known to the applicant in writing at the time, enabling him to challenge it (see, mutatis mutandis, Peňaranda Soto, cited above, § 76), particularly had it been prolonged (contrast, A.T. v. Estonia, cited above, § 85). In this respect, the Court observes that the applicant admitted to having been informed of the measure orally (see paragraph 53 above). Moreover, the applicant did not state that he was unaware of the existence of this policy, nor did he question the necessity of the policy in itself, or the fact that he tested positive for the drug cocaine, and, indeed, countersigned this finding.", "72. Quite apart from the above concerns, the Court notes that the applicant’s detention during this period was for no longer than thirty-five days, as he was moved to a common dormitory once he tested negative for drugs, following regular testing (see paragraph 57 above) and did not suffer any harmful psychological or physical effects as a result of this custodial regime. The Court notes that, the Government have not explained whether drug testing was available at an earlier date, but the applicant has presented no argumentation in this respect.", "73. Conversely, the parties are in dispute as to whether any further assessment was done to determine the applicant’s state of mind at that stage (see respectively paragraphs 57 and 54 in fine ). It does not appear that there had been any further medical or psychiatric assessment conducted in respect of the applicant for the duration of the period of his separation from others. Such a course of action could only be explained if the determination of the applicant’s risk factors (self ‑ harm/suicide/harming others) was an automatic result of his testing positive for drugs. In that case CCTV monitoring could be considered sufficient. However, if the applicant’s risk factors were established for reasons other than his drug consumption, a medical follow up would have been necessary to monitor the risk the applicant could have posed to himself and/or to others prior to his release and the Court draws attention to this serious shortcoming. Indeed, the Court is preoccupied that such a situation could place particularly vulnerable inmates at risk, and it emphasizes that such a measure requires regulation and rigorous adherence to medical protocols to safeguard against such risk. However, in the absence of any clarification on the matter, the Court notes that in the present case the applicant has not claimed that he in fact needed psychiatric or even medical help during such time, quite the contrary (see paragraph 54 above) nor did the CCTV surveillance indicate any erratic behaviour calling for specific attention. Moreover, the applicant did not argue that there existed reasons militating against his release into the dormitory, and the Government submitted that all inmates were assessed prior to their placement in the general population. While they gave no proof relevant to this particular case, nor indicated who made such an assessment, the Court considers that no harmful consequences having ensued in the present case, such shortcoming has no impact on the assessment of the present complaint, but calls for the authorities attention on a more general level.", "74. Importantly, the Court notes that the restrictions applied during this period did not amount to complete sensory isolation, coupled with total social isolation, but relative social isolation. In particular, the applicant has not disputed that he had had regular meetings and calls with his legal counsel for long stretches of time as well as regular contact with the prison authorities, including the Chaplain, and that after the first fourteen days he had also had contact with his family – in this connection the Court also notes the applicant’s contradictory allegation that in his one hour out-of-cell activity he had to call his family in respect of which he didn’t exclude the first fourteen days (see paragraph 50 above). In any event, it is clear that he had only been isolated from other inmates (compare Podeschi v. San Marino, no. 66357/14, § 116, 13 April 2017, concerning a de facto isolation as opposed to a de jure one, and Peňaranda Soto, cited above, §§ 76-77), and even in that context, the Government claimed that communication was still possible from behind their cell doors and the applicant did not dispute that. Moreover, it has not been claimed that correspondence was in any way limited during such period – and it does not appear that the applicant has suffered any harmful physical or psychological effects in consequence of this regime (compare Bastone v. Italy (dec.), no. 59638/00, ECHR 2005 ‑ II (extracts)).", "75. The Court will nevertheless examine the material conditions in which he had been detained during this custodial regime.", "76. While it is unclear to the Court why the applicant was only allowed one hour of “out-of-cell activity”, but not proper outdoor activity during this thirty-five day period, and why he had had no access to books for the first twenty-seven days (despite the applicable limitations of his custodial regime), the Court notes that the applicant was given the possibility of exercising indoors as allowed by the Prisons Regulations (see Regulation 28 at paragraph 18 above), and that despite having the possibility of requesting his own books or writing materials (see Regulation 8(1) at paragraph 18 above), the applicant has not submitted that he had made such request and was denied. In that light and given the limited periods at issue, these factors on their own do not justify a conclusion that the applicant was held in conditions in breach of Article 3 (compare, mutatis mutandis, Mahamed Jama v. Malta, no. 10290/13, § 101, 26 November 2015, and contrast, for example, the conditions applicable to an applicant for a period of eleven months, for protective purposes, during his pre-trial detention in X v. Turkey, no. 24626/09, §§ 36-45, 9 October 2012, or those in Csüllög v. Hungary, no. 30042/08, §§ 33-38, 7 June 2011, and Iorgov v. Bulgaria, no. 40653/98, § 82, 11 March 2004, which concerned periods of two or three years). In this connection, the Court however finds it opportune to recall that according to relevant CPT standards, prisoners, without exception, must be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out-of-cell activities, bearing in mind that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather. Indeed, according to the relevant international standards, prisoners should be able to spend a reasonable part of the day outside their cells, engaged in purposeful activity of a varied nature (work, recreation, education) (see Muršić v. Croatia [GC], no. 7334/13, § 133, 20 October 2016).", "77. In so far as the applicant complained about the conditions in his single occupancy cell, the Court notes that:", "The applicant had available to him “makeshift” bedding and he had been kept in shorts and T-shirt and refused access to his own clothing, for protective purposes, upon medical advice. It is not for the Court to second guess those findings. In particular the Court notes that the applicant had nonetheless his own bedding, namely a foam mattress, albeit of limited comfort. However, the applicant claimed that the clothes he had been given were not sufficiently warm (see Nazarenko v. Ukraine, no. 39483/98, § 139, 29 April 2003) and that he had not been allowed access to his own clothes. In this connection, the Court notes that although the requirement for prisoners to wear prison clothes may be seen as an interference with their personal integrity, it is undoubtedly based on the legitimate aim of protecting the interests of public safety and preventing public disorder and crime (ibid.). In the present case, the tear-proof clothing provided to the applicant further served the purpose of protecting him from any possible self-harm – an option favoured by the CPT (see Hellig v. Germany, no. 20999/05, § 56, 7 July 2011, and the references therein). The Court notes that the applicant complained about the cold, and the Court considers that the applicant’s attire was certainly light, even for a Maltese winter. While suffering from the heat or the cold are conditions which cannot be underestimated as they may have effects on a person’s well ‑ being and may in extreme circumstances affect health (see, inter alia, Aden Ahmed v. Malta, no. 55352/12, § 94, 23 July 2013), the Court observes that the applicant had been provided with two blankets. The provision of blankets must have aided the situation to some extent, and it does not transpire that the applicant suffered any health related concerns in this connection (see, for example, Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13 and 52165/13, § 90 in fine, 12 January 2016). According to the Government he could also have requested more blankets, and it has not been shown or claimed that the applicant requested further blankets and was refused (see Story and Others, cited above, § 118, and Yanez Pinon and Others, cited above, § 110).", "78. In relation to the sanitary facilities, the Court has previously taken issue with cells which were not equipped with automated flushing systems, even more so when water was not readily available to flush them (see Story and Others, cited above, § 121, and the case-law cited therein). However, in the present case, not only was there justification for this situation - namely to avoid ligature points and prevent from self-harm - but the guards could flush the toilet from the outside all throughout the day, as admitted by the applicant, and the Court has no reason to doubt the Government’s contention that this was possible also at night time. Further, while there appears to have been no wash hand basin or running water available, nor, according to the applicant, toilet paper, it has not been claimed that no water (bottled or in a bucket) had been available to the applicant (see Regulation 23 (3), at paragraph 18 above), at least during the day, to see to any hygienic needs. Moreover, while the absence of an adequate supply of toilet paper in a prison may raise an issue under Article 3 of the Convention (see Valašinas v. Lithuania, no. 44558/98, § 104, ECHR 2001 ‑ VIII), it has not been claimed that the applicant requested this and was denied.", "79. As to lighting and ventilation, the applicant has eventually admitted that the cell had been equipped with a window, which, from the photos submitted to the Court, appears to be of a reasonable size and allowed both for natural light and ventilation, despite that only one third of it could be opened. Further, while the artificial lighting which remained on, day and night, could undeniably contribute to a detainees frustration (see Starokadomskiy v. Russia, no. 42239/02, § 46, 31 July 2008) the Government submitted that the lights could be seen to by the guards upon request (see also Regulation 20, at paragraph 18 above).", "80. Lastly, the Court notes that the applicant also complained that he had not been provided with (presumably drinking) water, food and cigarettes from 10 p.m. to 6 a.m. In the absence of any detailed submissions from the parties, the Court refers to Regulation 25 (see paragraph 18 above) and observes that the cases brought before the Court concerning the CCF, in fact show that convicted detainees are allowed three meals a day (see, for example, Abdilla, cited above, § 51). Moreover, according to Regulation 25 detainees on remand may also be allowed food from other sources. Thus, in the absence of any contrary allegation, it cannot be said that the applicant suffered hunger or thirst (compare and contrast Kadiķis v. Latvia (no. 2), no. 62393/00, § 55, 4 May 2006; Stepuleac v. Moldova, no. 8207/06, § 55, 6 November 2007; and Korneykova and Korneykov v. Ukraine, no. 56660/12, § 141, 24 March 2016) nor that the deprivation of any other products over limited periods can be considered as a deprivation of the applicant’s vital needs.", "81. It follows that, from the material available to it, bearing in mind the limited stringency of the measure, its duration, the objective pursued, and the conditions in which it was imposed, as well as the lack of significant effects on the applicant, whilst reiterating its concern about the matters highlighted above, the Court cannot find that the applicant’s situation during the first period of his detention amounted to treatment contrary to Article 3.", "82. There has therefore been no violation of that provision.", "The period from 4 January 2020 onwards", "(a) The parties’ submissions", "(i) The applicant", "83. The applicant’s submissions, at the time of lodging his application, are set out in paragraphs 13 and 14 above. In his observations he further claimed that occupation in the dormitory often increased to six persons and that owing to the presence of large furniture the effective free space per prisoner was closer to 2.5 - 4 sq.m. He considered that a detainee’s living space could not possibly include a yard where he could, on occasion, take a stroll, as argued by the Government. Moreover, the yard could only be accessed for a maximum of one hour between 8 a.m. - 12 p.m. and then from 2 p.m.- 7 p.m. - not continuously as falsely stated by the Government.", "84. Additionally, the applicant had been denied any form of exercise, cultural, or social activities, and had been restrained to his cell for over twenty-three hours a day. He had also not been allowed to call his family members on Skype in March 2020, and later had been allowed to call them only once a week, with a prison guard sitting next to him throughout the call.", "While in August 2020 his cell had been furnished with a toaster, kettle, TV, fire extinguisher, fridge and washing machine following complaints lodged in January 2020, prior to this, he would wash his clothes in the wash basin.", "(ii) The Government", "85. The Government submitted that the applicant’s claims were untrue and incoherent, for example in relation to his skype access and yard access. Further, the Government submitted that, during his detention, the total number of occupants had been largely maintained at between three and four occupants, including the applicant. According to the affidavit of the prison director (submitted to the Court) it was only in exceptional circumstances that the number of occupants had increased to five. The dormitory was 30 sq.m. large (29.843 sq.m. to be exact), meaning that inmates had 7.5 sq.m. under normal circumstances (where there had been up to four inmates at one time) and 6 sq.m. when the number of inmates had increased to five in exceptional circumstances and for a short period of time. Connected with the dormitory itself, the inmates had continuous and uninterrupted access to a yard of 18 sq.m. in size, from 8 a.m. until 7 p.m. every day. Therefore, throughout most of the day, the applicant’s personal space increased to 12 sq.m. (9 sq.m. in the above-mentioned exceptional circumstances). In this connection the Government noted that the applicant was also inconsistent in his submissions concerning the use of the two different yards and the time allotted (see paragraph 83 above). The Government clarified that he had had access to the small yard of 18 sq.m. (attached to the dormitory) throughout the entire day (from 8 a.m. until 7 p.m.) and then he had also had access, for one hour per day, to the much larger yard for his out-of-cell activity. The Government strongly disputed that the applicant was only allowed to walk in the yard for thirty minutes per day, as alleged.", "86. Contrary to that stated by the applicant, the detainees were provided with a washing machine within their dormitory which they could use freely. In so far as the applicant had relied generally on the CPT report of 2016, the Government submitted that the situation had greatly improved so much so that the applicant had never complained to the Visitors Board during his stay.", "87. In so far as the applicant had not been allowed to use the gym, this had been intended to protect the inmates from possible exposure to Covid ‑ 19. Indeed at the time (May 2020) all gyms in the entire country had been closed, and the applicant had been once again allowed to use the gym at the time of the Government’s submissions. The same held for his submissions concerning mass at a time when all church services had been stopped throughout the country. He, however, had had access to a chaplain during that time. The Government considered that it was contradictory that, on the one hand, the applicant complained about these measures but, on the other hand, he complained that the Government had not taken enough measures to protect him against Covid-19 (see paragraph 98 below). It was also true that family visits had been suspended, in order to protect inmates from the outbreak (as had been the case for care homes), however, they were allowed to contact their family via skype once a week, and had continuous access to a telephone. If the applicant chose not to make use of those services, it could not be blamed on the State.", "(b) The Court’s assessment", "(i) General principles", "88. The Court has stressed on many occasions that under Article 3 it cannot determine, once and for all, a specific number of square metres that should be allocated to a detainee in order to comply with the Convention. Indeed, the Court has considered that a number of other relevant factors, such as the duration of detention, the possibilities for outdoor exercise and the physical and mental condition of the detainee, play an important part in deciding whether the detention conditions satisfied the guarantees of Article 3. Nevertheless, extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” within the meaning of Article 3 (see Muršić v. Croatia [GC], no. 7334/13, § 103, 20 October 2016, and the case-law cited therein).", "89. The Court finds it important to clarify the methodology for the calculation of the minimum personal space allocated to a detainee in multi-occupancy accommodation for its assessment under Article 3. The Court considers, drawing from the CPT’s methodology on the matter, that the in ‑ cell sanitary facility should not be counted in the overall surface area of the cell. On the other hand, calculation of the available surface area in the cell should include space occupied by furniture. What is important in this assessment is whether detainees had a possibility to move around within the cell normally (ibid., § 114).", "90. The Court considers that a strong presumption of a violation of Article 3 arises when the personal space available to a detainee falls below 3 sq.m. in multi-occupancy accommodation. It then remains for the respondent Government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the Court’s decision whether, in the circumstances, the presumption of a violation is rebutted or not (ibid., §§ 124-126).", "91. More generally, when assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). Quite apart from the necessity of having sufficient personal space, other aspects of material conditions of detention are relevant for the assessment of whether they comply with Article 3 (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 149 et seq., 10 January 2012).", "(ii) Application of the principles to the present case", "92. The Court notes that the parties are in disagreement as to different elements related to the space available to the applicant. The Court observes that from the plans of the dormitory submitted to the Court it is clear that the dormitory, measuring according to the Government 30 sq.m, (while the applicant claimed it was 34.8 sq.m.), is adjacent to a small yard measuring 18 sq.m. to which the detainees of the dormitory had access all day long. The Court also observes that according to the plans submitted to the Court, the bathroom within the dormitory consisted of an area of around 3 sq.m. The dormitory also contained three bunk beds, a regular six-person table and a fridge. Thus, with reference to the methodology and the principles cited ‑ above (at paragraphs 89 and 90), it is clear that even assuming that the dormitory measured 30 sq.m. including the bathroom, hosted six people all throughout, and that the yard adjacent to the dormitory (to which the applicant had access all day) was to be excluded from the surface area, the applicant still had available an individual sleeping place and 4.5 sq.m. of personal space and thus could move around normally (given the limited furniture).", "93. Of the other elements relevant for the assessment of the conditions of detention, special attention must be paid to the availability and duration of outdoor exercise and the conditions in which prisoners could take it. As noted in the assessment of the previous complaint, the Prison Standards developed by the CPT make specific mention of outdoor exercise and consider it a basic safeguard of prisoners’ well-being that all of them, without exception, be allowed at least one hour of exercise in the open air every day and preferably as part of a broader programme of out ‑ of ‑ cell activities (see Ananyev and Others, cited above, § 150). The Court notes that the applicant had access to the small yard (attached to the dormitory) all throughout the day (from 8 a.m. until 7 p.m.) and had access for one hour per day to the much larger yard (or to the gym, an option he often preferred) for his out-of-cell activity. Indeed, the applicant has not substantiated, nor in any way attempted to explain, why he – unlike others – would have allegedly only been allowed thirty minutes of exercise time (as alleged in the application form), at any point or all throughout his detention. Moreover, in his later submissions he admitted that the yard could be accessed for a maximum of one hour per day.", "94. With respect to the applicant’s other material complaints – the mere fact that detainees in the dormitory slept on bunk beds and shared a toilet, shower, and handbasin (between four to six people), does not constitute inhuman or degrading treatment, as is the case with washing clothes and dishes in the same basin. Moreover, in this respect the applicant admitted that he had eventually been provided with a washing machine.", "95. Lastly, the Court notes that the applicant complained that for a certain unspecified period he had had no access to the gym, to his family, to church or other activities. The Government submitted that this limited access, in around May 2020, had been the result of measures aimed at preventing the arrival and spread of the Covid-19 virus within the detention facility. Moreover, similar limitations had been imposed on all the population.", "96. The Court notes that the limitations complained of occurred within a very specific context, namely during a public health emergency (see Fenech (dec.), cited above, § 11) and were put in place in view of significant health considerations, not only on the applicant but on society at large. Indeed, the Court has already had occasion to note that the Covid ‑ 19 pandemic is liable to have very serious consequences not just for health, but also for society, the economy, the functioning of the State and life in general, and that the situation should therefore be characterised as an “exceptional and unforeseeable context” (see Terheş v. Romania (dec.), no. 49933/20, 13 April 2021). With that in mind the Court considers that the mere fact that for a limited time (presumably three months, see Fenech, cited above, § 88) the applicant could not use the gym or attend mass (while still having access to a Chaplain) - measures which moreover were applicable to all the prison detainees, and the population at large – cannot be considered to have caused him distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention during a pandemic. Similarly, with respect to the limitation on his family contacts, the Court notes that detention, like any other measure depriving a person of his liberty, entails inherent limitations on one’s private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family (see Khoroshenko v. Russia [GC], no. 41418/04, § 106, ECHR 2015). Indeed, in the present case, while the restrictions related to the pandemic were in place, family visits had been suspended to secure the detainees’ well-being. It has not been argued that this measure was not necessary, proportionate, or restricted in time. Indeed, following a brief period, which the Court considers would have been necessary to make the relevant arrangements, the applicant had been allowed to call his family via skype once a week, and he could contact them over the phone regularly all throughout the relevant period. Thus, alternative measures had been put in place and the applicant had been able to maintain regular contact with his family and have news of their well ‑ being during the difficult times pertaining to the pandemic. This was a situation endured by persons at liberty all over the world, and the applicant was no exception.", "97. Bearing in mind all the above, the Court considers that the applicant’s conditions of detention were not in breach of Article 3.", "ALLEGED VIOLATION OF ARTICLE 2 AND 3 OF THE CONVENTION", "98. The applicant complained about the risk to his life due to the Covid ‑ 19 pandemic and his vulnerable status, in relation to which the authorities had taken no steps to safeguard his life and health while in detention, as provided in Articles 2 and 3 of the Convention. Article 2 in so far as relevant, reads as follows:", "“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”", "AdmissibilityIncompatibility ratione personae/materiae in respect of Article 2", "Incompatibility ratione personae/materiae in respect of Article 2", "Incompatibility ratione personae/materiae in respect of Article 2", "(a) The parties’ submissions", "99. The Government submitted that the applicant had failed to show that the alleged shortcomings had truly placed his life at imminent risk. On the contrary, his allegations were completely hypothetical. They noted that (at the date of submissions - 25 May 2021) more than one year since the first case of Covid-19 in Malta, there had not been a single case of “community transmission” [3] of Covid-19 within the CCF, nor any death of someone who had tested positive for the virus. They further noted that, as a general rule, Article 2 was applicable only where death had ensued or where the life of an identified individual had been placed in manifest jeopardy when such state of affairs was imputable, in one way or another, to the acts or omissions of the State. This was not the situation in the present case, where the applicant’s life had never been in danger.", "100. The applicant submitted that whether others or himself had been infected was irrelevant and did not render his complaint devoid of merit. His complaint was that the prison authorities and the Maltese courts had failed to take into account the applicant’s special status as a vulnerable individual who lacked a kidney. By virtue of being both a pre-trial detainee, as well as a detainee with a serious health risk, he had to be specifically safeguarded against any potential future Covid-19 infection in the prison. He relied on the medical report submitted to the Court (see paragraph 15 above) and was of the view that a Covid-19 infection was likely to present a serious risk to his life and/or or irreparable and serious injury, owing to a combination of his medical condition, his age, and the particularly lethal nature of the disease. Thus, due to the absence of any individualized planning around the applicant’s vulnerability, his anxiety and fear of imminent death persisted, and he was clearly a victim of the violation complained of.", "(b) The Court’s assessment", "101. The Court reiterates that, in order to be able to lodge a petition by virtue of Article 34, a person, non-governmental organisation or group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010). In order for applicants to be able to claim to be a victim, they must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014).", "102. The Court has previously held that the question whether or not the applicant could claim to be a victim of the violation alleged was relevant at all stages of the proceedings under the Convention (see Tănase, cited above, § 105, and the case-law cited therein). The Court notes that the provisions of the Convention are to be interpreted in a manner which renders its safeguards practical and effective. In assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (ibid.). Thus, the question whether an applicant has victim status falls to be determined at the time of the Court’s examination of the case where such an approach is justified in the circumstances (ibid., § 106).", "103. The Court reiterates that it has applied Article 2 both where an individual has died (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004 ‑ XII) and where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application (see for a series of examples Brincat and Others v. Malta, nos. 60908/11 and 4 others, § 82, 24 July 2014). In particular, in Brincat and Others the Court found that Article 2 applied in respect of an applicant who died of malignant mesothelioma which was known to be a rare cancer associated with asbestos to which the applicant had been exposed for a decade in the Malta Drydocks. It however found (§ 83) that the provision did not apply to the remaining applicants whose respiratory problems and other complications related to exposure to asbestos, had not indicated malignant mesothelioma as their conditions did not constitute an inevitable precursor to the diagnosis of that disease, nor where their conditions of a life ‑ threatening nature.", "104. The Court considers that in his application lodged in May 2020, at the beginning of the pandemic when little was yet known about the virus, the applicant sufficiently explained why he considered that the domestic authorities had not taken sufficient measures to fight the spread of Covid-19 in prison and to protect him personally, as a vulnerable individual lacking a kidney, who could be directly affected by such a virus (see, a contrario, Zambrano v. France (dec.), no. 41994/21, § 43, 7 October 2021). Today, more information is publicly available about the virus, its several mutations and their specific effects on the body as well as their contamination capacity. According to the World Health Organisation (‘WHO’) as of 21 February 2022, worldwide there have been 423,437,674 confirmed cases of Covid-19, including 5,878,328 deaths, reported to the WHO [4]. Given these figures and without diminishing the seriousness of this sometimes deadly virus, the Court cannot consider that individuals are a victim of an alleged violation of Article 2 without substantiating that in their own circumstances the acts or omissions of the State have or could have put their life at real and imminent risk.", "105. In the present case the Court cannot ignore that – while some inmates at CCF have been infected through traceable chains, and survived – more than a year and half after the start of the pandemic, that is at the date of the last observations (20 October 2021), the applicant had not been infected. Moreover, vaccination had been made available to the applicant at the latest in April 2021 – although it is not known if he availed himself of this opportunity.", "106. In any event, even assuming that the applicant were to be infected eventually, the Court notes that according to the applicant’s medical report, drawn up on his entry into prison, apart from the lack of a kidney, the applicant has no underlying health conditions, and it has not been claimed that the absence of a kidney has ever affected the applicant’s quality of life or required any treatment to date – any vulnerability is therefore relative. In relation to his condition of having only one kidney, the applicant relied solely on a report of a Consultant Surgeon (see paragraph 15 above), dated April 2020 at the start of the pandemic, which states that the applicant would be at risk of more serious complications had he to be infected with the virus. However, despite the passage of time, the applicant has not relied on any studies or relevant materials capable of giving a clear picture of the chances that a man of his age (early forties), lacking a kidney, would certainly or quite likely die of the disease, had he to be infected (pre or post vaccination). Thus, the Court cannot speculate as to whether his condition in such case would be of a life-threatening nature which would therefore attract the applicability of Article 2 (compare Shelley v. the United Kingdom (dec.), no. 23800/06, 4 January 2008, concerning a complaint about the authorities’ decision not to implement a needle ‑ exchange programme for drug users in prisons to help prevent the spread of viruses, where the Court stressed that irrespective of the higher levels of infection of HIV and HCV within prison populations, it was not satisfied that the general unspecified risk, or fear, of infection as a prisoner was sufficiently severe as to raise issues under Articles 2 or 3 of the Convention).", "107. The Court does not exclude the applicability of Article 2 in certain Covid-19 related cases. However, in the circumstances of the present case, it considers that the provision is not applicable and that the applicant cannot claim to be a victim of the alleged violation under Article 2.", "108. It follows that the Government’s objection is upheld and that the applicant’s complaint under Article 2 of the Convention is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.", "Exhaustion of domestic remedies", "109. The parties maintained their submissions made in the context of the objection under Article 3 examined above also in relation to this complaint.", "110. For the reasons set out at paragraph 41 above, also relevant to the present complaint, the Court dismisses the Government’s objection.", "Conclusion", "111. The Court notes that the complaint under Article 3 is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicant", "112. Relying on the Court’s case-law, the applicant submitted that Article 3 obliged States to adequately ensure the health and well-being of a prisoner and, where necessitated by the nature of a medical condition, the State must ensure regular and systematic supervision, involving a comprehensive strategy aimed at either curing the detainee’s medical conditions or preventing their aggravation. In an exceptional situation, a conditional release of a seriously ill prisoner may be required under the Convention. Article 3 also imposed a positive obligation on States to put in place effective methods for the prevention and detection of contagious diseases in prisons. This included the duty to identify the carriers of a germ or a contagious disease upon arrival in prison, to isolate them and treat them effectively, as the prison authorities cannot ignore the infectious state of their prisoners and expose others to the real risk of contracting serious diseases.", "113. The applicant argued that despite imprisoning him sine die, the authorities had failed to prevent his life from being unavoidably put at risk thus, causing him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. Medical evidence showed that “prisons and centres of detention were well recognized ‘epidemiological pumps’’ [5] and the related mortality rates were as much as 50% higher for prisoners than for people in the wider community, especially as such communicable diseases were often not adequately treated with potential lethal consequences [6]. The WHO had noted that the health risks related to the spread of communicable diseases in prisons was frequently aggravated by the unhealthy conditions of imprisonment [7].", "114. According to the applicant, as outlined by the WHO, the minimum steps that Malta should have taken to ensure adequate safeguarding against infection included: ensuring good hygiene standards and food quality; ensuring systematic medical screening for transmissible diseases for every newly arrived detainee or prison staff; separating the most vulnerable prisoners; and enforcing “strong infection prevention and control (“IPC”) measures, adequate testing, treatment and care”. The CPT had, in 2016, noted the CCF’s inability to handle outbreaks of disease, in that instance the critique related to a poorly handled outbreak of diarrhoea, and consequently recommended that the Maltese authorities put in place robust policies to deal immediately with health (and other) crises that may take place within the prison, including adopting a proactive approach, with a view to minimising the risk of the spread of certain infections and ensure the speedier analysis of test results (see paragraph 33 above). However, the Government failed to heed those warnings and continued to expose the applicant to a regime wholly at odds with the WHO recommendations.", "115. In sum, the authorities should have ensured appropriate measures to prevent the introduction and spread of the disease in the prison, as well as enforced comprehensive, preventative, hygiene measures and strengthened medical support, particularly tailored according to the applicant’s medical needs. In particular, the prison authorities had failed to insulate the applicant from exposure to the risk of contracting serious diseases, particularly Covid ‑ 19 despite his condition. He argued that the Maltese authorities should have made regular health and risk assessments for the applicant, and that the prison should have made arrangements for him to be moved into safer living conditions when infection does strike the prison (sic.). This included alternatives to detention or transfer to a safer medical/rehabilitative centre. According to the applicant the State could not ignore the applicant’s sensitive health situation and rest on the basic and general Covid-19 regime designed to protect the detainees in the prison facility as a whole, which in his observations, he admitted had been put in place.", "116. The applicant also considered that the authorities’ actions were wholly contrary to those obligations. First, they failed to genuinely prioritize bail for the applicant (as a pre-trial detainee), and to take into account the applicant’s health (the loss of one kidney). He had been denied any prospect of abiding by the essential requirement of physical distancing, and the detainees shared facilities. His food was delivered by hand without any attempt to ensure hygiene or insulation from infection. Further, the prison exposed the applicant through daily contact with guards and nurses and a chaplain (who rotated and left the facility every week). On any single day, the applicant had been exposed to ten persons and the authorities had done little but provide the applicant with a mask and hand washing sanitiser.", "(b) The Government", "117. The Government submitted that, even before there was the first case of Covid-19 in the country, the prison administration had put in place a contingency plan which had been approved by the domestic public health authorities, to safeguard the well-being of the inmates (900) and the prison staff. According to that plan, upon the finding of the first case of Covid-19 in the country, several ‘drastic’ steps were to be taken, including that visits from family members would be suspended, that each CCF official would be checked for fever prior to entering the facility, and that any official with a high temperature would be immediately sent home. If any prisoner was found to run a fever, he would be immediately transferred to another zone of the prison which was specifically designed as a ‘quarantine zone’. According to the plan further measures would be put in place if a prisoner were to be infected.", "118. In that case, according to the contingency plan, any externals were no longer allowed into the facility save for catering and cleaning services. The temperature of new detainees was to be taken on entry and precautionary measures were to apply for transfers to court hearings. Staff had also to be properly equipped with masks and gels, as well as the option to wear a disposable suit to avoid any contamination.", "119. The contingency plan also prepared for the possibility of more than ten positive inmates. In such case, a lockdown of the prison would have been called, meaning that all inmates would remain in their respective cells for a period of time determined by the authorities and food would be distributed directly in the cells. No items would be allowed in or out of the prison.", "120. The Government submitted that, apart from these planned measures, the authorities took other measures, some of which reflected the measures taken nationwide. Thus, all inmates and all staff had been provided with masks, and hand sanitiser had been installed everywhere. Care had been taken to ensure a high degree of cleanliness within the whole facility.", "121. Furthermore, for several months, CCF was effectively in a lockdown. The prison administration worked on a system of weekly shifts, where the administration slept at the facility for a full week without any person going in or out of the facility. The details thereof were outlined in the contingency plan. The contingency plan had also provided that in the case of a complete lockdown for quarantine purposes of the entirety of the prison, including of the staff, three doctors, as well as nurses, would be called to work and live within the facility so as to provide all the necessary medical assistance that may be required to both inmates and staff. The authorities also purchased two decontamination pumps in order to decontaminate the property in the event of infected persons being detected.", "122. The inmates of CCF were given priority (irrespective of their age) when the Government began to vaccinate the population. In fact, by 21 April 2021, every single inmate at CCF was fully vaccinated, except for those inmates who refused to be vaccinated. Those measures as well as the result achieved through them showed that the authorities took all the precautions necessary to avoid the proliferation of Covid-19 within the facility.", "123. Thus, the Government disputed that they had not considered the applicant’s personal situation adequately, noting that the prison authorities carried out medical assessments upon admission of each and every inmate in order to be able to provide for the inmate’s well-being. At the same time, they noted that quite a significant proportion of the CCF community suffered from various ailments and in order to see to their needs, the prison authorities had invested hundreds of thousands of Euros over the past years to strengthen the provision of medical care within CCF, inaugurating a new, state of the art, medical centre in March 2021.", "124. Lastly, the Government noted that in view of the above the applicant’s fear of contracting Covid-19 did not attain the minimum level of severity which was necessary, for any treatment to fall within the scope of Article 3. Indeed, the fear and anxiety that the applicant has felt has been shared and expressed by many throughout the world, whether they lived inside or outside an institution run by Government.", "The Court’s assessment", "(a) General principles", "125. It cannot be said that the execution of detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain a particular kind of medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 93-94, ECHR 2000 ‑ XI).", "126. The state of health, age and a severe physical disability constitute situations in which capacity for detention is assessed under Article 3 of the Convention. Although this provision cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Mouisel v. France, no. 67263/01, §§ 38 ‑ 40, ECHR 2002-IX). A lack of appropriate medical care for persons in custody is therefore capable of engaging a State’s responsibility under Article 3. In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed should also be provided (see Rooman v. Belgium [GC], no. 18052/11, § 146, 31 January 2019). Thus, the lack of appropriate medical care and, more generally, the detention of a sick person in inadequate conditions, may in principle constitute treatment contrary to Article 3 (see Ghavtadze v. Georgia, no. 23204/07, § 76, 3 March 2009).", "127. In addition to the positive obligation to preserve the health and well ‑ being of a prisoner, in particular by the administration of the required medical care, Article 3 imposes on the State a positive obligation to put in place effective methods of prevention and detection of contagious diseases in prisons. First and foremost is the State’s obligation to screen detainees early, upon arrival in prison, to identify carriers of a germ or contagious disease, isolate them and treat them effectively. All the more so since prison authorities cannot ignore the infectious state of their inmates and, in so doing, expose others to the real risk of contracting serious illnesses (see Fűlöp v. Romania, no. 18999/04, § 38, 24 July 2012, and Dobri v. Romania, no. 25153/04, § 51, 14 December 2010).", "128. On the whole, the Court takes a flexible approach in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee but should also take into account “the practical demands of imprisonment” (see Mikalauskas v. Malta, no. 4458/10, § 63, 23 July 2013 and the case-law cited therein). Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016, with further references).", "(b) Application of the general principles to the present case", "129. In the present case, the Court considers that given the nature of Covid-19, its well-documented effects, as well as the fact that it is easily transmitted from one person to another ( via droplets or airborne particles containing the virus), the fears for the applicant’s health in the eventuality of contracting the virus, are not insignificant. Thus, in order to protect his physical well-being, the authorities had the obligation to put certain measures in place aimed at avoiding infection, limiting the spread once it reached the prison, and providing adequate medical care in the case of contamination. Preventive measures have to be proportionate to the risk at issue, however they should not pose an excessive burden on the authorities in view of the practical demands of imprisonment. This is even more so in the present case, where the authorities were confronted with a novel situation such as a global pandemic – unprecedented in recent decades – as a result of a new strain of coronavirus (called Covid-19) to which they had to react in a timely manner.", "130. In limine the Court observes that on 12 March 2020 the Covid-19 outbreak was declared a pandemic. The Court shares the considerations made by the WHO that “in all countries, the fundamental approach to be followed is prevention of introduction of the infectious agent into prisons or other places of detention, limiting the spread within the prison, and reducing the possibility of spread from the prison to the outside community. This will be more challenging in countries with more intense transmission” and “Countries should prepare to respond to different public health scenarios, recognizing that there is no one-size-fits-all approach to managing cases and outbreaks of COVID-19” [8]. Furthermore, the Court observes that the passage of time has brought along not only new variants, but also an extended scientific knowledge of the virus as well as relevant responses (both via vaccinations and medical treatment). All these factors have made it possible for Governments to adapt their policies and protocols to the changing circumstances. This process is still ongoing, and it is in that light that the Court must not lose sight of the challenges being posed by the constant evolution of the Covid-19 pandemic.", "131. Turning to the present case, the Court observes that before the first case of Covid-19 was detected in Malta, the prison authorities had already put in place a contingency plan in collaboration with the national health authorities. Regrettably, the Government failed to explain in detail to what extent that contingency plan was put in place once the pandemic hit Malta, and once the first case of Covid-19 was detected in the CCF. Nor did they give details about the numbers of contaminated inmates throughout the relevant period, but solely submitted that none of the ones who tested positive had died. They also failed to give any temporal context to the measures that were put in place – measures which, however, the applicant admitted had been put in place (see paragraph 115 above).", "132. The Government explained that, for several months, at the outbreak of Covid-19 internationally, CCF was effectively in a lockdown, whereby visitors of all kinds were not allowed in and the staff was working weekly shifts to avoid excessive exposure to outside factors. According to the documented plan, staff had to be provided with protective equipment including disposable gears, which they could opt for, when in contact with inmates, to avoid contamination going both directions. The Court considers that these measures certainly diminished the risk of wide-spread contamination within the prison thus preserving the health and safety of inmates and staff.", "133. Apart from the specific measures during the lockdown the Court takes account of the general measures listed by the Government, such as disinfection (by means of regular cleaning, hand sanitiser, and relative pumps), and mask wearing (compare Ünsal and Timtik v. Turkey (dec.), no. 36331/20, § 38, 8 June 2021), as well as the possibility of physical distancing given the size of the applicant’s dormitory and the personal space available to him, as well as the fact that he had access to open air all day long, via the yard adjacent to the dormitory (see paragraph 92 above). Moreover, there is no indication that the CCF, which hosts around 900 inmates, was or is generally overcrowded, a factor which could enhance proliferation of the virus. Thus, the Court considers that, contrary to the applicant’s wishes, in respect of the situation at the CCF there would be no pressing necessity to consider a greater use of alternatives to pre-trial detention, particularly for persons like the applicant accused of particularly serious crimes.", "134. In addition, there had been put in place regular temperature verification of officials who could not enter the facility without such clearance, and hosted inmates who were transferred to a ‘quarantine zone’ in case of fever, allowing for immediate isolation of suspected cases. According to the contingency plan the same applied to new arrivals (over and above the medical screening on entry). This type of initial screening can be considered as satisfactory, particularly in the early phases of the pandemic (see Preparedness, prevention and control of COVID-19 in prisons and other places of detention, WHO, interim guidance, 15 March 2020, pg. 4, referenced at paragraph 24 above).", "135. The parties made no submissions about the applicable procedures on entry in later periods. However, albeit not relied on by the parties, whose observations were submitted prior to the publication of the report, for completeness sake, the Court will not ignore relevant public findings made by a group of experts in the context of an inquiry ordered by the Minister under Chapter 273 of the Laws of Malta, dated 9 December 2021 [9]. The report aimed at scrutinizing certain procedures and policies undertaken at the CCF. According to that report: new detainees were subject to a rapid test, with immediate results, which would determine where the new detainee would be placed according to whether the test was positive or not; In certain cases, a PCR test would be administered; Nevertheless, data showed that between 1 September 2020 and 11 October 2021 any new detainee was kept in quarantine for fourteen days; Detainees who tested positive for the virus or were in quarantine underwent medical checks twice daily; More recently, following widespread vaccination and rapid testing, the quarantine period was decreased to 24-48 hours for persons who tested negative. In the Court’s view, the above shows that authorities maintained their vigilance and adapted their protocols to the evolving situation.", "136. Importantly the Court notes that vaccination against Covid-19 was available to all inmates in early 2021 and by April 2021 all the inmates who wished so had been vaccinated. That instrument was deployed in an extremely timely manner in order to protect CCF inmates and the Government’s efforts in this respect must be lauded.", "137. In so far as the applicant complained that he should have been insulated from exposure and protected more than other detainees, the Court takes note of the Government’s submission that various individuals in the prison could qualify as vulnerable. Given the practical demands of imprisonment and the novelty of the situation, the Court can accept that it may not be possible to make arrangements for each vulnerable individual to be moved to safer quarters, before any contamination occurs in the prison. While refined allocation procedures should be considered allowing prisoners at highest risk (such as those having cardiovascular disease, diabetes, chronic respiratory disease, or cancer) to be separated from others – the applicant has not made out a case that he fell within the category of the most vulnerable (see paragraph 106 above).", "138. Further, even if that were the case, as noted above, contaminated persons would be moved to other quarters, contacts quarantined, and relevant decontamination processes would take place. Indeed, it is not irrelevant that at the date of filing observations, more than a year and a half since the start of the pandemic, the applicant did not submit that he was at any stage during his detention exposed to a Covid-19 positive individual and the mere fact that a group of detainees (none of whom was known to be positive for Covid-19) shared a dormitory and used the same medical, sanitary, catering and other facilities does not in itself raise an issue under Article 3 of the Convention (contrast, Feilazoo, cited above, § 92, where the applicant, who was not in need of quarantine, was placed in quarantine quarters with other persons who could have posed a risk to his health). In this connection it is also noted that water and detergents were readily available to the applicant in his dormitory (see paragraph 94 above), elements which are an asset for general precautionary cleaning. Further, the Court does not take issue with the fact that food was distributed by hand, given the provision of hand sanitiser to both guards and prisoners.", "139. While it is true that CCF did not entirely prevent contamination within the prison, there is no indication that the spread of the virus had not been, and continues to be, limited via these measures, nor has the applicant claimed that the contaminations had gone out of hand. Admittedly, following the filing of observations, according to the WHO, all European countries have seen a spike in cases due to the highly transmissible Omicron variant. The region of Europe and central Asia saw over 7 million newly reported cases of Covid-19 in the first week of 2022, and the Institute for Health Metrics and Evaluation (IHME) forecasts that more than 50% of the population in the Region will be infected with Omicron in January-February 2022 [10]. In consequence, it would be unrealistic to expect that a detainee would never come in contact with a positive person, even more so given that certain measures could only be kept in place for as long as reasonably necessary (such as, for example, the suspension of family visits).", "140. In light of the above, the Court considers that the authorities have put in place adequate and proportionate measures in order to prevent and limit the spread of the virus.", "141. Lastly, the Court reiterates that absent or inadequate medical treatment, particularly when the disease has been contracted in detention, is most certainly a subject for the Court’s concern (see Shchebetov v. Russia, no. 21731/02, § 71, 10 April 2012). In this connection the Court notes that even assuming that the applicant had to contract Covid-19 while in prison, there is no indication that qualified assistance would not be available, thus dispelling any ulterior anxiety in this respect (see, a contrario, Khudobin v. Russia, no. 59696/00, § 95, ECHR 2006 ‑ XII (extracts). In particular, quite apart from the regular medical staff, a medical centre was also inaugurated in March 2021.", "142. In these circumstances the Court does not find that the authorities failed to secure the applicant’s health (compare, albeit in a different context, Artyomov v. Russia, no. 14146/02, § 109, 27 May 2010), nor that he was subjected to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.", "143. It follows that there has been no violation of Article 3." ]

[ "I. the circumstances of the case", "A. The Christmas Island nuclear tests", "10. Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at Christmas Island in the Pacific Ocean (November 1957–September 1958) of weapons many times more powerful than those discharged at Hiroshima and Nagasaki.", "11. During the Christmas Island tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast.", "The applicant alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast.", "B. The particular circumstances of the applicant’s case", "12. While the applicant’s father was serving as a catering assistant in the Royal Air Force, he was present at Christmas Island during four nuclear tests in 1957 and 1958. He also participated in the clean-up programme following the tests.", "13. The applicant was born in 1966. In or about 1970 she was diagnosed as having leukaemia, a cancerous disease of the organs which manufacture blood. Her records of admission to hospital state, under the heading “Summary of Possible Causative Factors”, “Father – Radiation exposure”.", "14. The applicant received chemotherapy treatment which lasted until she was 10 years old. Because of her illness and associated treatment she missed half of her primary school education and was unable to participate in sports or other normal childhood activities.", "15. In December 1992 the applicant became aware of the contents of a report prepared by the British Nuclear Tests Veterans’ Association (“BNTVA”) indicating a high incidence of cancers including leukaemia in the children of Christmas Island veterans. The applicant is a member of the BNTVA.", "16. She still has regular medical check-ups and is afraid to have children of her own in case they are born with a genetic predisposition to leukaemia.", "III. The United Kingdom’s ArticleS 25 AND 46 DeclarationS", "20. On 14 January 1966 the United Kingdom lodged with the Secretary General of the Council of Europe the following declaration:", "“… in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4 th of November 1950, … the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only …, for the period beginning on the 14 th of January 1966, and ending on the 13 th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe, subsequently to the 13 th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13 th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto…”", "A declaration under Article 46 of the Convention, recognising the Court’s jurisdiction subject to similar conditions, was filed on the same day. Both declarations have been renewed on several occasions subsequently." ]

[ "ii. relevant domestic law and practice", "Reay and Hope v. British Nuclear Fuels PLC", "17. In 1983 an Independent Advisory Group, chaired by Sir Douglas Black, was set up in the United Kingdom to investigate reports of an abnormally high number of children contracting leukaemia in the area around the nuclear power reactor at Sellafield (formerly called Windscale ) in northern England. The Group confirmed that childhood leukaemia was more common in this area than normal, but was not able to determine the reason for this. One of the members of the Group, Dr Martin Gardner, went on to conduct three studies into the phenomenon. The third, published on 17 February 1990 (“the Gardner Report”), found a statistical association between the incidence of leukaemia in children from the town of Seascale, near Sellafield, and relatively high recorded doses of external whole-body radiation received by their fathers employed at the nuclear power plant prior to conception.", "18. Following the publication of this report, two cases were brought against the authority responsible for the Sellafield reactor by plaintiffs who had contracted leukaemia and non-Hodgkin’s lymphoma respectively, claiming that their fathers’ employment at Sellafield had caused their illnesses. The two cases were heard concurrently in the High Court of Justice, London, on ninety days between October 1992 and June 1993. Over thirty expert witnesses gave oral evidence before the court and approximately one hundred written reports were submitted, primarily directed at the question whether the statistical association found by Dr Gardner could be relied upon and was directly causal, as claimed by the plaintiffs.", "19. Judgment was given by Mr Justice French on 8 October 1993.", "He found, inter alia, that the Gardner Report was “a good study, well carried out and presented”. However, certain technical criticisms which had been made of it were valid so as to diminish confidence in its conclusions and underline the need to seek confirmation from other independent studies before relying on it. He did, however, find that the evidence bore out a strong prima facie association between paternal preconceptional irradiation and childhood leukaemia in Seascale, although considerable reserve was necessary before it could be concluded that there was a causal link.", "Although the judge was content to assume that there was a heritable component to the plaintiffs’ diseases, he considered that this was very small. He placed particular reliance on studies of the children of survivors of the Nagasaki and Hiroshima bombings, which did not show any significant increase in leukaemia or non-Hodgkin’s lymphoma, and were therefore quite inconsistent with the Gardner hypothesis. One of the defendant’s witnesses, Sir Richard Doll, had referred to research emphasising the role of infection in causing childhood leukaemia, particularly in areas where unusual population mixing had occurred, as was the case in Seascale, which had a very mobile population of high socio-economic class situated in a remote rural area. The judge found that a theory of causation based on such factors, combined with chance, was no less plausible than the Gardner hypothesis.", "In conclusion, he held that, “on the evidence before me, the scales tilt decisively in favour of the defendants, and the plaintiffs, therefore, have failed to satisfy me on the balance of probabilities that paternal preconceptional radiation was a material contributory cause of the Seascale excess or, it must follow, of [their diseases]” ( Reay v. British Nuclear Fuels PLC; Hope v. British Nuclear Fuels PLC [1994] 5 Medical Law Reports 1 ‑ 55; and see also ‘Childhood leukaemia and Sellafield : the legal cases’, Journal of Radiological Protection, vol. 14, no. 4, pp. 293–316).", "PROCEEDINGS BEFORE THE COMMISSION", "21. In her application to the Commission (no. 23413/94) of 21 April 1993, the applicant complained under Articles 2 and 3 of the Convention that she had not been warned of the effects of her father’s alleged exposure to radiation, which prevented pre- and post-natal monitoring that would have led to earlier diagnosis and treatment of her illness. In addition, she claimed to have been subjected to harassment and surveillance, in breach of Article 8.", "22. On 28 November 1995 the Commission declared the application admissible in so far as it related to the complaints under Articles 2 and 3 about failure to advise and inform the applicant’s parents about her father’s alleged exposure to radiation. In its report of 26 November 1996, (Article 31), it expressed the unanimous opinion that there had been no violations of Articles 2 and 3. The full text of the Commission’s opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment [3].", "FINAL SUBMISSIONS TO THE COURT", "23. The Government, in their written and oral pleadings, asked the Court to find no violation of the Convention.", "The applicant asked the Court to find violations of Articles 2, 3, 8 and 13 of the Convention, and to award her damages under Article 50.", "as to the law", "i. alleged violations of article 2 of the convention", "24. Before the Court, the applicant claimed that both the State’s failure to warn her parents of the possible risk to her health caused by her father’s participation in the nuclear tests, and its earlier failure to monitor her father’s radiation dose levels, gave rise to violations of Article 2 of the Convention, which provides, in paragraph 1:", "“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”", "A. Arguments of those appearing before the Court", "1. The applicant", "25. The applicant maintained that the respondent State had deliberately exposed her father and the other servicemen stationed on Christmas Island to radiation for experimental purposes. In support of this contention, she referred to a number of documents, including a 1953 report of the British Defence Research Policy Committee on Atomic Weapons, which requested tests to be carried out during future atomic weapons trials on the effects of different types of explosion on “men with and without various types of protection”; a 1955 Royal Air Force (“RAF”) memorandum which stated that “during the 1957 trials [in Maralinga, Australia] the RAF will gain invaluable experience in handling the weapons and demonstrating at first hand the effects of nuclear explosions on personnel and equipment”; and a 1957 War Office circular, again related to the tests in Australia, which stated that “all personnel selected for duty at Maralinga may be exposed to radiation in the course of their military duties”.", "26. She stated that, as early as 1946, serious concern had been expressed, for example in letters to the Lancet (a leading British medical journal), about the genetic effects of radiation. In 1947, the Medical Research Council of Great Britain (“MRC”)’s Committee on the Medical and Biological Applications of Nuclear Physics had reported that “all quantitative experiments show that even the smallest doses of radiation produce a genetic effect…”. In 1956 the MRC found, inter alia, that “doses of radiation which are of no known significance to the individual may have genetic consequences” and recommended, in connection with those exposed to radiation used for medical or industrial purposes, that “a personal record … should be kept for all persons whose occupation exposes them to additional sources of radiation”.", "27. She alleged that, despite or because of this evidence, in order to avoid liability for any subsequent health problems caused by the Christmas Island tests, the military authorities had decided not to monitor the servicemen’s individual radiation dose levels or to provide them with any information as to the possible health consequences, for themselves and their future offspring, of their presence on the island. It could not, therefore, be known with any certainty whether or not her father had been exposed to dangerous levels of radiation. However, a report prepared by Mr J.H. Large, a chartered engineer who had studied, inter alia, a number of photographs of the detonation on Christmas Island of 28 April 1958 (“Grapple Y”), suggested that this bomb was detonated at approximately 1,000 to 1,250 metres above ground, which would have resulted in a substantial mass of surface debris being swept up, subjected to intense irradiation, and then, depending on meteorological conditions, possibly scattered as radioactive fall-out over a radius of 50 to 100 miles.", "28. The applicant considered that her father’s unmonitored exposure to radiation was the probable cause of her childhood leukaemia.", "She submitted that the decision in Reay and Hope v. British Nuclear Fuels PLC (see paragraph 19 above) was not conclusive, for a number of reasons. First, the judge had been wrong to rely on the results of the studies of the children of Hiroshima and Nagasaki survivors, since these studies had depended on acquiring information from a foreign and hostile population in the chaotic conditions following the bombings. Moreover, the studies had only acquired data over a four-year period (1947–51), whereas childhood leukaemia had its highest mortality rate in the first five years of life. Secondly, she pointed out that the plaintiffs’ leading expert witness, Professor T. Nomura, whose five reports on radiation-induced transgenerational carcinogenesis in mice were admitted in evidence, had been unable to attend to give oral evidence at the hearing.", "She submitted that subsequent research had confirmed the correctness of the Gardner hypothesis (see paragraph 17 above). For example, a study carried out by members of the Russian Academy of Sciences, the Mogilev Research Institute for Radiation Medicine and the University of Leicester Genetics Department had found a 50% increase in genetic mutations in children born in 1994 to parents exposed to radiation following the 1986 Chernobyl disaster, and British and American researchers had found an association between medical X-ray exposures of male patients and lower birth weight in their offspring (‘Human minisatellite mutation rate after the Chernobyl accident’, Nature, vol. 380, pp. 683–86; ‘Association between preconception parental X-ray exposure and birth outcome’, American Journal of Epidemiology, vol. 145, no. 6, pp. 546–51). In addition, a report prepared for the BNTVA in 1992 had found that one in five of the 1,454 nuclear test veterans included in the survey had children with illnesses or defects which could have had a genetic origin.", "29. The applicant claimed that, had the State provided her parents with information regarding the extent of her father’s exposure to radiation and the risks which this engendered, and monitored her health from infancy, it would have been possible to diagnose her leukaemia earlier and to provide her with treatment which could have alleviated the risk to her life. She provided the Court with the report of Dr Irwin Bross, former Director of Biostatistics at Roswell Park Memorial Institute for Cancer Research (New York), which stated that, by the early 1960s, treatments had been developed in the United States, and were coming into world-wide use, which had been proved successful in clinical trials in producing prolonged remissions in childhood leukaemia. Dr Bross considered that, depending on the attitude of the doctors who attended the applicant, such treatment could have been commenced at first diagnosis, which could have avoided the life-threatening stage of the disease.", "In the applicant’s comments in response to Professor Eden’s report (see paragraphs 8 above and 33 below), Dr Bross emphasised that it could not at this stage be known whether Ms L.C.B. should have been diagnosed with the myeloid or the lymphatic form of leukaemia, and that, had she in fact suffered from acute lymphatic leukaemia, this would destroy the basis of Professor Eden’s conclusion that earlier detection and intervention would not have improved her prognosis.", "2. The Government", "30. The Government submitted that they could not be held responsible for alleged breaches of the Convention which occurred prior to 14 January 1966, when the United Kingdom recognised the competence of the Commission to receive individual petitions and the jurisdiction of the Court (see paragraph 20 above). Between that date and October 1970, when the applicant was diagnosed with leukaemia, the State authorities had had no cause to give advice or information to her parents, for the following reasons.", "31. In the first place, there was no reason to believe that her father had been exposed to dangerous levels of radiation, as was shown by contemporaneous samples of environmental radiation taken on Christmas Island. Contrary to Mr Large’s assessment (see paragraph 27 above), the Grapple Y detonation at Christmas Island had taken place at 2,500 metres above ground level. At that height, any fall-out would have passed rapidly into the upper atmosphere to be distributed over a number of months as global fall-out. There had certainly been no intent to expose the servicemen to radiation: an experiment of the kind alleged would have been not only scandalous, but also pointless, since by the 1950s a considerable amount of information about the effects of radiation on the human body had already been derived from the survivors of the Hiroshima and Nagasaki bombs. The documents relied on by the applicant in this connection had been presented out of context and did not support the implications she had sought to draw from them.", "32. In any case, they submitted that the best scientific interpretation of the available evidence was that it did not support the existence of any causative link between the exposure of parents to radiation and the onset of leukaemia in their children. The most substantial study on the subject was that of 30,000 children born to survivors of the Hiroshima and Nagasaki bombs between 1946 and 1982, which found no statistically significant increase in leukaemia. The studies relied on by the applicant in this respect were by no means conclusive. Moreover, the High Court judge, sitting in the cases of Reay and Hope v. British Nuclear Fuels PLC (see paragraph 19 above), having considered the reports of one hundred expert witnesses and the oral evidence of thirty, decided that the causal link between preconception parental radiation and leukaemia in children had not been established.", "33. Finally, in response to the evidence of Dr Bross (see paragraph 29 above), the Government submitted a report by Professor Osborn B. Eden, Professor of Paediatric Oncology at the University of Manchester, who stated that Dr Bross’s comments applied essentially to acute lymphatic leukaemia, rather than the form of the disease with which the applicant appeared to have been diagnosed in 1970, namely acute myeloid leukaemia (although, with the passage of time, it was not possible to ascertain whether this had been the correct diagnosis). From an extensive review of the literature, he could find no evidence to support the proposition that truly effective treatment was available for acute myeloid leukaemia throughout the 1960s. Moreover, he did not consider that an earlier diagnosis could have been made or that it would have made any difference to the outcome.", "3. The Commission", "34. The Commission, which had not had the benefit of seeing the reports of either Dr Bross or Professor Eden, found that the applicant had not demonstrated that earlier diagnosis and treatment of her disease could have altered its fatal nature or alleviated her physical or mental suffering in any way. Accordingly, whether or not Article 2 was applicable, her complaints did not disclose a violation.", "B. The Court’s assessment", "1. Scope of the case under Article 2", "35. The Court observes that the applicant’s complaint about the failure of the respondent State to monitor the extent of her father’s exposure to radiation on Christmas Island was not raised before the Commission (see paragraph 21 above). It reiterates that the scope of its jurisdiction is determined by the Commission’s decision on admissibility, it having no power to entertain new and separate complaints not raised before the Commission (see, inter alia, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, pp. 277 ‑ 78, § 63). In any case, this complaint is based on events which took place in 1958, before the United Kingdom’s Articles 25 and 46 declarations of 14 January 1966 (see paragraph 20 above).", "It follows that the Court has no jurisdiction to consider it.", "2. Assessment of the complaint concerning failure to take measures in respect of the applicant", "36. The applicant complained in addition that the respondent State’s failure to warn and advise her parents or monitor her health prior to her diagnosis with leukaemia in October 1970 had given rise to a violation of Article 2 of the Convention.", "In this connection, the Court considers that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (cf. the Court’s reasoning in respect of Article 8 in the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998-I, p. 227, § 58, and see also the decision of the Commission on the admissibility of application no. 7154/75 of 12 July 1978, Decisions and Reports 14, p. 31). It has not been suggested that the respondent State intentionally sought to deprive the applicant of her life. The Court’s task is, therefore, to determine whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicant’s life from being avoidably put at risk.", "37. The Court notes that the applicant’s father was serving as a catering assistant on Christmas Island at the time of the United Kingdom’s nuclear tests there (see paragraph 12 above). In the absence of individual dose measurements, it cannot be known with any certainty whether, in the course of his duties, he was exposed to dangerous levels of radiation. However, the Court observes that it has not been provided with any evidence to prove that he ever reported any symptoms indicative of the fact that he had been exposed to above-average levels of radiation.", "The Court has examined the voluminous evidence submitted by both sides relating to the question whether or not he was so exposed. It notes in particular that records of contemporaneous measurements of radiation on Christmas Island (see paragraph 31 above) indicate that radiation did not reach dangerous levels in the areas in which ordinary servicemen were stationed. Perhaps more importantly for the issues under Article 2, these records provide a basis to believe that the State authorities, during the period between the United Kingdom’s recognition of the competence of the Commission to receive applications on 14 January 1966 and the applicant’s diagnosis with leukaemia in October 1970, could reasonably have been confident that her father had not been dangerously irradiated.", "38. Nonetheless, in view of the lack of certainty on this point, the Court will also examine the question whether, in the event that there was information available to the authorities which should have given them cause to fear that the applicant’s father had been exposed to radiation, they could reasonably have been expected, during the period in question, to provide advice to her parents and to monitor her health.", "The Court considers that the State could only have been required of its own motion to take these steps in relation to the applicant if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health.", "39. Having examined the expert evidence submitted to it, the Court is not satisfied that it has been established that there is a causal link between the exposure of a father to radiation and leukaemia in a child subsequently conceived. As recently as 1993, the High Court judge sitting in the cases of Reay and Hope v. British Nuclear Fuels PLC, having examined a considerable amount of expert evidence, found that “the scales tilt[ ed ] decisively” in favour of a finding that there was no such causal link (see paragraph 19 above). The Court could not reasonably hold, therefore, that, in the late 1960s, the United Kingdom authorities could or should, on the basis of this unsubstantiated link, have taken action in respect of the applicant.", "40. Finally, in the light of the conflicting evidence of Dr Bross and Professor Eden (see paragraphs 29 and 33 above), and as the Commission also found (see paragraph 34 above), it is clearly uncertain whether monitoring of the applicant’s health in utero and from birth would have led to earlier diagnosis and medical intervention such as to diminish the severity of her disease. It is perhaps arguable that, had there been reason to believe that she was in danger of contracting a life-threatening disease owing to her father’s presence on Christmas Island, the State authorities would have been under a duty to have made this known to her parents whether or not they considered that the information would assist the applicant. However, this is not a matter which the Court is required to decide in view of its above findings (see paragraphs 38–39).", "41. In conclusion, the Court does not find it established that, given the information available to the State at the relevant time (see paragraph 37 above) concerning the likelihood of the applicant’s father having been exposed to dangerous levels of radiation and of this having created a risk to her health, it could have been expected to act of its own motion to notify her parents of these matters or to take any other special action in relation to her.", "It follows that there has been no violation of Article 2.", "ii. alleged violation of article 3 of the convention", "42. The applicant complained that the matters referred to in connection with Article 2 amounted in addition to ill-treatment contrary to Article 3 of the Convention, which provides:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "43. For the reasons referred to in connection with Article 2 (see paragraph 41 above), the Court does not find it established that there has been a violation by the respondent State of Article 3.", "iii. alleged violations of articles 8 and 13 of the convention", "44. The applicant complained before the Court that the State’s failure to measure her father’s individual exposure to radiation and its withholding of contemporaneously produced records of the levels of radiation on Christmas Island constituted violations of Articles 8 and 13 of the Convention, which provide respectively:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Article 13", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "45. The Court recalls that these complaints were not raised before the Commission (see paragraph 21 above). It therefore has no jurisdiction to consider them (see paragraph 35 above).", "46. The Court observes that, in principle, it would be open to it to consider in relation to Article 8 the applicant’s complaint regarding the State’s failure of its own motion to advise her parents and monitor her health prior to her diagnosis with leukaemia (see the above-mentioned Guerra and Others judgment, pp. 222–24, §§ 39–46). However, having examined this question from the standpoint of Article 2, it does not consider that any relevant separate issue could arise under Article 8, and it therefore finds it unnecessary to examine further this complaint." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants, Mr. Mehmet Özel, Mr Ali Kılıç, Mr İsmail Erdoğan, Mr Salim Çakır, Mrs Betül Akan, Mrs Menekşe Kılıç, Mrs Güher Erdoğan and Mrs Şehriban Yüce (Ergüden), were born in 1974, 1955, 1938, 1954, 1960, 1956, 1927 and 1966 respectively.", "A. Circumstances surrounding the deaths of the applicants ’ relatives", "1. The apartment blocks built in Çınarcık", "7. The Çınarcık Municipal Council, meeting in October 1994, adopted a decision increasing to six storeys the authorised height of the blocks covered by the building permits which had been issued to property developers for the construction of apartment blocks in Kocadere, on allotment 987, plot 1, and allotment 1257, plot 1. Pages 7 and 8 of the minutes of that meeting, recording the Municipal Council ’ s discussions, comprise the following exchange:", "“ H.D .: ... at the Municipal Council meeting of 17.10.1994 [the height of buildings in] the restricted zone was raised to six storeys in Kocadere, where, on the worksite belonging to K.P., [ the blocks were already ] six storeys high. [ During ] the on-site visit it was noted that there were two more six-storey buildings in Kocadere. I think the decision we took at the time was insufficient. I am therefore requesting a modification of the restricted zone for sites comprising six-storey blocks of flats...", "The Mayor : ... As I said at the 17.10.1994 meeting, our friend here is proposing legalising the six-storey buildings which have been completed, without bothering about the mistakes made in the past ... I repeat what I said at the June meeting: let us correct, rather than mull over, our past mistakes. I acknowledge that mistakes have been made. But from now onwards no one will be able to add an extra storey, we will not allow it. And it was not us that made the mistake. That was already the situation when we arrived [in the municipality].", "N.P.: Mr Mayor, three persons have built six -storey blocks in Kocadere. What a cheek! And we subsidise these builders.. V.G. has built six -storey blocks on the site ... Who was asked for authorisation? ... I don ’ t have to clean up his mess! In June we decided that he should coat [ the buildings ] in concrete. He should just bury them... the municipality should revise the plans for the whole Kocadere region and authorise six storeys ...", "Y.B.: The new Municipal Council has been in place for seven months now. Have we visited the site where K.P. ’ s and V.G. ’ s buildings stand to record our findings and impose a fine? What exactly have we done so far?", "The Mayor : They are standing trial. As things stand [ their buildings ] are not lawful. They have put up five - to six-storey buildings, which is against the law ... We at no stage authorised their construction. There are two or three blocks. Either we authorise the six storeys or they will have to be demolished... If you ask me, I think that action should have been taken earlier on this situation ... we should now just leave this mess alone and issue a decision authorising the six storeys, thus correcting the mistake. After which we will not allow any more such buildings...", "Y.B.: Mr Mayor, you did not answer my questions. What has been done about these blocks over the last seven months?", "The Mayor : As I say, the builders are being prosecuted. Representatives of the housing department have inspected the site and the municipality has fined certain persons. Furthermore, we will not issue permits [ for ] these buildings before ... having imposed fines of two or three million Turkish lire ...", "...", "M.P : Mr Mayor, the fine you mentioned is the second stage in proceedings. I would remind you that the first stage, [ relating to ] your responsibility as Mayor, is to implement section 32 of the Urban Planning Act (Law No. 3194). Pursuant to that legislative provision, apart from [ cases of ] constructions which are exempt from the permit requirement, where the authorities have determined that construction work has begun without a permit or the work is incompatible with the permit and its appendices, the Municipality or the Office of the Governor must immediately visit the site and work must stop forthwith. You have been in office for six months now: have you, or have you not, honoured that obligation?", "The Mayor : ... I repeat that I did not authorise the buildings in question... They had already been finished and roofed when I took up my duties.", "... ”", "8. On 8 and 12 June 1995 a Çınarcık resident complained to the Directorate General for Research and Implementation of the Ministry of Housing and Public Works about the alleged unlawfulness of the buildings constructed in the Çınarcık municipality by the V.G. company.", "9. The Çınarcık Municipal Council held a meeting on 13 October 1995, during which the Municipal Head of Technical Services informed the councillors of the criteria for amending the municipal urban planning scheme. The minutes of the deliberations of the Municipal Council read as follows :", "“ The Municipal Head of Technical Services: Mr Mayor, I would like to remind you of the provisions of the urban planning scheme on the addition of extra storeys to buildings for which permits have been issued. According to these provisions, two conditions must be met for such work: the first relates to the width of the street, and the second concerns technical and social infrastructure. I would just inform the Council that neither of these conditions is fulfilled in the applications submitted for adding storeys to the buildings.", "...", "Failure to comply with the conditions laid down in the regulations carries a criminal penalty ... The decision is yours ... ”", "Following these discussions, the Municipal Council accepted several applications for amendments to the municipal urban planning scheme.", "10. On 4 October 1996 the Ministry of Housing and Public Works ( the “ Housing Ministry ” ) invited the Office of the Governor of Yalova to order the municipality in question to take the requisite legal action on the buildings constructed in breach of urban planning regulations, to monitor the action taken by that municipality and to keep the Çınarcık resident who had complained to the aforementioned directorate informed of the situation.", "11. On 7 October 1996 the Municipal Council agreed that the number of storeys authorised for the buildings already constructed could be increased from five to six.", "12. On 30 May 1997 the Housing Ministry invited the Governor of Yalova to adopt the urgent measures set out in sections 32 and 42 of the Urban Planning Act ( see Relevant Domestic Law, paragraph 134 below ) in respect of the buildings and the real estate developers at issue.", "13. On 18 August 1997 the Office of the Governor of Yalova informed the Housing Ministry that despite the transmission of the latter ’ s orders to the municipality in question, the latter had failed to take any action.", "14. By letter of 15 September 1997 the Housing Ministry invited the Office of the Governor of Yalova to issue the municipality with a final warning on the need to comply with its orders, failing which action would be taken against all persons failing to comply with their obligations under the Urban Planning Act.", "15. On 15 October 1998 the Housing Ministry reminded the Office of the Governor of Yalova that section 32 of the Urban Planning Action prohibited amendments to urban planning schemes geared to legalising buildings which failed to comply with their building permits, and in fact required the authorities to correct any incompatibility with those permits.", "2. The 17 August 1999 earthquake and the destruction of the buildings in Çınarcık", "16. During the night of 17 August 1999 the Izmit region, located on the coast of the Marmara Sea, was hit by an earthquake of a magnitude of 7. 4 on the Richter scale. The earthquake was one of the deadliest to hit Turkey in recent years. According to official statistics, it killed 17,480 persons and injured 43, 953 [1].", "17. Seventeen buildings were destroyed in the municipality of Çınarcık, ten of them in the so-called Çamlık sitesi [2] and Kocadere sitesi [3] estates. On those estates 195 persons lost their lives and hundreds of others were injured as their dwellings collapsed.", "18. Seher Özel, the mother of Mrs Akan and Mr Özel, Mehmet and Şadiye Yüce, the parents of Mrs Yüce (Ergüden), Hasan Kılıç, the son of Mr and Mrs Kılıç, Kazim Erdoğan, the son of Mr and Mrs Erdoğan, and Can Çakır, the son of Mr Çakır, were buried under the rubble of the blocks of flats in Çınarcık, where they had been when the earthquake struck. Mr Çakır was himself trapped beneath the rubble for about ten hours. Mrs Yüce (Ergüden) was injured, and personally rescued her daughter from the debris. Mrs Akan had also been trapped under the rubble for several hours.", "19. According to a medical report of 18 August 1999 drawn up by a doctor working at the Bursa hospital, Mr Çakır had been placed under observation : he had suffered burns to various parts of his body and display whole- body trauma and respiratory problems.", "20. On 24 August 1999 the Yalova public prosecutor visited Çınarcık together with technical experts and officers from the Directorate of Security. On the same day official inspection reports were drawn up on the Çamlık estate, covering allotment 1648/15-1, plot 7, sections C, D and E, allotment 1649/15-1, plot 3, and allotment 1927/15-1, plot 1, section E. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the material used for the construction had been sea-sand based and that as a result the cement had lost its binding capacity.", "21. On 25 August 1999 the Yalova public prosecutor and a group of technical experts visited the Kocadere estate. On the same day they drew up official reports on allotment 1258/3-2, plot 1, allotment 1256/3 ‑ 2, plot 5, section D, and allotment 1257/3-2, plot 1. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the concrete displayed a very poor granulometry, that the concrete had not been cured, that the metal brackets in the buildings had not been properly fastened to the columns, and that because of the corrosion of the brackets the iron had worked loose from the concrete.", "22. Moreover, on 13 September 1999 Mrs Akan had requested that the Yalova Regional Court determine, on the basis of the evidence gathered, the causes of the collapse of building D2 on allotment 1649-15/1, plot 3, in the Çamlık estate, under whose rubble her mother had died, and establish the relevant responsibilities. An expert opinion was commissioned to that end on the same day.", "23. On 13 October 1999 the expert opinion commissioned set out the following findings:", "“ ...", "(d) Defects noted upon examination of the collapsed building, the rubble and the construction blueprint.", "1. The height of the building was increased by 2. 80 m by raising the basement above ground level, thus transforming it into the ground floor.", "2. The foundations of the building were raised to soft ground (topsoil ) level, which had low stability in terms of ground safety stress; the stability calculations ... were at no point revised.", "3. The overall weight of the building was increased by the addition of an extra storey as compared with the number of storeys set out in the blueprint ...", "4. Neither the basement included on the plan, whose existence would have greatly increased earthquake resistance, nor the reinforced concrete retaining walls, which, according to the plans, were to have surrounded the basement, were ever built.", "5. The mussel shells found in the pieces of concrete in the rubble showed that the sea sand and gravel had been used without sifting or sorting, which had been a major factor in diminishing the concrete ’ s resistance.", "6. It was noted that the reinforcing rods inside the concrete had rusted, suggesting that sea sand and gravel had been used unwashed and that the sea salt had corroded the metal.", "7. The broken beams found in the rubble showed that the 20- cm distances between the brackets had not been respected, and in some places the interstices measured 30 cm ...", "8. ... The stress testing carried out on the samples showed that their stress resistance was only half what it should have been.", "In conclusion : ... The building was constructed without any kind of technical control; another storey in addition to the number of storeys mentioned in the blueprint was added at the owner ’ s request in order to increase the number of housing and commercial units. Furthermore, the fact that the municipality failed to stop the building work raises issues. It is therefore necessary to ascertain whether a permit was issued for the building ’ s shallow foundations, which were, in fact, incompatible with the blueprint as from the first storey. If such a permit was issued, it is necessary to identify the persons working for the municipality who approved that permit and whether or not an occupancy permit was granted by the Çınarcık municipality. If so, it is necessary to establish the identities of the signatories of that occupancy permit. It is possible that other blocks have been built without inspection by the Çınarcık municipality. The photographs taken show buildings with seven storeys above ground level and others with two storeys. It is therefore necessary to establish the reasons for this architectural disparity and the regulations applied to the construction.”", "B. Criminal prosecution of the real estate developers", "24. On 6 September 1999 the Yalova public prosecutor took statements by V.G., the real estate developer responsible for buildings which collapsed in Çınarcık. V.G. stated that he had been working in the real estate field for nine years and that he had constructed numerous buildings with his partnership, the company V.G., and with the company G. Arsa. He agreed to shoulder responsibility for the shortcomings in the buildings which he had erected himself, but not for the defects relating to other buildings in which individuals had died during the earthquake and which he had merely sold. He also submitted that the buildings located on allotment 1927/15-1, plot 1, section D, allotment 1649/15-1, section C, and allotment 1649/15-1, plot 3, section D, had been constructed by İ .K. and Z.C. He did not know who had constructed the buildings in the Çamlık estate which had collapsed. He added that he was neither a construction engineer nor an architect, and that was why he called on the services of persons with expert knowledge of these fields, who should, in his view, be held responsible.", "25. V.G. was remanded in custody the same day.", "26. On 14 September 1999 the Yalova public prosecutor charged five individuals : the partners in the company V.G. Arsa Ofisi, to wit V.G., C.G. and Z.C., and also the company ’ s scientific officers, to wit D.B. and İ. K. They were charged with having caused, through negligence and recklessness, the deaths of 166 persons, buried under the rubble of three buildings which they had constructed in breach of the relevant norms. It transpired from the indictment that several site sections – section E on allotment 1927, sections C and D on allotment 1649, and sections A, C, D and E on allotment 1648 – had been built in Çınarcık, on Çamlık square, and that three buildings, which had totally collapsed, had been erected in the Kocadere estate, on Hanburnu square, on allotments 1256 and 1258. It also transpired from the indictment that the experts who had taken samples from the collapsed buildings had, in particular, found as follows : in the buildings in question, the iron brackets had not been tightened at the interstice between the beams and the columns; mussel shells had been found in the concrete, resulting in low resistance owing to the use of sea sand and sea gravel; the distance between the columns and the beam brackets was 40 cm in places; and there was insufficient iron in some of the columns.", "27. Criminal proceedings were commenced before the Yalova Criminal Court.", "28. In September 1999 İ .K., D.B. and C.G. were remanded in custody in absentia by the Yalova Criminal Court.", "29. On 30 September 1999 Z.C. was remanded in custody.", "30. On 6 October 1999 the Yalova public prosecutor wrote to the General Directorate of Criminal Affairs of the Ministry of Justice to inform it of the following facts : a large number of articles had been published in the local and national press about V.G.; given the very large number of deaths involved, the trial would be attended by many journalists and also numerous relatives of the victims; there was likely to be a very tense atmosphere during the hearings; Yalova prison had been closed following the earthquake and the prisoners were therefore housed in the Bursa prison; the courtroom would be too small for the number of persons attending proceedings; there were credible risks of the accused being abducted or murdered; and any preventive measures which the security forces would be able to put in place would be insufficient, such that it would be better to transfer the case to a different court.", "31. On 14 October 1999 the General Directorate of Criminal Affairs of the Ministry of Justice invited the State Prosecutor with the Court of Cassation to transfer the case from the Yalova Criminal Court to a different criminal court pursuant to Article 14 in fine of the Code of Criminal Procedure, in order to guarantee public security during the proceedings.", "32. On 15 October 1999, before the start of proceedings before the Yalova Criminal Court, the Court of Cassation, to whom the matter had been referred, decided to transfer the case to the Konya Criminal Court [4] for reasons of security during the proceedings and of the accused ’ s safety.", "33. On 19 October 1999, therefore, the Yalova Criminal Court transferred the case file to Konya Criminal Court.", "34. On 20 October 1999 Mr Çakır applied to join the proceedings as a third party. On the same day Mrs Akan and Mr Özel also applied to join the proceedings as third parties, and declared that they reserved their rights as potential civil parties.", "35. On 29 October 1999 Mr and Mrs Erdoğan and Mr and Mrs Kılıç lodged similar applications, and Mr Çakır reiterated his request.", "36. On 20 November 1999 Mr Çakır forwarded a memorial requesting the criminal conviction of V.G. and his partners and stating that he reserved his rights vis-à-vis claiming compensation for the pecuniary and non ‑ pecuniary damage which he considered he had sustained.", "37. On 29 November 1999, after the case had been transferred to the Konya Criminal Court, Mr Çakır once again applied to take part in proceedings as a third party, and declared that he reserved his rights as potential civil party to proceedings. Mrs Yüce (Ergüden) also applied to take part in the criminal proceedings as a third party. Similarly, counsel for Mrs Akan and Mr Özel submitted a third-party application on behalf of each of her clients.", "38. On 29 December 1999 Mr and Mrs Erdoğan applied to participate in proceedings, reserving their rights as potential civil parties. They submitted that they had sustained serious mental suffering and also pecuniary damage as a result of the loss of their son. Mr and Mrs Kılıç also lodged a third ‑ party application. Mr Çakır was heard as a victim, and he gave evidence against the accused. Counsel for Mr Çakır requested the admission of his client ’ s application to take part in proceedings. At the conclusion of the hearing held on the same day, the Konya Criminal Court admitted that third ‑ party application.", "39. On 28 January 2000 the Konya Criminal Court examined Mr and Mrs Erdoğan ’ s third -party application, and noted that their son ’ s name was not on the list of deceased victims set out in the indictment. The court therefore requested submissions from those two applicants, including fresh information on the deceased persons. In a memorial of the same day, Mr and Mrs Erdoğan requested that charges be pressed against the officials allegedly responsible for the impugned acts.", "40. During the hearing of 21 February 2000 the Konya Criminal Court questioned the victims, the accused and their lawyers. Mr Çakır was examined in his capacity as a third party, and he requested the conviction of the accused and the commencement of proceedings the municipal officials in question.", "41. According to the official record of the hearing held on 20 March 2000, Mrs Akan, Mrs Yüce (Ergüden) and Mr Çakır had been examined as third parties: Mrs Akan had demanded the conviction of the accused and also requested that charges be brought against the official in question in the framework of those proceedings; and counsel for Mr Çakır had also demanded the conviction of those officials. At the conclusion of the hearing, the State Prosecutor was asked for information on the measures adopted by his Office regarding the provincial officials, as well as those working in the Çınarcık municipality and the Housing Ministry. Furthermore, V.G. and Z.C. were released on parole.", "42. On 21 April 2000 Mr Çakır once again requested the prosecution of the Mayor of Çınarcık and of the municipal Head of Technical Services and Architecture. Mr and Mrs Kılıç were granted third- party status in the proceedings.", "43. On 30 June 2000 Mr Erdoğan was granted third-party status in the proceedings. Mr Çakır was heard as a third party, and he requested an additional indictment in order to involve in the proceedings the municipal officials who had authorised the construction of the buildings which had collapsed. Counsel for Mrs Akan reiterated a request previously submitted for provisional measures covering all of V.G. ’ s assets.", "44. On 22 September 2000, during the proceedings, the Yalova public prosecutor once again charged the five accused persons with having caused the deaths of several other persons through negligence and recklessness.", "45. On 12 October 2000 three experts from the Istanbul Technical University prepared a report on their inspection of ten buildings which had collapsed, seven of them in the Çamlık estate and three in the Kocadere estate.", "The conclusions of this expert report read as follows :", "“ Tectonics and seismic activity in the region between Çınarcık et Yalova", "... This region is one of the most dangerous in seismic terms, which is why it has been marked out as a major hazard area on the map of Turkish seismic regions.", "Impact of the Izmit earthquake of 17 August 1999 on the region between Çınarcık and Yalova", "The 17 August 1999 earthquake, which was of a magnitude of 7. 4 on the Richter scale and whose epicentre was at Izmit, created a 120-km-long superficial fault from Gölcük to Akyazı ... The fault segment was interrupted at a distance of 50 km from Çınarcık ... The primary causes of the destruction were the nature of the soil and the quality of the construction methods.", "Conclusions", "The coastal zone between Çınarcık and Yalova is an extremely dangerous region in seismic terms ... The Çamlık estate, which collapsed, had been built on an active rockslide area and on particularly soft soil. In such a high seismic risk region there can be no valid reasons for issuing building permits for six - or seven-storey buildings on such soft soil. Moreover, the fact that six -storey building located 300 m away in the Çamlık estate which had been erected on soil with similar characteristics were not damaged and that people are still living in them support the hypothesis that the buildings in the Çamlık estate had building defects.", "...", "Appraisal of the blueprints and the permits", "...", "Assessment of the blueprints showed the absence of documents attesting that soil studies had been carried out on the land where the buildings were to be constructed...", "Expert reports included in the case file", "The expert appraisals commissioned by the Yalova public prosecutor ... highlighted the following shared defects :", "– Concrete resistance was unsatisfactory. The granulometric composition of the aggregates used for the concrete was inadequate and the concrete contained mussel shells. It was established that the cement dosage had been insufficient and that the sand had not been properly cleaned.", "– The metal brackets on the load-bearing parts had not been reinforced and the anti-rust fixtures [ paspayı ] were unsatisfactory ... Incipient corrosion on some of the reinforcing rods had weakened their adherence to the concrete.", "– ...", "– The softness of the soil was established.", "Establishing the responsibility of the accused persons and conclusions", "The owner and developer of all the impugned buildings [ which ] collapsed during the 17 August earthquake is the “ V.G. Arsa ofisi ” partnership. The founding partners of that company are İ.K., Z.C., C.G. ... Assessment of the evidence and documents contained in the case file shows that V.G. was the actual organiser [ of the project ] ... For this reason V.G. ’ s responsibility is estimated at 2/8.", "The responsibility of the public authorities which allowed the urban development of the Çamlık and Hanburnu neighbourhoods, authorised the multi-storey buildings there without commissioning the requisite prior geological studies, failed to provide for satisfactory supervision of the projects in the area, failed to request studies of the soil ..., failed to prevent the defective concrete -manufacturing procedures [ and ] failed to monitor the work of those responsible for the technical applications is estimated at 2/8.", "C.G. ’ s responsibility is set at 1. 5/16 and Z.C. ’ s at 1. 5/ 16...", "İ.K. ’ s responsibility is set at 3/16 on the grounds that he was a partner in the V.G. company, but also because he was responsible for the architectural and structural design of seven buildings and for the relevant technical applications...", "D.B. ’ s responsibility is set at 1/8 because he was responsible for the architectural and structural design of three buildings and for the relevant technical applications.", "... ”", "46. On 23 October 2000 the Yalova Criminal Court, to which the case had been referred following the indictment of 22 September 2000 ( see paragraph 44 above ), found that a similar action against the accused was pending and therefore requested the joinder of the two sets of proceedings.", "47. On 22 December 2000 the Konya Criminal Court declined jurisdiction to adjudicate the impugned acts in view of the nature of the offence in question; the case was then referred to the Konya Assize Court.", "48. Between 16 April 2001 and 21 October 2004 the Konya Court Assize held twenty-three hearings.", "At the hearing on 16 April 2001 the State Prosecutor pointed out that transferring the case to Konya was against the procedural regulations and in breach of the rights of the third parties. He stated that the security grounds advanced for that transfer had lapsed and that the proceedings should therefore have continued in Yalova, where the offence had been committed. The applicants also applied for the setting aside of the transfer order in question, submitting that the security grounds advanced no longer applied. On the same day the Konya Assize Court rejected the application, pointing out that pursuant to the case-law of the Court of Cassation the case had to remain before the court to which it had been transferred even if the grounds for the transfer no longer applied. Counsel for Mr Özel, Mrs Akan, Mr and Mrs Kılıç, and Mr and Mrs Erdoğan presented their case during the hearing.", "49. On 26 April 2001 the Istanbul Criminal Court remanded C.G. in custody.", "50. On 3 May 2001 the Konya Assize Court wrote to the Konya public prosecutor requesting the preparation of a further expert report, complementing that of 12 October 2000, on the ruins of the buildings in question in order to establish whether their mode of construction had been in conformity with the original blueprints and whether the materials used had complied with the usual standards.", "51. On 8 June 2001 Mrs Akan gave evidence. She stated that she had lost her mother during the earthquake and had dug her own child out of the rubble. She also submitted that the accused had not been the only parties criminally responsible for the impugned acts, as various municipal officials and members of the Chamber of Architects responsible for the technical oversight of the constructions in question had also been guilty. Counsel for that applicant stated that he had heard, through unofficial channels, that the decision had been taken to broaden the investigation in order to establish the municipal officials ’ responsibility, and he requested information on whether a decision had been taken to prosecute the Mayor of Çınarcık and the official in question. During the 8 June 2001 hearing Mr Çakır also gave evidence as a third party, as did another person, who stated that the Council of State had adopted a decision on 4 October 2000 to the effect that the Mayor of Çınarcık could not be prosecuted ( see paragraph 89 below ).", "On the same day V.G. was once again remanded in custody.", "52. On 11 June and 6 July 2001 the Konya Assize Court wrote to the Office of the Governor of Yalova, asking, in particular, whether any action had been taken against the Mayor of Çınarcık and the other officials liable to be held responsible for the consequences of the earthquake.", "53. On 1 August 2001 V.G. and C.G. were released on parole. In a memorial of the same day, Mrs Akan and Mr Özel requested the indictment of the officials whose responsibility had been engaged for the impugned acts. Mr Çakır also submitted a memorial requesting the conviction of the accused and the prosecution, in the framework of the ongoing criminal proceedings, of the Mayor and the Head of Technical Service and Architecture of Çınarcık municipality.", "54. At the hearing on 1 October 2001 Mr Çakır read out the minutes of meetings of the Çınarcık Municipal Council which, in his view, established that the buildings in the zone at issue had been constructed without prior authorisation. He once again submitted that the municipality and the officials had been responsible for what had happened.", "55. On 11 April 2002 the Assize Court noted that the authorisation for a criminal investigation of the Mayor of Çınarcık and other officials (see paragraph 87 below) previously issued by the Interior Ministry had been set aside by the Council of State ( see paragraph 89 below ) and that the Inspectorate of Administration had adopted an opinion to the effect that there was no need to bring proceedings.", "56. In a memorial of 16 July 2002 Mr Çakır requested the commencement of proceedings against the Mayor of Çınarcık and the Head of Technical Service and Architecture, suggesting that they should be tried in the framework of the criminal proceedings in hand on the ground that they had turned a blind eye to the construction of the impugned buildings.", "57. On 24 July 2002 General Directorate of Local Administration of the Interior Ministry prepared a document for the Assize Court mentioning the following points : (a) the Interior Ministry ’ s 4 May 2000 decision to authorise a criminal investigation had been cancelled on 4 October 2000 by the Council of State, which meant that no action had been taken against the officials in question ( see paragraph 89 below ); (b) a report on an inquiry authorised by the Interior Ministry on 10 September 2001 had also concluded that there were no grounds for proceedings against the officials in question ( see paragraph 91 below ); and (c) another report on an inquiry authorised by the Interior Ministry on 25 January 2002 had concluded that there was no need to prosecute the officials in question ( see paragraph 93 below ).", "58. At the hearing on 17 October 2002 the Assize Court noted that the document from the Directorate General of Local Administration of the Interior Ministry had been read and added to the case file.", "59. In a claim submitted on 11 November 2003 Mr Çakır demanded a certain sum in respect of procedural expenses for the transfer of the case to Konya, and reserved his rights as regards that outlay.", "60. On 18 November 2003 he repeated his request for the indictment of the officials whose responsibility had been engaged.", "61. On 1 March 2004 Mrs Akan and Mr Özel submitted a memorial on the merits in which they relied on Article 6 of the Convention to complain of unfair proceedings and an infringement of the “ natural judge ” principle owing to the transfer of the case to Konya and a breach of the right of prosecution. They considered that their inability to obtain leave of prosecution under the Prosecution of Civil Servants and other Public Officials Act (“Law No. 4483”) with regard to the municipal officials in question was contrary to the principle of equality before the law, as well as Articles 6 and 13 of the Convention.", "62. On 4 May 2004 the Konya Assize Court ordered the separation of the case in hand from that concerning D.B. and İ.K. on the ground that the latter two accused persons had been untraceable for almost three years, thus delaying the proceedings.", "63. On the same day a joint memorial was lodged with the registry of the Konya Assize Court by Mr and Mrs Kılıç and Mr and Mrs Erdoğan, declaring that they reserved their rights to claim civil damages in the criminal proceedings. Mrs Yüce (Ergüden) lodged a third-party memorial stating that owing to the deficiencies and delays in the civil and criminal proceedings the shares held in the accused ’ s company had been sold off, which she considered as jeopardising the chances of success for any future action for damages. She also pointed out that the Mayor of Çınarcık had been given a thirty-five-month prison sentence for the architectural practices implemented in the Çamlık estate ( see paragraph 85 below ), and that he had been removed from office.", "64. On 24 June 2004 İ.K. was remanded in custody.", "65. On 5 July 2004 a fresh expert report was prepared at the Assize Court ’ s request. According to the report, V.G. had been issued with six different building permits, twenty-two blocks had been built in Çınarcık for which no occupancy permit was to be found in the assessment file, and 195 persons had died buried in the rubble of those buildings, 152 of them in the Çamlık estate, 12 in the Kocadere estate and 31 in the V.G. estate. It also transpired from that report that İ .K. had been responsible for the architectural project regarding the buildings in the Çamlık estate, on allotment 1927/15-1, plot 1, allotment 1649/15-1, plot 3 and allotment 1648/15-1, plot 7, and that D.B. had been in charge of the architectural project regarding the buildings in the Kocadere estate, on allotment 1258/3 ‑ 2, plot 1, allotment 1257/3-2, plot 1, and allotment 1256/3 ‑ 2, plot 5. The report also specified that the V.G. company, in which İ .K. and Z.C. had been partners, had been responsible for the construction of all those buildings.", "66. On 14 October 2004 the State Prosecutor presented the prosecution case on the merits. He submitted that 195 persons had died in the estates built by V.G.: 115 persons had been killed on allotment 1925, plot 1, allotment 1648, plot 7, and allotment 1649, plot 3, and 80 other persons in other buildings. Those deaths had been caused not by the earthquake alone but also by the actions of the accused, who had used deficient materials with full knowledge of the risks involved. He demanded the conviction of the accused pursuant to Articles 383/2 and 40 of the Penal Code, insisting that the sentence should be delivered six times, one for each of the building permits issued.", "67. On 21 October 2004 the Assize Court found the accused V.G., C.G. and Z.C. guilty of endangering the lives of others through negligence and recklessness and, pursuant to Article 383/2 of the Penal Code, sentenced each of them to twenty years ’ imprisonment without parole and four years and twelve months ’ [5] imprisonment, and to a fine of 360, 000, 000 Turkish lire [6] (TRL). The Assize Court gave the following reasons :", "“ ... The investigations conducted on the sites and the expert reports drawn up both during the preliminary investigation and during the criminal proceedings showed that the buildings which collapsed as a result of negligent, virtually intentional, acts had been built in breach of many current legal obligations. Even though the area in question had been classified as a major seismic hazard zone, no soil studies had been carried out on the worksites. The concrete, metal and other materials used lacked the necessary resistance. A large number of obligations set out in the blueprint were breached. The buildings thus constructed collapsed under the impact of the earthquake, and those holding responsibility for the collapse of the buildings had made no attempt to avert danger and [ offset ] the unlawful acts committed, such that a direct causal link was established between the negligent acts and the consequences of the collapse of the buildings.", "... The provisions relating to the concurrence of offences are applicable to this case ... The present proceedings concern six different building permits ... Consequently, the accused were held responsible for six different events.", "Having regard to the lists drawn up by the Governor of Çınarcık district and by the Kocadere municipality ... 11 persons lost their lives on plot no. 1, allotment 1927 (1 st section ), 28 on plot no. 3, allotment 1649 (2 nd section ), 76 on plot no. 7, allotment 1648 (3 rd section ) and 2 on plot no. 5, allotment 1256 ( blocks A and B). It has not been established with certainty whether there were any deaths on the other plots. Where it was established that there were deaths, it was also established that buildings collapsed. Therefore, it must be acknowledged that in those buildings people ’ s lives had been jeopardised. Consequently ... the sentencing procedure must involve applying to each of the accused the final sentence of Article 383/2 of the Penal Code, multiplied by four, as regards the deaths which occurred in four zones covered by a permit. As regards the two zones covered by a permit where no loss of life could be established, the first section of Article 382/2 of the Penal Code, multiplied by two, must be applied.", "All the buildings were constructed by the real estate developer, that is to say the ‘ V.G. Arsa Ofisi ’ company ... At the material time the two accused persons V.G. and C.G. had been partners in that company. The accused person Z.C. had also been a partner in the company in respect of the buildings covered by permits. Z.C. had also been the owner of five buildings covered by permits. Insofar as Z.C. was involved in the construction of the buildings, he must be held responsible for all the relevant actions ... Even though permits had indeed been issued for all the building lots, none of them was covered by an occupancy permit, that is to say a permit for utilisation. In this context, since at the time of the offence the company and its partners were still under the obligation to correct the shameful [defects] in the buildings, [ they ] are also criminally liable for the collapse of the latter owing to these disgraceful [ defects ] throughout the whole period ...", "As already stated above, the consequences of the impugned acts amounted to a disaster. Solely because of those acts, 195 persons lost their lives and pecuniary damage was sustained to an extent which is difficult to quantify. The accused bear enormous responsibility for those consequences. As highlighted by the expert reports, using such construction methods in a 100% earthquake risk zone really was a recipe for disaster ... ”", "68. On 4 November 2004 İ .K. was also found guilty of homicide and bodily harm through recklessness. He was sentenced to twenty years ’ imprisonment without parole and four years and twelve months ’ imprisonment, and to a fine of TRL 360,000,000.", "69. The accused appealed on points on law.", "70. By judgment of 27 June 2005 delivered on 6 July 2005 the Court of Cassation set aside the convictions of V.G., C.G. and Z.C. on the following grounds: the fact that a judge had failed to sign the minutes of the 20 March 2000 hearing; conviction for the collapse of a building on allotment 1257, plot 1, which was not mentioned in the indictment; the failure to read out the 22 September 2000 indictment before taking statements from the accused; and the entry into force of the new Penal Code.", "71. By judgment of 18 July 2005 delivered on 20 July 2005 the Court of Cassation also set aside İ .K. ’ s conviction on the following grounds : the conviction for the collapse of a building on allotment 1257, plot no. 1 was not mentioned in the indictment; one judge had failed to sign the minutes of the 20 March 2000 hearing; the criminal prosecution of İ .K. should have been joined to that of the other accused persons; and the new Penal Code had come into force.", "72. Between 18 June 2005 and 11 April 2006 the Konya Assize Court, to which the case had been referred back by the Court of Cassation after the setting aside of the 21 October 2004 judgment, held eleven hearings. The preparatory report for the 18 June 2005 hearing included the applicants ’ names in the list of third parties to the proceedings.", "73. On 17 August 2005 the Konya Assize Court ordered the joinder of the criminal proceedings against İ .K. with those pending against V.G., C.G. and Z.C.", "74. On 31 January 2006 the Assize Court decided to separate the proceedings against the accused Z.C. and C.G. untile they were arrested.", "75. On 11 April 2006 the Konya Assize Court sentenced V.G. and İ .K. to eighteen years and nine months ’ imprisonment and to a fine of TRY 250 [7]. Mr Çakır, Mrs Yüce (Ergüden), Mrs Akan, Mr Özel and Mr and Mrs Erdoğan were mentioned as third parties to the proceedings. Mr and Mrs Kılıç were mentioned as complainants. In its statement of reasons the Assize Court pointed out that the buildings in Çınarcık had been destroyed by the earthquake, but that it had transpired from the inspections carried out both during the preliminary investigation and during the proceedings that the buildings which had collapsed had been constructed in breach of numerous legal obligations. The Assize Court further emphasised the following : even though the stricken zone was classified as a level- one earthquake hazard area, the buildings had been constructed without any prior soil testing; the construction material used had been low - quality and the concrete had not been solid; the buildings erected had been destroyed under the impact of the earthquake; the accused had acted negligently, which had contributed to the destructive events; and there was a direct causal link between the destruction and the loss of life. The Assize Court further held that the provisions relating to the concurrence of offences were applicable to the case, that each building project implemented in accordance with a building permit had constituted an offence and that the instant case concerned five permits, namely allotment 1927, plot 1, allotment 1649, plot 3, and allotment 1648, plot 7 in Çamlık, and allotment 1258, plot 1 and allotment 1256, plot 5 in Kocadere. It was also noted that no proceedings concerning allotment 1257, plot 1 had been brought before the Assize Court. As regards the lists drawn up by the Governor of Çınarcık District and Kocadere Municipality, the Assize Court explained that eleven persons had lost their lives on allotment 1927, plot 1 (1 st section ), twenty-eight on allotment 1649, plot 3 (2 nd section ), seventy-six on allotment 1648, plot 7 (3 rd section ) and two on allotment 1256, plot 5 (blocks A and B). It pointed out that it had been impossible to establish whether any deaths had occurred on the other plots, but that it had been established that the dwellings on those plots had been inhabited, thus placing the inhabitants in mortal danger. The Assize Court also noted the following : the V.G. Arsa Ofisi company had been responsible for all the buildings constructed on those plots; at the material time V.G. and C.G. had been partners in that company and Z.C. had been involved in obtaining the permits for the buildings; even though permits had been issued for the buildings in question, none of them had been covered by an occupancy permit, such that the building company and the various partners held criminal responsibility for the events.", "76. The accused appealed on points of law.", "77. On 16 April 2006 the Court of Cassation adopted a decision to transmit the case to the public prosecutor with the Court of Cassation so that he could submit his opinion on that appeal. The cover page of the decision bore the inscription “Detainees – statute limitation period expiring soon”.", "78. In a memorial of 5 February 2007 Mr Çakır asked the Court of Cassation to confirm the first-instance conviction, under urgent procedure, on the ground that the offence would shortly be statute-barred.", "79. On 6 February 2007 the Court of Cassation confirmed V.G. ’ s conviction. It also partly upheld İ .K. ’ s conviction, invalidating it as regards İ .K. ’ s responsibility for the destruction that had taken place on allotment 1258, plot no. 1, on the ground that it was unlawful to convict that accused person without having regard to the lack of evidence regarding his status as a technical officer or as a partner in the company responsible for erecting the building in question.", "80. On 20 February 2007 the Konya Assize Court adopted two decisions discontinuing the criminal proceedings against D.B. and C.G. on the grounds that they had become statute-barred. The proceedings against Z.C. were also terminated, on an unknown date, on the same grounds.", "81. On 15 March 2007 the Konya Assize Court, to which the case had been referred, discontinued the criminal proceedings against İ .K. as regards his responsibility for the destruction that had taken place on allotment 1258, plot 1, on the grounds that they had become statute-barred. The applicants ’ names were included as third parties in the decision.", "82. On 8 June 2007 the public prosecutor with the Court of Cassation, examining an appeal lodged by V.G. and İ .K. against the judgment of 6 February 2007, held that that appeal had been lodged unnecessarily.", "C. Criminal proceedings brought against the Mayor and the Head of Technical Services of the Çınarcık Municipality before the earthquake", "83. Previously, on 7 May 1997, the Governor of Yalova had stated that the Mayor and the Head of Technical Services of Çınarcık should be prosecuted under Articles 230 and 240 of the Penal Code for failing in their duties and abusing their authority. The Governor accused them, in particular, of having, between 1995 and 1996, altered the urban planning schemes and turned a blind eye to the erection of illegal buildings, and of having failed to demolish the latter and to impose the relevant fines.", "84. On 18 March 1999 the Council of State, having been applied to by the accused persons, transmitted the case file to the Yalova Criminal Court with a view to prosecuting the offence under Article 240 of the Penal Code.", "85. On 28 February 2001, in the framework of the proceedings thus instigated, the Yalova Criminal Court found the accused guilty as charged. It was satisfied that the Mayor had authorised, under a decision taken by the Municipal Council on 13 October 1995, alterations to the urban planning schemes in a manner contrary to normal procedure – which action falls foul of Article 230 of the Penal Code – but that in view of the nature of the offence and the penalty incurred the imposition of a final penalty should be suspended, pursuant to section 1 [4] Law No. 4616 concerning release on parole and stay of proceedings and penalties for offences committed before 24 April 1999. The Criminal Court considered the 1997 adoption by the Municipal Council of a decision setting aside the aforementioned 13 October 1995 decision before it could be enforced as a mitigating circumstance : it changed the penalties imposed on the Mayor to six months ’ imprisonment, under Article 240/2 of the Penal Code, and a TRL 300, 000 fine. In view of the Mayor ’ s behaviour during the proceedings, those penalties were reduced to five months ’ imprisonment and a fine of TRL 250, 000. The Mayor was also found guilty of having abused his authority by once again altering the planning schemes in breach of procedure, under a Municipal Council decision of 14 February 1996, and he was therefore sentenced to one year ’ s imprisonment pursuant to Article 240 of the Penal Code and fined TRL 300,000, which penalties were then reduced to ten months ’ imprisonment and a fine of TRL 250,000. He was also found guilty of having failed to enforce the fines imposed pursuant to Article 42 of Law No. 3194, as ordered by the Municipal Council on 22 May 1996. Furthermore, he was sentenced to one year ’ s imprisonment and fined TRL 42 0, 000 for having failed to ensure the destruction of the unlawful worksites, which penalties were then reduced to ten months ’ imprisonment and a fine of TRL 35 0, 000.", "The court also found the two accused guilty of having failed to halt the works performed in a manner inconsistent with the corresponding building permits, of having failed to take action to ensure the demolition of the unlawfully erected constructions and of having abused their authority. Each of the accused was consequently sentenced to one year ’ s imprisonment and fined TRL 300, 000, subsequently reduced to ten months ’ imprisonment and a fine of TRL 250, 000.", "In all, the Mayor of Çınarcık was sentenced to thirty- given months ’ imprisonment and fined TRL 1, 100, 000, and the Head of Technical Services was sentenced to ten months ’ imprisonment and fined TRL 250, 000, which penalties were suspended.", "86. On 5 May 2003 the Court of Cassation upheld that judgment.", "D. Administrative proceedings", "1. Action to ensure the prosecution of the officials", "87. On 4 May 2000 the Interior Ministry adopted a decision authorising the instigation of a criminal investigation under Article 230 of the Penal Code against the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and an official working in Technical Services, the last two having admitted that they had at no stage inspected the worksite after the laying of the foundations of the buildings in Çamlık, allotment 1927/15 ‑ 1, plot 1, block E, allotment 1649/15-1, plot 3, blocks C and D, and allotment 1648/15-1, plot 7, blocks A, C, D and E, and the buildings in Kocadere, allotment 1256/3-2, plot 5, block D, allotment 1257/3-2, plot 1, block D and allotment 1258/3-2, plot 1, block D.", "88. On 14 July 2000 Mrs Akan and Mr Özel applied to the Interior Ministry ’ s Inspection Committee for identification of the officials who had failed in their duties of inspection and supervision of the impugned buildings. Relying on the conclusions of the expert report of 13 October 1999 (see paragraph 23 above), they also requested a prosecution order against them. They submitted that their aim was to shed light on the whole chain of responsibilities, emphasising that the Mayor of Çınarcık, the Municipal Council and the technical and administrative staff responsible for inspection and supervision should also be prosecuted and placed on trial pursuant to section 102 of the Local Authorities Act ( Law No. 1580 ). The two applicants considered that the municipality had turned a blind eye to the construction of buildings that fell short of the legal requirements. They also reiterated that the construction area in question had been classified as a “ major earthquake hazard zone ”, and complained that the municipality had authorised excessively high buildings on unstable ground. Finally, it was necessary to establish the responsibility of the Büyükşehir municipality on the ground that the area at issue had been part of that municipality at the time of the construction of the buildings and the submission of the architectural plans.", "89. On 4 October 2000 the Second Division of the Council of State, examining an appeal lodged by the individuals concerned by the authorisation of criminal investigation issued by the Interior Ministry ( see paragraph 87 above ) and acting under Section 9 of Law No. 4483 ( see Relevant domestic law, paragraph 133 below ), lifted the criminal investigation authorisation issued by the Interior Ministry. The Council of State held that responsibility should be attributed to the specialists who had planned the building project, emphasising that many of the buildings destroyed on 17 August 1999 had not been covered by occupancy permits.", "90. On 6 July 2001 the two aforementioned applicants applied to the Directorate General of Local Authorities of the Interior Ministry. On the basis of new evidence they reiterated their application for the prosecution of the officials in question. They submitted that, in the light of the new evidence in question, those officials could not be charged with mere negligence, and that their actions had amounted to abuse of authority.", "91. On 10 September 2001 a review report was drawn up as authorised by the Interior Ministry on 15 August 2001, geared to ascertaining whether the failure to react to and verify the addition of extra storeys to several buildings – those located in Çamlık, allotment 1927/15 ‑ 1, plot 1, block E; allotment 1649/15-1, plot 3, blocks C and D; and allotment 1648/15 ‑ 1, plot 7, blocks A, C, D and E; and in Kocadere, allotment 1257/3 ‑ 2, plot 1, block D – which had been effected in breach of the corresponding building permits, had amounted to a breach of professional duties by the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and a member of the technical services staff. The report concluded that there had been no need to prosecute the actions in question as they had been in conformity with usual procedure; consequently, no proceedings were brought against the aforementioned persons.", "92. On 5 November 2001 Mrs Akan and Mr Özel once again applied to the Directorate of Local Authorities of the Interior Ministry for information on the action taken on their various complaints, pointing out that their requests for the prosecution of the officials had been unsuccessful and that no preliminary inquiry had yet been launched into the facts of which they had complained.", "93. On 25 January 2002 a further review report was prepared as authorised by the Interior Ministry on 2 January 2002. That report found that there had been no need to take action against the officials in question for having authorised six -storey buildings.", "94. On 4 February 2002 the above-mentioned Directorate replied to the application of 5 November 2001 ( see paragraph 92 above ). It first of all reiterated that the decision taken by the Interior Ministry authorising an investigation had been cancelled by decision of the Council of State of 4 October 2000. It went on to explain that in reply, in particular, to the application of 6 July 2001 ( see paragraph 90 above ), a preliminary examination had been conducted as authorised by the Interior Ministry on 15 August 2001, concluding that the issue at stake had already been decided, that the Council of State had cancelled the authorisation of investigation and that there was therefore no need for action against the individuals in question. Finally, it pointed out that, having regard to the applicants ’ new allegations, a further authorisation of examination had been adopted on 2 January 2002 ( see paragraph 93 above ).", "95. On 20 August 2002, relying on section 53 of the Administrative Procedure Act (Law No. 2577 ) and pointing to the existence of new evidence, the applicants applied to the Council of State to set aside the decision of 4 October 2000 ( see paragraph 89 above ) and to reopen proceedings.", "96. On 18 September 2002 the Second Division of the Council of State dismissed that application, without consideration of the merits, on the grounds that no appeal lay from the contested decision, referring in that regard to sections 3 ( h ) and 9 of Law No. 4483 ( see Relevant domestic law, paragraph 133 below ).", "97. On 20 November 2002, the applicants once again applied to the Council of State, submitting that they had not appealed against the decision of 4 October 2000 cancelling the authorisation of a criminal investigation but had applied for the reopening of proceedings pursuant to the Administrative Procedure Act (Law No. 2577 ), which was a different remedy. They reiterated their request to that effect.", "98. On 14 January 2003 the Council of State dismissed that request, having noted that the proceedings in question had been conducted pursuant to Law No. 4483, which did not provide for reopening proceedings.", "99. On 8 April 2004, examining an appeal lodged by Mrs Akan and Mr Özel against the 25 January 2002 report (see paragraph 93 above), the Second Division of the Council of State dismissed that appeal, without considering the merits, on the grounds that it concerned a decision from which no appeal lay.", "2. Application to the Provincial Human Rights Committee", "100. On 25 February 2004 Mrs Akan and Mr Özel applied to the Yalova Provincial Human Rights Committee ( “ the Yalova Committee ” ). They submitted that the transfer of the criminal proceedings from the scene of the earthquake (Yalova) to Konya was in breach of the “ natural judge ” principle and infringed the victims ’ right of appeal. They also complained of shortcomings in the assessment of the applications for the prosecution of the officials involved in the case.", "101. On 6 April 2004 the Yalova Committee noted that the Commission responsible for the investigation and appraisal of human rights violations had prepared a rapport on the impugned facts concluding that there had been compelling reasons for changing the trial venue, as provided for in Article 14 of the Code of Criminal Procedure, and had not breached any human rights. Similarly, according to the findings of the report, the cancellation by the Council of State of the authorisation of investigation against the official whose responsibility had been engaged and the refusal to reopen the proceedings had not been contrary to human rights. Furthermore, the Yalova Committee pointed out that according to the same report, the complainants could have lodged an application with the European Court of Human Rights.", "102. The Yalova Committee also noted that a member of the Commission responsible for the investigation and appraisal of human rights violations had set out the following additional observations :", "“ 1. The increase in the number of storeys without the authorisation of the Municipal Council and the amendments to the architectural plans, as well as the failure to comply with the architectural plans concerning the ‘ high- risk ’ nature of the zone, amount to an infringement of the right to life;", "2. The transfer, on security grounds, of the case to Konya rather than to a province closer to Yalova violated the victims ’ right to a judge and their right of appeal. The Ministry of Justice has to provide financial assistance to the complainants so that they can follow the proceedings ...", "3. The following constitute human rights violations: the inability, following the cancellation by the Council of State of the authorisation of investigation under Law No. 4483, to secure, [ on the basis of ] the new evidence submitted, the re-examination of the impugned facts [ and ] and the reopening of the proceedings ... [ The same applies to ] the lack of a right of appeal for the complainants following the cancellation of the authorisation of prosecution of the officials .”", "103. On 29 April 2004 the Office of the Governor of Yalova wrote to counsel for the applicants to inform her of that decision, transmitting a copy thereof.", "3. Compensation proceedings", "a) Actions for damages", "104. On an unknown date Mrs Akan and Mr Özel had lodged with the Bursa Administrative Court an action for damages against the Interior Ministry, the Mayor of Çınarcık, the Housing Ministry and the Mayor of Büyükşehir (Istanbul), seeking compensation for the pecuniary and non ‑ pecuniary damage which they had sustained. They had submitted that the administrative authorities charged in the proceedings had authorised building in major earthquake hazard zones, failing to use appropriate construction techniques, and that they had issued building and occupancy permits without adequate controls, thus committing a breach of their administrative duty.", "105. On 30 October 2000 the Bursa Administrative Court dismissed that action as having been brought out of time, stating that the applicants should have brought their action within sixty days from the preparation of the expert report of 13 October 1999 ( see paragraph 23 above ), when they had been apprised of the alleged defects.", "106. On 4 March 2003 the Bursa Regional Administrative Court dismissed an appeal against the latter decision and upheld the first-instance decision.", "b) Claim for the reimbursement of costs and expenses", "107. On 2 August 2004 Mr Çakır submitted a claim to the Ministry of Justice for the reimbursement and defrayal of his travel expenses to and from Konya in order to follow and take part in the criminal proceedings.", "108. On 31 August 2004 the Ministry of Justice rejected that claim.", "109. On 16 May 2006 the Ankara Administrative Court, to which the applicant had appealed against that decision, held that the decision to transfer the Yalova case to Konya had been a judicial rather than an administrative decision and that it accordingly could not engage the responsibility of the administrative authorities.", "E. Civil proceedings against the property developers", "1. The civil proceedings brought by Mrs Akan and Mr Özel", "110. On 27 September 1999 Mrs Akan and Mr Özel had lodged with the Yalova Regional Court (“ YRC ” ) an action for damages against the V.G. partnership, V.G. himself, İ .K., Z.C. and the Çınarcık municipality.", "111. During the hearings held between 29 September 2004 and 17 September 2007, the YRC ordered the adjournment of the case until the conclusion of the criminal proceedings which were pending before the Konya Assize Court at the time.", "112. On 17 September 2007 the YRC observed that the Konya Assize Court had convicted V.G. and İ.K. of five offences, one of which related to the collapse of three blocks on allotment 1256, and that that conviction had become final, having been adopted in the light of an expert report prepared by Istanbul Technical University on 12 October 2000 establishing the accused ’ s responsibility. That expert report had been added to the case file, and the YRC commissioned a further expert report in order to establish the pecuniary damage sustained by the complainants as a result of the loss of their apartment.", "113. On 19 November 2007 an expert estimated the pecuniary damage sustained at TRY 5, 015.", "114. At the hearing on 14 January 2008 the complainants contested the conclusions of that expert opinion.", "115. On 2 December 2008 the YRC, sitting as a consumer court, rejected the claims for compensation brought against V.G. and the Mayor of Çınarcık respectively on grounds of absence of evidence and lack of jurisdiction. It further held that the complainants ’ claim for the moveable property lost should be considered as having been abandoned during the course of proceedings. Finally, the YRC partly acceded to the request for compensation by ordering the V.G. and Z.C. partnership to pay the applicants TRY 2, 091. 43 jointly in respect of pecuniary damage and TRY 2, 000 each in respect of non-pecuniary damage.", "116. On 13 March 2009 Mrs Akan and Mr Özel appealed against that judgment on points of law. In their memorial before the Court of Cassation they submitted that V.G. ’ s responsibility had been established by the Konya Assize Court and that, while civil courts were not bound by the conclusions of criminal courts, that did not apply to cases where the facts had established beyond doubt. They complained that the YRC had decided the case as a consumer court, even though it had involved a purely civil action. Finally, they submitted that the amounts awarded in compensation had been unsatisfactory, so that the YRC ’ s decision had been incompatible with Articles 2 and 13 of the Convention and had, moreover, infringed their property rights.", "117. On 28 February 2010 the Court of Cassation set aside the YRC ’ s judgment.", "118. On 28 June 2010 an expert report was drawn up, estimating the pecuniary damage sustained by the applicants, on the basis of the value of the apartment that had been destroyed during the earthquake, at TRY 2.750.", "119. On 23 November 2010, the YRC, to which the case had been referred back by the Court of Cassation, again rejected the compensation claim against V.G. for lack of evidence, holding that the latter had been involved in neither the construction nor the sale of the building in question. The YRC also dismissed the compensation claim against the municipality, declining jurisdiction in favour of the administrative courts. It noted that the claim against İ.K. had been abandoned. Drawing on Article 409 of the Code of Civil Procedure, the YRC considered that the claim relating to moveable property should be deemed not to have been lodged. Lastly, it ordered the V.G. and Z.C. partnership to pay, jointly and severally, TRY 3, 600 in respect of the pecuniary damage sustained, and a sum of TRY 2, 000 to each claimant in respect of non- pecuniary damage.", "120. On 15 November 2011 the Court of Cassation upheld that judgment.", "2. Civil proceedings brought by Mr Çakır", "121. On 11 November 1999 Mr Çakır and his wife had brought before the YRC an action for damages against the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm, the V.G. Arsa Ofisi partnership, V.G. and İ.K. They claimed TRL 15,000 each in respect of pecuniary damage, TRL 500,000 in respect of non-pecuniary damage and a further sum to be calculated in compensation for loss of support.", "122. On 29 December 2008 the YRC stated that it was satisfied that the property developer responsible for the building in the ruins of which the applicant ’ s son had died was the V.G. Arsa Ofisi partnership and that the architectural blueprint had been prepared by İ.K., who had also acted as scientific officer for the project. Furthermore, in the light of the expert report prepared on 12 October 2000 at the request of the Konya Assize Court, the public authorities which had issued the permit had been responsible in a ratio of 2/8 and the persons in charge of construction had been responsible in a ratio of 6/8. The YRC considered that the V.G. Arsa Ofisi partnership and İ.K. had therefore been responsible in a ratio of 6/8.", "The YRC dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It allowed in part the applicant ’ s and his wife ’ s compensation claims. The V.G. Arsa Ofisi partnership was accordingly ordered to pay the applicant TRY 1, 170 in respect of the moveable property which they had lost, TRY 5, 317. 40 in respect of loss of financial support and TRY 4, 500 in respect of non ‑ pecuniary damage.", "123. On 18 November 2009 the Court of Cassation set aside that judgment on the ground that the court which had jurisdiction to hear and determine the case had been the Consumer Court.", "124. By judgment of 1 April 2010, the YRC, to which the case had been referred back, sitting as a consumer court, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It also dismissed the claim against İ.K. on the ground that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1, 014 in respect of the moveable property which he had lost, TRY 4, 607. 85 in respect of loss of financial support and TRY 4, 500 in respect of non- pecuniary damage.", "125. On 9 March 2011 the Court of Cassation set aside that judgment.", "126. On 13 November 2011 the Court of Cassation dismissed an application for rectification of its judgment.", "127. On 29 December 2011 the YRC, to which the case had been referred back, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the ground that they could not have been involved in the proceedings. It likewise dismissed the claim against İ.K. owing to the fact that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1,560 in respect of the moveable property which he had lost, TRY 7,089 in respect of loss of financial support and TRY 4,500 in respect of non-pecuniary damage.", "3. Civil proceedings brought by Mrs Yüce (Ergüden)", "128. On 16 February 2000 Mrs Yüce (Ergüden) and three members of her family had brought compensation proceedings before the YRC in respect of the damage suffered owing to the deaths of their parents, claiming TRL 1 ,000,000,000 in respect of non-pecuniary damage and TRL 9 ,000,000,000 in respect of pecuniary damage. The action for damages was directed against the V.G. Arsa Ofisi partnership.", "129. On 26 December 2007 the YRC, hearing and determining as a consumer court, allowed in part the claim concerning the pecuniary damage suffered, awarding a sum of TRY 3,092. 93 to be shared among the different complainants, in accordance with their respective places in their parents ’ succession. The YRC also awarded a sum of TRY 1, 000 in respect of the non-pecuniary damage caused by the death of the claimants ’ mother and TRY 1, 000 in respect of the non-pecuniary damage caused by their father ’ s death.", "130. On 28 March 2008 the respondent party appealed on points of law.", "131. On 20 November 2008 the Court of Cassation dismissed that appeal under a judgment which became final on 27 January 2009." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "132. Pursuant to section 14 of the Criminal Proceedings Act (Law No. 1412) of 4 April 1929, which was in force at the material time [8], competent judges or courts which, for legal or material reasons, were unable to exercise their territorial jurisdiction or considered that continuation of proceedings under its jurisdiction might be dangerous in terms of guaranteeing the prosecution of the case, could decide to transfer the case to another court of the same level. It was incumbent on the Ministry of Justice to request the transfer of the case for reasons of guaranteeing its prosecution.", "133. The Prosecution of Officials and other Civil Servants Act ‘ Law No. 4483 ), enacted on 2 December 1999, states that officials may only be tried for acts committed during the exercise of their duties with the authorisation of the relevant administrative authority. An appeal lies with decisions to grant or refuse authorisations of investigation.", "Section 3 ( h) of that Act lays down that the Minister of the Interior is responsible for initiating an investigation against Mayors of cities and towns and members of their municipal councils and the Provincial Council.", "Section 9 of the same Act provides that the Second Division of the Council of State is responsible for examining, in particular, appeals lodged against decisions taken under section 3 ( h) of the Act, and that decisions taken at appeal level are final.", "134. Section 32 of the Urban Planning Act (Law No. 3194 ) of 3 May 1985, published in the Official Gazette on 9 May 1985, which was in force at the material time provided as follows :", "“ Buildings constructed without permits or contrary to the permit and the appendices thereto", "Section 32. Pursuant to the provisions of this Act, where, except in the case of buildings which can be erected without a permit, ... it is noted that a building has been commenced without a permit or has been constructed contrary to the permit and the appendices thereto, the state of the construction must be assessed ... by the municipality or by the Office of the Governor. [ Seals must be affixed to the ] building and the works [ must be ] immediately halted. The stoppage of works shall be deemed notified to the owner of the building by the posting of the official record of the stoppage decision on the building site. A copy of that notification must be submitted to the muhtar. As of the date of notification, and within a month at the latest, the building owner shall apply to the municipality or to the Office of the Governor for the lifting of the seals, having either obtained a permit or brought his building into line with the existing permit. In the case of a building constructed contrary to the permit issued, where it is noted, after inspection, that that non-compliance has been [corrected ] or that a permit has been obtained and the construction complies with that permit, the seals shall be lifted by the municipality or by the Office of the Governor and building works shall be allowed to continue. ”", "Section 42 of that Act laid down the administrative penalties applicable to buildings constructed contrary to the provisions of the Act.", "135. Law No. 7269 of 15 May 1959 on preventive and relief measures to be adopted regarding the effects of disasters on the life of the population, published in the Official Gazette on 25 May 1959, sets out the preventive and relief measures to be adopted in deal with natural disasters.", "136. The adopted on 2 September 1997 and amended on 2 July 1998 set out, in particular, the technical criteria for buildings constructed in disaster areas.", "On 6 March 2007 new Regulations on buildings to be erected in disaster areas were published in the Official Gazette.", "137. On 27 August 1999 the Grand National Assembly of Turkey decided to set up a Commission of Inquiry to consider all the measures taken before, during and after the earthquake. On 23 December 1999 that Commission presented its report, the relevant sections of which read as follows :", "“ VI. Appraisal :", "...", "It was noted that despite the setting up of crisis units, which began operations after the earthquake, the relief and assistance committees and the civil defence officers had not been properly organised and that there had been operational delays.", "After the 17 August earthquake our company noted that the provision of assistance had become chaotic because of poor preparation and deficient organisation. Whereas it is for the public authorities to take action in situations of disaster liable to affect the lives of the population, those authorities were basically overwhelmed. The reasons for their powerlessness was, no doubt, the size of the area hit by the earthquake, the breakdown in communications, the power cuts and the inaccessibility of infrastructures.", "That being the case, there were delays in practice because the officials responsible for these provinces classified as major earthquake hazard areas had no plans setting out the measures to be taken in the event of this type of disaster or describing the roles and responsibilities of each part in the event of an earthquake, or else because they had never envisaged an earthquake ever happening. However, in view of the critical situation in the region and the risk of a worst-case scenario they ought to have been prepared [ been ] in a position to take effective action ... Although the officials leading the crisis units carried out their work determinedly and unstintingly, it was nonetheless noted that they were not prepared for a natural disaster, had no emergency action plans or programmes, and that even where they had such plans and/or programmes, they had been unable to implement them owing to the appalling impact of the disaster.", "...", "Another authority [ which ] had failed to take effective and adequate action during the relief operations was the Civil Defence Department ... The very small number of civil defence relief teams ... totalling approximately 110 persons literally vanished amidst the 13, 600 buildings which collapsed on 17 August. That meant that very many persons who could have been dug out of the rubble remained there and died. If there had been civil relief available during the rescue operations to direct and supervise the untrained, unexperienced volunteers, it is certain that [ more of ] our fellow- citizens would still be alive today.", "The municipalities are responsible for regulating urban development in the provinces and districts. It has been noted that these major responsibilities devolved to the municipalities under the decentralisation process have been used ... to political ends... The local leaders and municipalities have abused the legal rights conferred upon them and turned their towns and cities into concrete jungles.", "... ”", "THE LAW", "138. Having regard to the similarity of the applications in terms of the facts and the complaints, the Court decides to join them.", "I. THE PURPOSE OF THE APPLICATIONS AND THE APPLICANT PARTIES", "A. The purpose of the applications", "139. The Court notes that in their application forms that applicants submit that the criminal proceedings before the Konya Assize Court were the largest to be brought in the wake of the earthquake, in particular in terms of the number of victims concerned by the proceedings. The applicants submitted that the proceedings, which related to a serious infringement of the right to life, raised the issues not only of major negligence on the part of the property developer and his partners, but also of major negligence on the part of the authorities, but that despite all their efforts not all those responsible had been prosecuted. They further stated that the area where the earthquake had occurred had, many years previously, been declared a disaster zone, which meant that any buildings constructed there were subject to special regulations. Flouting those regulations and the requirements of the urban development and architectural plans, municipal the authorities had issued permits for buildings of five storeys and more, which were then erected illegally. Whereas those building should have been constructed in conformity with the specific features of the zone ( closely -spaced iron brackets and two storeys underground ), that had not been the case in the buildings in which the applicants ’ relatives had lost their lives. Moreover, they complained that the municipal authorities had failed to conduct the requisite inspections to check the conformity of the buildings with the relevant standards or to prevent their construction, and considered that those shortcomings amounted to gross negligence which had contributed to causing the deaths of their relatives.", "140. The applicants also complained of serious negligence on the part of the authorities owing to shortcomings in the organisation of rescue operations after the earthquake and the fact that the Office of the Governor had failed to draw up a “ disaster plan ”. In particular, the search and rescue operations for people trapped in the rubble had not commenced until several hours after the disaster, as it had proved impossible to draw up lists des of the dead and injured and to transport the injured persons to hospital. The applicants considered that the fact that the authorities had not been prepared for coping with natural disasters had increased the death count.", "141. Furthermore, relying on Article 2 of the Convention, the applicants submitted that the deaths of their relatives during the earthquake of 17 August 1999 amounted to a violation of the right to life. While acknowledging that the earthquake had been a natural disaster, they complained that they had been unable to secure the prosecution of all the individuals whom they held responsible. They alleged that the fact of amending the urban development plans without considering the location of the building sites within a natural disaster zone had infringed their relatives ’ right to life.", "142. Drawing on Article 6 of the Convention, the applicants also complained of unfairness in the criminal proceedings, and in particular of an infringement of the “natural judge” principle owing to the transfer of the proceedings from Yalova to Konya – a ten-hour drive away, according to the applicants – and the difficulties which that transfer caused them in following the proceedings. In that regard they complained of an infringement of their right of judicial appeal. They also complained of the excessive length of the criminal proceedings.", "143. Relying on Article 13 of the Convention, the applicants further complained of their inability to obtain the prosecution of the officials involved despite the fact that the latter ’ s responsibility had been established by expert opinion. They also complained that they had not benefited from an effective remedy enabling them to secure compensation for the damage sustained before both the administrative and the civil courts.", "144. Lastly, the applicants relied on Article 1 of Protocol No. 1 to complain of the loss of their housing and that of their deceased relatives.", "145. The Court reiterates that it is master of the characterisation to be given in law to the facts of a case and is not bound by the approach taken by the parties to the case. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on ( see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). In the present case the Court considers that regard should be had to all the facts complained of by the applicants in terms of the infringement of their relatives ’ right to life, under the substantive head of Article 2 of the Convention. It further holds that the facts complained of by the applicants under Articles 6 and 13 of the Convention as regards the course of the criminal proceedings and of their inability to secure the prosecution of the officials should also be examined under the procedural head of Article 2 of the Convention.", "As regards the applicants ’ complaints of the lack of fairness in the proceedings, the lack of an effective remedy enabling them to secure compensation for the violation of their property rights, they should be examined under the articles called in aid, that is to say Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, respectively.", "B. The applicants in the present case", "146. The Court notes that in Mrs Akan ’ s observations submitted after communication of the case to the Government, her lawyer mentioned that the latter was acting on her own and on her daughter ’ s behalf, without giving further details.", "147. The Court observes that Mrs Akan ’ s application form did not mention her daughter ’ s applicant status. Therefore, having regard to the wording of the application and to the manner in which and the stage when that fact was brought to its attention, the Court holds that Mrs Akan must be considered as having lodged her application solely on her own behalf.", "II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS", "A. The submissions of the parties", "1. The Government ’ s submissions", "148. The Government submitted first of all that the applicants had failed to exhaust the available domestic remedies, given that they had neither raised in substance the complaints which they put forward in their applications nor adduced a violation of the Convention.", "149. Furthermore, the Government submitted, under Article 125 of the Constitution, that the applicants had had the possibility of engaging the authorities ’ objective responsibility based on the theory of social risk – under which remedy, according to the Government, they could have obtained compensation.", "The applicants could also have brought compensation proceedings against other private individuals and authorities such as the builder of the buildings in question or the engineer responsible for their construction, which they had refrained from doing.", "150. Finally, in support of their submissions on the merits of the complaints under Article 13, the Government argued that the persons responsible for the construction of the buildings which had collapsed had been convicted. They submitted that under Article 34 of the Convention, if an individual had received redress for his complaint, he could no longer claim to be a victim of a violation of the Convention. Even though the applicants had not secured the decisions they had expected, it should be considered that they had been afforded redress for their complaint.", "2. The applicants ’ submissions", "151. The applicants refuted the Government ’ s submissions.", "Mr and Mrs Kılıç, Mr and Mrs Erdoğan and Mrs Yüce (Ergüden) submitted that they had exhausted the domestic remedies. Furthermore, although some of the third parties to the criminal proceedings had brought actions against the officials in question before the administrative courts, the latter had dismissed their compensation claims on grounds which were not prescribed by law. Similarly, the actions for damages brought by some complainants before the civil courts had continued for many years without a successful conclusion. In that regard, the aforementioned applicants submitted that the YRC premises had been damaged during the earthquake, that it had been moved several times and that the judges responsible for the case had also been changed several times, with the result that the actions brought by several victims were still ongoing. The applicants had given up any hope of obtaining any kind of compensation by that means. They submitted that in view of the decisions given and the time that had since elapsed the compensation proceedings relating to the earthquake were no longer effective.", "152. In response to a request from the Court to parties for further information, counsel for Mr and Mrs Erdoğan and Mr and Mrs Kılıç had informed the Court that owing to the ineffectiveness of the civil action for damages and the cost of the proceedings, his clients had decided to discontinue that remedy. He submitted that in any case there were no effective remedies as regards compensation.", "153. Mr Çakır, Mr Özel and Mrs Akan refuted the Government ’ s submissions as regards the existence of an effective compensation remedy. At the time of submission of their observations they had argued that the compensation proceedings had been going on for eleven years, that it was accordingly impossible to secure an effective result and that the amount which would have been awarded would in any case have been unsatisfactory. They also submitted that when the case had been pending before the Court of Cassation, the first- instance court had held that V.G. had not been required under criminal law to compensate the complainants. They added that even if they had been awarded any amount in compensation the impugned company had not had the wherewithal to pay it, such that there was no effective remedy enabling them to obtain compensation. Citing the cases of Mahmut Aslan v. Turkey (no. 74507/01, 2 October 2007) and Ali Kemal Uğur and Others v. Turkey (no. 8782/02, 3 March 2009 ), they complained of the lack of effective remedies enabling them to complain of the length of proceedings.", "154. Mr Özel and Mrs Akan further submitted, as regards the administrative compensation proceedings, that in the instant case the administrative courts had applied the deadline for administrative decisions rather than the deadline set out in Article 13 of the Code of Administrative Procedure. They pointed out that those courts had not applied the one-year deadline – which they claimed was contrary to domestic case-law – which was why their claim had been rejected. The applicants considered that that rejection was contrary to domestic law and jurisprudence, and, moreover, had been geared to protecting the administrative authorities.", "B. The Court ’ s assessment", "155. As a preliminary note, the Court considers it useful to emphasise that although the Government ’ s submissions as to the non- exhaustion of domestic remedies broadly related to the application as a whole, they specifically concern Article 2 of the Convention and should therefore be examined under that provision.", "156. Similarly, having regard to the legal classification of the facts in the present case ( see paragraph 145 above ), the Court considers that the Government ’ s submissions to the effect that redress was afforded for the applicants ’ complaint under Article 13 of the Convention ( see paragraph 150 above ) come under the procedural head of Article 2 of the Convention and should be dealt with before the examination of the merits of the case.", "1. The applicants ’ victim status", "157. The Court reiterates that a decision or measure favourable to the applicant does not in principle deprive the individual concerned of his status as a victim for the purposes of Article 34 of the Convention, unless the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress ( see, for example, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-180, ECHR 2006 ‑ V; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 259, ECHR 2012 [ extracts ] ). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application ( see Eckle, cited above, §§ 69 et seq. ).", "158. In the instant case the Government relied on the criminal conviction of the developers responsible for the buildings which collapsed to argue that a remedy had been provided for the applicants ’ complaint. However, having regard to the nature of the procedural requirements of Article 2 and the fact that the developers ’ conviction cannot be construed as providing any kind of compensation, the Court rejects the Government ’ s submission in this regard.", "2. Exhaustion of domestic remedies", "159. The Court reiterates that the obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ( see Vučković and Others v. Serbia [GC], no. 17153/11, § 71, 25 March 2014 ). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success ( ibid. , § 74). However, there is no obligation to have recourse to remedies which are inadequate or ineffective. Nevertheless, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress ( ibid. , §§ 73 ‑ 74).", "160. Nonetheless, the Court has frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism ( see Ringeisen v. Austria, 16 July, § 89, Series A no. 13, and Vučković and Others, cited above, § 76). It has, moreover, accepted that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether the rule has been observed, it is essential to have regard to the particular circumstances of the individual case ( see Kurić and Others, cited above, § 286).", "161. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000 ‑ VII).", "162. Furthermore, where an applicant has a choice between different possible remedies whose comparative effectiveness is not immediately obvious, the Court tends to construe the requirement to exhaust domestic remedies in the applicant ’ s favour ( see Manoussakis and Others v. Greece, 26 September 1996, § 33, Reports 1996 ‑ IV, and Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III).", "163. As regards the burden of proof, it is incumbent on the Government pleading non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was indeed exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement ( see Vučković and Others, cited above, § 77).", "164. In the instant case, in the first part of the preliminary objection raised by the Government, as regards, firstly, the applicants ’ complaint about the dilatoriness and inefficiency of the rescue operations immediately after the earthquake ( see paragraph 140 above ), the Court notes from the evidence available to it that the applicants did not specifically contact the national authorities to criticise and complain about the alleged shortcomings in the organisation and implementation of the emergency relief. Consequently, that complaint must be dismissed for non- exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.", "165. Secondly, as regards the other complaints under Article 2 of the Convention, the Court notes from the case file that the applicants raised the complaints which were subsequently submitted to it on several occasions during various sets of proceedings before the domestic criminal, civil and administrative courts ( for details of the proceedings in question, see paragraphs 24-82, 88-99 and 104 ‑ 131). As regards their alleged failure to rely specifically on provisions of the Convention, the Court notes that the different types of proceedings brought and the memorials submitted to the domestic courts covered the very substance of the rights relied upon in the proceedings before it. Accordingly, it considers it should reject the Government ’ s objection to the effect that the applicants had failed to submit even the substance of their complaints to the domestic courts.", "166. As to the second section of the Government ’ s objection that the applicants should have engaged the objective responsibility of the authorities before the domestic courts, the Court reiterates that it has previously found that under Article 125 of the Constitution, objective responsibility is engaged when it has been established that, in the specific circumstances of a given case, the State has failed in its obligation to preserve public order and security and/or to protect people ’ s lives and property, without the need to establish the existence of criminal negligence attributable to the public authorities (see, among other authorities, Kavak v. Turkey, no. 53489/99, § 32, 6 July 2006). The Court further emphasises that no compensation could be awarded under the remedy in question. The Court reiterates that where one remedy has been used, it is not necessary to exercise another remedy with virtually the same aim ( see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 84, 24 January 2008). In the present case it notes from the case file and other information available to it that Mrs Akan and Mr Özel attempted to bring an action for damages before the administrative courts ( see paragraphs 104-106). Furthermore, they applied to the civil courts for compensation for the pecuniary and non ‑ pecuniary damage resulting from their relative ’ s death ( see paragraphs 110 ‑ 120). The Court notes that Mrs Yüce (Ergüden) and Mr Çakır also brought an action for damages ( see paragraphs 121 ‑ 131 above ). Therefore, it holds that those applicants cannot be criticised for not having also brought an action against the State before the administrative courts, which action could only have led to the award of damages.", "167. As regards the other applicants, the Court reiterates that it is for the Government raising the non-exhaustion objection to convince the Court that the remedy was effective and available both in theory and in practice at the material time. It also reiterates that it must apply that rule with due regard to the context and also the applicant ’ s personal situation, and examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies ( see Salman v. Turkey [GC], no. 21986/93, § 86, ECHR 2000 ‑ VII). In that respect, the insecurity and vulnerability of an applicant ’ s position should also be borne in mind ( see Menteş and Others v. Turkey, 28 November 1997, § 59 in fine, Reports 1997 ‑ VIII). In the present case, given the extent of the disaster which had given rise to the complaints and its tragic consequences for the applicants, the particular vulnerability in which they found themselves after the earthquake, and the fact that during the criminal proceedings they lodged memorials claiming civil damages in the framework of the latter ( see paragraphs 34, 38 and 63 above ), bringing the matter of the State ’ s responsibility to the attention of the authorities did not depend solely on the applicants ’ diligence ( see, mutatis mutandis, Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 112, ECHR 2008 [ extracts ] ).", "Furthermore, the Court can but note that the Government failed to submit any examples of cases where that remedy had been successfully used in a comparable situation. In view of the foregoing observations, it must also reject that section of the Government ’ s objection.", "168. Lastly, as regards the final part of the Government ’ s objection to the effect that the applicants had failed to bring any civil action for damages against specified persons, the Court reiterates, as noted previously ( see paragraph 166 above ), that Mrs Akan, Mrs Yüce (Ergüden), Mr Özel and Mr Çakır applied to the civil courts for compensation for the pecuniary and non-pecuniary damage resulting from the deaths of their relatives. As regards the other applicants, that is to say Mr and Mrs Erdoğan and Mr and Mrs Kılıç, the Court observes that they submitted that they had waived recourse to that remedy owing to its ineffectiveness – relating to the length of the relevant proceedings – and high cost. Having regard to the circumstances of the case and the parties ’ s submissions, the Court considers that this section of the objection raises issues intimately linked to the merits of the complaints raised by by the applicants. It therefore decides to join it to the merits ( see paragraph 199 below ).", "III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "169. The applicants alleged a violation of Article 2 of the Convention, which provides:", "“ 1. Everyone ’ s right to life shall be protected by law ... ”", "A. As regards the applicability of Article 2 of the Convention", "170. The Court reiterates that Article 2 of the Convention requires the State not only to refrain from intentionally causing deaths but also to take appropriate steps to safeguard the lives of those within their jurisdiction. That obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, but it also applies where the right to life is threatened by a natural disaster ( see Budayeva and Others, cited above, §§ 128-130).", "171. In that respect, the Court pointed out, in connection with natural hazards, that the scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation, and clearly affirmed that those obligations applied in so far as the circumstances of a particular case pointed to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use (ibid. , § 137). Therefore, the applicability of Article 2 of the Convention and the State ’ s responsibility have been recognised in cases of natural disasters causing major loss of life. In the instant case, the applicants ’ complaints must be assessed under the substantive and procedural heads of Article 2 of the Convention.", "172. The Court holds that the applicants ’ complaints require it to adjudicate first of all on the obligation to prevent disasters and protect populations from the effects of such events. The Court will then examine the applicants ’ allegation that not all the persons involved in the construction of the buildings in question had been prosecuted, and their complaint regarding the conduct of the criminal proceedings.", "B. Admissibility", "1. Prevention of disasters and protection of the population from the effects of disasters", "173. The Court observes that earthquakes are events over which States have no control, the prevention of which can only involve adopting measures geared to reducing their effects in order to keep their catastrophic impact to a minimum. In that respect, therefore, the prevention obligation comes down to adopting measures to reinforce the State ’ s capacity to deal with the unexpected and violent nature of such natural phenomena as earthquakes.", "174. In that context, the Court considers that prevention includes appropriate spatial planning and controlled urban development. In the present case it notes from the case file that the national authorities were perfectly well aware of the earthquake risk in the affected region. The spatial planning documents for the regions therefore included the relevant information and the earthquake-hit area had been classified as a “ disaster zone ”. Furthermore, building permits in that area had been subject to special conditions, and consequently all buildings erected had to comply with specific building standards. The local authorities responsible for regulating land use by issuing building permits therefore had a frontline role in risk prevention and bore the primary responsibility for it.", "175. Under the circumstances of the instant case, the Court observes that the earthquake had disastrous consequences in terms of loss of life owing to the collapse of buildings erected in breach of the safety and construction standards applicable to the area in question. It would seem to be established, in the light of the findings of the proceedings before the domestic authorities responsible for investigating the matter, that the local authorities which should have supervised and inspected those buildings had failed in their obligations to do so.", "176. The Court notes that before the earthquake the Mayor of Çınarcık and the municipal Director of Technical Services had been prosecuted for having amended the urban planning schemes in breach of the requisite procedures and that they had been convicted of the corresponding offences ( see paragraphs 83-86 above ). Moreover, the responsibility of the public authorities for the collapse of the buildings in the earthquake zone had been acknowledged in various expert reports and by a Parliamentary Commission ( see paragraphs 45 and 137 above ). Yet the Interior Ministry decision to authorise an investigation of the public officials involved was set aside under a final decision of the Council of State on 4 October 2000. That fact was noted in the minutes of the hearing organised by the Assize Court on 11 April 2002, on which date it may be held that all the applicants could have been aware of it ( see paragraph 55 above ).", "Furthermore, the application submitted by Mrs Akan and Mr Özel to set aside the Council of State decision of 4 October 2000 and reopen the proceedings against the public officials involved was dismissed by the Council of State on 14 January 2003 ( see paragraph 96 above ).", "177. Even supposing that that remedy might be taken into account under the procedural requirements of Article 2 of the Convention, it should be noted that the applications were lodged on 16, 22 and 25 April 2005, that is to say more than six months after the 4 October 2000 decision, more than six months after the Assize Court hearing of 11 April 2002, and more than six months, even, after the decision of 14 January 2003. Moreover, Mrs Akan and Mr Özel had clearly been informed of the possibility of applying to the Court in the 6 April 2004 decision of the Provincial Human Rights Committee, which they nonetheless also refrained from doing until 16 April 2005.", "178. Although in its observations the Government did not submit any objection as to inadmissibility owing to non- compliance with the six - month time-limit, the Court reiterates that it has previously found that the six ‑ month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion ( see Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012), even if the Government has not objected on that basis ( see Paçacı and Others v. Turkey, no. 3064/07, § 71, 8 November 2011). Accordingly, having regard to the aforementioned findings concerning the date on which the six- month time-limit began in respect of Mrs Akan and Mr Özel ( see paragraph 176 above, in fine ) and concerning the date on which the other applicants could be deemed to have been informed of the setting aside of the authorisation to investigate the public officials ( see paragraph 176 above ), the Court considers that that part of the complaint was submitted out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.", "2. The conduct of the criminal proceedings", "179. Noting that this part of the application is not manifestly ill- founded within the meaning of Article 35 § 3 ( a) of the Convention and that it is not inadmissible on any other ground, the Court declares it admissible.", "C. Merits", "180. Having regard to the findings set out above concerning the applicants ’ complaints vis-à-vis the obligation to prevent disasters, to protect populations from the effects of disasters and to provide immediate relief and implement emergency measures ( see paragraphs 164 and 178 above ), the Court must now adjudicate exclusively on the applicants ’ allegations regarding the conduct of the criminal proceedings, which come under the procedural head of Article 2 of the Convention.", "1. The applicants ’ submissions", "a) Mr Çakır, Mr Özel and Mrs Akan ’ s submissions", "181. The applicants submitted that the criminal proceedings conducted in the present case had not led to the conviction of all the persons whom they considered responsible in accordance with their respective responsibilities : they argued that the criminal justice system had been inoperative owing both to the inadequacy of legislation on natural disasters and to the implementation of the provisions on statutory limitation. Furthermore, contrary to the Government ’ s assertions, not all those persons had been prosecuted and convicted. In that connection, the applicants submitted that despite the existence of an arrest warrant against D.B. and the passing of many years since the material time, the latter had not been arrested and had not taken part in proceedings. They added that the same applied to C.G. and Z.C. Moreover, of the five persons prosecuted during the criminal proceedings four had benefited from a stay of prosecution, including a partial stay as regards İ.K. on the grounds of statutory limitation.", "182. The applicants further submitted that the State ought to have punished the public officials responsible for the deaths of their relatives, explaining that the expert opinions had established the respective responsibilities but that the prosecutions had still not been authorised.", "b) Mr and Mrs Kılıç ’ s, Mr and Mrs Erdoğan ’ s and Mrs Yüce ’ s (Ergüden ’ s ) submissions", "183. The applicants submitted that the State had failed in its duty to arrest and try in good time the individuals whom they considered responsible, enabling the latter to benefit from the provisions on statutory limitation.", "184. Furthermore, the applicants considered that the failure to prosecute the public officials whose responsibility had been established under an expert opinion had infringed the right to an effective remedy. In that context they complained that the current legislation was such as to render impossible the prosecution of certain public officials, even though their responsibility had been established by experts.", "2. The Government ’ s submissions", "185. Citing the principles set out in the case of Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 91-92, ECHR 2004 ‑ XII) regarding the requisite judicial responses to allegations of violations of the right to life, the Government stated that in the present case the domestic authorities had conducted an in-depth investigation. Expert studies had been conducted and reports had been prepared, on which the parties had been able to submit their observations. Furthermore, the domestic courts had examined the requests to claim civil damages under the proceedings and assessed whether or not those civil claimants had actually been involved in the case. Finally, the courts had gathered and scrutinised the requisite evidence.", "186. The Government considered that the present case was characterised by the promptness with which the authorities had instigated the investigation, to which fact they attached great importance. They pointed out that the record of the inspection of the site had been prepared on 24 and 25 August 1999, that V.G. had been heard on 6 September 1999 and that the indictment and the additional indictment had been drawn up on 16 September 1999 and 22 September 2000 respectively. They further submitted that no delay in the conduct of the criminal proceedings could be laid at the door of the domestic authorities and that the transfer of the case to Konya had not impeded the applicants ’ participation in the proceedings.", "They therefore submitted that there had been no violation of Article 2 of the Convention.", "3. The Court ’ s assessment", "a) General principles", "187. The Court reiterates that it should in no way be inferred that Article 2 of the Convention may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence ( see Öneryıldız, cited above, § 96) or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence. On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence in and ensuring public adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts ( see Nencheva and Others v. Bulgaria, no. 48609/06, § 116, 18 June 2013).", "188. The Court further emphasises that Article 2 requires the authorities to conduct an official investigation in the context of dangerous activities when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents ( see Öneryıldız, cited above, § 93). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ( see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002 ‑ II, and Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII).", "189. The Court also reiterates that the principles developed in relation to judicial responses to incidents resulting from dangerous activities also lend themselves to application in the area of disaster relief. Where lives are lost as a result of events engaging the State ’ s responsibility for positive preventive action, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied to the extent that this is justified by the findings of the investigation ( see Budayeva, § 142). In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in whatever capacity in the chain of events in issue (ibid. , § 142).", "190. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law ( see Öneryɪldɪz, citéd above, § 95, and Budayeva, citéd above, § 143).", "b) Application of the principles to the present case", "191. The Court reiterates that the procedural obligation under Article 2 of the Convention is not dependent on whether the State is ultimately found to be responsible for the deaths in question ( see Šilih v. Slovenia [GC], no. 71463/01, § 156, 9 April 2009). The procedural obligation under Article 2 on conducting an effective investigation has evolved into a separate and autonomous duty (ibid. , § 159, and G.N. and Others v. Italy, no. 43134/05, § 83, 1 December 2009 and the cases cited therein ).", "192. In the present case, the Court observes that criminal proceedings were commenced against the property developers responsible for the buildings which had collapsed and certain individuals directly involved in their construction. It also notes that the proceedings concerned the deaths of 195 persons. The cases were initially split up into different investigation files, and were then gradually joined and later separated again ( see paragraphs 46, 62, 73 and 74 above ). However, the various sets of proceedings at issue all originated in the same facts, that is to say the defects in the buildings which had collapsed, so that the Court considers that it must adjudicate on one single investigation, regardless of the joinder or severance of the various sets of proceedings over time.", "193. The Court further observes that the applicants took part in the criminal proceedings in question and applied to intervene in them as third parties. These criminal proceedings against five accused, which began on 14 September 1999, ended on 15 December 2011, almost twelve years later, with the conviction of only two of the accused, one of whom was, moreover, granted the benefit of a partial stay of proceedings on grounds of statutory limitation ( see paragraphs 73 ‑ 79 above ). Two of the accused were untraceable for several of those twelve years ( see paragraph 62 above ), one of whom was D.B., who was in fact never brought before the criminal authorities, so that his involvement in the impugned acts was at no point assessed by the courts. Furthermore, the criminal proceedings against three of the accused were discontinued as statute-barred ( see paragraph 80 above ) before any responsibility on their part for the impugned acts could be established.", "194. The Court reiterates that the mere passing of time can work to the detriment of the investigation, and even fatally jeopardise its chances of success ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). It also emphasises that the passing of time will inevitably erode the amount and quality of the evidence available and the appearance of a lack of diligence will cast doubt on the good faith of the investigative efforts, as well as drag out the ordeal for the complainants ( see Paul and Audrey Edwards, cited above, § 86).", "195. While acknowledging that the undeniable complexity of the case owing to the number of victims involved, the Court notes that there were only five accused persons and that the expert reports pinpointing the defects and other factors leading to the collapse of the buildings in question, as well as the corresponding responsibilities, had been prepared very promptly, that is to say in August 1999 ( see paragraphs 20-21 above ) and October 2000 ( see paragraph 45 above ). It notes, however, that a further request for an expert study issued by the Assize Court on 3 May 2001 had not been met until 5 July 2004 ( see paragraph 65 above ), that is to say almost three years two months later.", "196. Nevertheless, the importance of what was at stake in the investigation conducted in the present case in terms of identifying the responsibilities in issue, the circumstances under which the aforementioned buildings had been erected and the reasons for their collapse should have prompted the domestic authorities to address the matter rapidly in order to prevent any appearance of collusion in or tolerance of unlawful acts.", "197. Even in the presence of obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law ( see Šilih, cited above, § 1 9 5 ). In the present case, the Court can only note that the length of the proceedings at issue breaches the requirement of a prompt examination of the case, without any unnecessary delays. The criminal proceedings were conducted in such a way that only two of the accused were finally declared responsible for the events, the other three having benefited from the statute of limitation.", "198. Furthermore, the Court reiterates that it has already accepted, in the light of Article 2 of the Convention, that the failure to indict and prosecute persons holding public office owing to a refusal by the administrative authorities to authorise such action raised issues under Article 2 of the Convention (see, for example, Asiye Genç v. Turkey, no. 24109/07, § 83, 27 January 2015). In the present case, it notes the failure of the attempts by some of the applicants to ensure that the competent authorities ordered a criminal investigation of the public officials (see paragraphs 88-99 above). In this respect, the Court observes that in the absence of prior administrative authorisation, no such criminal investigation was instigated against the public officials whose shortcomings and failures in supervising and inspecting the buildings which collapsed – as noted under an expert study ( see paragraph 45 above ) and registered by the Minister of the Interior ( see paragraph 87 above ) – might otherwise have been established.", "199. As regards the applicants ’ ability to bring an action for damages against the individuals who had been involved in the construction of the buildings which collapsed, the Court reiterates that the State ’ s obligation under Article 2 of the Convention will only be satisfied if the protection afforded by domestic law operates effectively in practice ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 53, ECHR 2002 ‑ I, and Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006). In the instant case, however, the Court can only note that those applicants who sought to use the civil compensation remedies had to wait between eight and twelve years ( see paragraphs 110-131 above ) for the civil courts to deliver their judgments. The Court also emphasises the modesty of the amounts awarded to the applicants in question in respect of the non-pecuniary damage caused by the loss of their relatives, in the light of its own case-law in such matters. It therefore concludes that in the particular circumstances of the present case, the civil compensation remedy was not an effective legal remedy and accordingly rejects the Government ’ s preliminary objection in that respect.", "200. In the light of the foregoing considerations, the Court finds a violation of Article 2 of the Convention under its procedural head.", "IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "201. The applicants complained that the proceedings had been unfair and that they had not benefited from an effective remedy in order to obtain compensation for the damage sustained. They relied on Articles 6 and 13 of the Convention. Finally, the applicants considered that there had been a violation of Article 1 of Protocol No. 1 to the Convention.", "202. The Government contested the applicants ’ allegations.", "203. Having regard to its finding of a violation under Article 2 of the Convention ( see paragraph 200 above), the Court considers that it has examined the main legal issue arising in the present case. In the light of the overall facts of the case and the parties ’ submissions, it holds that there is no need to adjudicate separately on the admissibility or the merits of the other complaints under Articles 6 and 13 of the Convention or under Article 1 of Protocol No. 1 to the Convention ( see, for a similar approach, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "204. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damages", "205. Mr Özel claimed TRL 40,000 in respect of pecuniary damage and TRL 500,000 in respect of non-pecuniary damage resulting from the death of his mother.", "206. Mrs Akan claimed TRL 40, 000 in respect of the pecuniary damage which she had sustained. She also claimed TRL 500, 000 in respect of the non-pecuniary damage resulting from her mother ’ s death, as well as the suffering, fear and trauma caused by the fact that her nine-year-old daughter had been buried in rubble for several hours. She further claimed TRL 23, 000 in respect of pecuniary damage for her and her lawyer ’ s travel and accommodation expenses incurred in order to follow the criminal proceedings, as well as TRL 5, 000 in respect of pecuniary damage for the costs incurred by her lawyer in following the proceedings in Ankara before the Interior Ministry and the Council of State. Furthermore, she claimed TRL 20,000 in respect of pecuniary damage corresponding to the value of the furniture which she stated was lost in her apartment during the earthquake. Finally, she claimed TRL 300, 000 in respect of non-pecuniary damage sustained by her daughter.", "207. Mr Çakır claimed TRL 18, 000 in respect of travel expenses incurred in order to follow the criminal proceedings. He provided photocopies of train tickets as vouchers. He also claimed TRL 20,000 corresponding to the value of the property which had been destroyed in the apartment that he had lost. He had not been able, owing to the passing of time, to provide an exhaustive list of the property in question or any documents indicating its value. He further claimed a sum of US$ 90, 000 in respect of loss of earnings caused by his presence during the criminal proceedings. Mr Çakır also claimed TRL 750, 000 in respect of non ‑ pecuniary damage sustained on account of the death of his son and the anxiety which he had suffered until four days after the earthquake, when he had personally pulled his son out of the rubble of the building. He also submitted that he had been covered by rubble for some ten hours and had been very afraid, with the result that he now suffered from claustrophobia. Similarly, he stated that he suffered from feelings of anxiety and sadness related to the fact that his wife had been buried in the rubble for eight hours. He also pointed out that he had been greatly fatigued by the journeys which he had had to make in order to follow the proceedings, emphasising the length of the latter.", "208. Mr and Mrs Kılıç claimed TRL 250, 000 each in respect of the non ‑ pecuniary damage caused by the death of their son and TRL 250,000 each in respect of the resultant loss of financial support. In respect of the pecuniary damage resulting from the journeys undertaken by their lawyer in order to following the proceedings, they also claimed TRL 18, 000 jointly in respect of the criminal proceedings in Konya and TRL 5, 000 jointly in respect of the administrative proceedings in Yalova.", "209. Mr and Mrs Erdoğan claimed TRL 250, 000 jointly in respect of the non-pecuniary damage caused by the death of their son and TRL 250, 000 in respect of the resultant loss of financial support. In respect of the pecuniary damage corresponding to the journeys undertaken by their lawyer in order to follow the proceedings, they also claimed TRL 18, 000 jointly in for the criminal proceedings in Konya and TRL 5, 000 jointly for the administrative proceedings in Yalova.", "210. Mrs Yüce (Ergüden) clamed TRL 500,000 in respect of the non ‑ pecuniary damage resulting from the loss of her parents, as well as TRL 500,000 for her personal suffering caused by the long hours which she had spent buried in the rubble, the fear which that had inspired, the cost of the psychological support which she had had to seek and the exhaustion of having had to travel in order to follow the proceedings. In respect of the pecuniary damage caused by her travel in order to follow the proceedings, she claimed TRL 36, 000 for the proceedings in Konya and TRL 5, 000 for those in Yalova.", "She also claimed TRL 120, 000 in respect of pecuniary damage corresponding to the value of her apartment and the furniture which she had lost during the earthquake, as well as TRL 30, 000 in respect of pecuniary damage corresponding to her share in the inheritance of her mother ’ s apartment and the furniture appertaining to the latter.", "211. The Government contested those claims on the grounds that the applicants had not provided vouchers substantiating their claims in respect of the alleged pecuniary damage. They added that the applicants ’ claims in respect of non- pecuniary damage were unacceptable, submitting that compensation in respect of just satisfaction should not entail unjust enrichment.", "212. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, it considers it appropriate to award, in respect of non ‑ pecuniary damage, 30, 000 euros (EUR) jointly to Mrs Akan and Mr Özel, EUR 30, 000 jointly to Mr and Mrs Kɪlɪç, EUR 30, 000 jointly to Mr and Mrs Erdoğan, and 30, 000 euros (EUR) to each of the other applicants, namely Mrs Yüce (Ergüden) and Mr Çakɪr.", "B. Costs and expenses", "213. Mr Çakır claimed TRL 15, 000 in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 25, 000 dollars in respect of lawyer ’ s fees incurred before the Court and the domestic courts. He also claimed a sum equivalent to 25% of the amount of compensation which might be awarded to him in respect of lawyer ’ s fees before the Court, corresponding to the sum mentioned on the fee agreement which he had concluded with his lawyer. He submitted that document as a voucher.", "214. Mr and Mrs Kılıç claimed TRL 15, 000 jointly in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 50,000 dollars jointly in respect of lawyer ’ s fees incurred during the domestic proceedings and those brought before the Court.", "215. Mr and Mrs Erdoğan claimed TRL 15, 000 jointly in respect of miscellaneous costs and expenses relating to the domestic proceedings and US$ 25,000 dollars in respect of lawyer ’ s fees incurred during the domestic proceedings and those brought before the Court.", "216. Mrs Yüce (Ergüden) claimed TRL 15, 000 in respect of miscellaneous costs incurred during the domestic proceedings. She also claimed a sum equivalent to 25% of the amount of compensation which might be awarded to her in respect of lawyer ’ s fees before the Court, corresponding to the sum mentioned on the fee agreement which she had concluded with her lawyer, a copy of which she submitted to the Court.", "217. Mr Özel claimed a sum equivalent to 25% of the amount of compensation which might be awarded to him in respect of lawyer ’ s fees, corresponding to the sum mentioned on the fee agreement which he had concluded with his lawyer [9].", "218. The Government contested those claims. They submitted that none of the applicants apart from Mr Çakır had submitted documents in support of their claims.", "219. According to the case- law of the Court, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, in the absence of documents sufficiently substantiating their claims, the Court rejects the claims for costs and expenses lodged by Mr and Mrs Kılıç and Mr and Mrs Erdoğan [10]. On the other hand, having regard to the documents at its disposal and to its case ‑ law, the Court considers reasonable the sum of 4, 000 EUR for proceedings before it, and awards that amount to each of the applicants, namely Mr Çakır, Mrs Yüce (Ergüden) and Mr Özel [11].", "C. Default interest", "220. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "13. The applicant was born in 1935 and lives in Greece.", "14. On 13 November 2002 the ship Prestige, flying the flag of the Bahamas, was sailing in the Spanish exclusive economic zone off the coast of Galicia, carrying 70,000 tonnes of fuel oil. At a distance of 28 miles from Cape Finisterre it sent out an SOS after sustaining sudden and severe damage which produced a leak and caused the contents of its tanks to spill into the Atlantic Ocean.", "15. As the Prestige was in danger of sinking, the maritime authorities launched a large-scale operation to rescue its crew. The ship was adrift and was approaching the coast, spilling its cargo into the sea. The applicant, who was the ship ’ s Master, was taken by helicopter to the offices of the Corunna ( A Coruña ) harbourmaster, where he was arrested.", "16. The spillage of the ship ’ s cargo caused an ecological disaster whose effects on marine flora and fauna lasted for several months and spread as far as the French coast. The shores of the Atlantic coast of Cantabria and Galicia were severely polluted by the numerous waves of oil which were washed up. The oil spill blackened beaches and cliffs, destroyed marine life, adversely affected water quality and had an immediate environmental impact on numerous animal species. It caused damage to protected natural areas and had considerable repercussions on several sectors of the economy in the regions concerned, particularly on fishing, commerce and tourism.", "17. By a decision of 17 November 2002, the Corunna no. 4 investigating judge remanded the applicant in custody and set bail at 3,000,000 euros (EUR), after finding that the facts of the case disclosed sufficient indicative evidence to justify opening a criminal investigation. While acknowledging that the oil spill had been caused by an accident, the judge said that some of the information in the file, although still provisional at that stage in the proceedings, suggested that the applicant had been at fault in several respects, in particular in failing to cooperate sufficiently with the port authorities when they had tried to take the vessel in tow. The applicant ’ s conduct could constitute an offence of causing damage to natural resources and the environment and one of failing to comply with the instructions of the administrative authorities. In the judge ’ s opinion, the seriousness of the offences in question and the fact that the applicant was a foreign national who had no particular ties with Spain justified the high sum set for bail. The relevant part of the decision reads as follows:", "“The information obtained discloses indicative evidence – still provisional at the preliminary investigation stage – of an offence of causing damage to natural resources and the environment for the purposes of Article 325 and, possibly, Article 326 of the Criminal Code, and of an offence of failure to comply with the instructions of the administrative authorities, punishable under Article 556 of the Code. The investigation has produced sufficient indicative evidence to suggest that Mr Apostolos Mangouras could be criminally responsible for the offences in question. In view of the penalties laid down in the Criminal Code for these offences, and the fact that the application provided for in Article 504 bis § 2 and Article 539 of the Code of Criminal Procedure was made at the mandatory hearing, an order should be made, in accordance with Articles 503 and 504 of that Code, for the accused ’ s pre-trial detention as a preventive measure, accompanied by the right for the accused to communicate with others and the possibility of release on bail.", "The reasonable indications referred to above emerge from the documents in the case file and, in particular, from detailed examination of the testimony of the witnesses who appeared this morning. All the evidence indicates that the severe damage to the Prestige was caused by the unforeseeable phenomenon of a storm surge, but that actions were taken which could form the basis of a criminal prosecution, as indicated in the previous paragraph.", "It should be stressed that the steps taken hitherto and the conclusions to be drawn for the purposes of this decision are of a wholly provisional nature and that many further steps and much more expert evidence will be needed in order to fully elucidate the facts. However, it is clear at this stage that the Prestige did not have any emergency towing equipment or that if it did, it was not in working order, as demonstrated by the recordings of conversations. It is also clear that the ship ’ s Master, by repeatedly ignoring the instructions of the port authorities, hampered meaningful joint efforts to lessen the extremely serious risks.", "It appears that the Master of the Prestige refused for almost three hours to cooperate and subsequently continued to do so indirectly, creating difficulties by refusing to take the necessary steps to ensure effective towing of the vessel or to start the engine so that the ship could advance, however slowly. These events occurred within the country ’ s 24-mile limit and, by definition, within the 200-mile zone. It is true, as already indicated, that further investigative elements are required, in particular the ship ’ s log, which has been urgently requested, and that it will be necessary to verify all the other information contained in the recordings of conversations, transcripts of which appear to be in the possession of the Cape Finisterre control centre.", "Without prejudice to all of the above, the accused ’ s detention could be dispensed with subject to bail being furnished in the amount of three million euros. In the court ’ s view, the security in question is justified in view of the seriousness of the offences concerned and the heavy sentence they carry and also because the investigation is in the early stages, the accused ’ s release could impede the investigation, the case has clearly caused a major public outcry and, in addition to the issues of criminal responsibility raised, there are significant civil liability issues at stake involving substantial sums. Furthermore, Mr Mangouras has no ties in Spain and could leave the country at any time and thus evade prosecution. For all the reasons outlined above it is necessary and unavoidable, in the present circumstances, to fix bail. Bail cannot, for the time being at least, be replaced by a less restrictive measure.”", "18. On 19 November 2002 the applicant requested his release and, in the alternative, the reduction of bail to EUR 60,000 to reflect his personal situation. He also submitted that his advanced age should be taken into account. In a decision of 27 November 2002, the Corcubión (Corunna) no. 1 investigating judge refused the applicant ’ s request. The judge took the view that the seriousness of the offences of which the applicant stood accused justified his continued pre-trial detention and that the latter measure was exceptional, subsidiary, temporary and proportionate in nature and thus satisfied the remaining criteria laid down by the case-law of the Constitutional Court. As to the amount set for bail, the judge stated that the applicant ’ s appearance at trial was vital in order to elucidate the sequence of events following the leak in the vessel. He also reiterated the arguments of the first investigating judge to the effect that the seriousness of the offences, the public outcry caused by the marine pollution, the applicant ’ s Greek nationality, the fact that his permanent address was abroad and the fact that he had no ties with Spain justified setting a high level of bail in order to rule out any risk that the applicant might fail to appear.", "19. On 7 December 2002 the same investigating judge confirmed the decision, rejecting an application from the applicant to set it aside ( recurso de reforma ).", "20. An appeal by the applicant was dismissed on 3 January 2003 by the Corunna Audiencia Provincial on the ground that there was sufficient evidence to charge the applicant with serious offences and that the amount of bail was justified by the unusual circumstances of the case. The court pointed out that the applicant had been remanded in custody on account of his “alleged involvement in the acts of which he is accused, namely acting in a manner liable to cause a disaster, failing to comply with the instructions of the port authorities and committing an offence of causing damage to natural resources”. It further pointed out that the investigating judge had offered the applicant the possibility of avoiding custody on grounds of “alleged responsibility for offences against natural resources and the environment and an offence of failure to comply with the instructions of the administrative authorities”, subject to the posting of bail in the amount of EUR 3,000,000. The Audiencia Provincial noted the outcry caused by the alleged offences and took the view that the impugned decision was not open to criticism on any account, “including with regard to the amount of bail”.", "The Audiencia Provincial stressed that the prima facie evidence taken into consideration by the investigating judge in ordering the applicant ’ s pre ‑ trial detention concerned serious offences, that it was too early to rule on whether the offence had been committed intentionally and that the applicant ’ s detention pursued the legitimate aim of preventing the risk of his absconding, a risk closely linked to the seriousness of the alleged offence and his lack of any particular ties in Spain. It referred in that regard to the category of offences in question and the severity of the likely sentence, the fact that the accused ’ s presence was essential to the investigation, the possibility that the trial might collapse if he absconded and the public outcry surrounding the established facts.", "The Audiencia Provincial dismissed the ground of appeal based on the applicability of Article 230 of the United Nations Convention on the Law of the Sea of 10 December 1982, holding that the provision in question referred only to administrative offences relating to pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which only monetary penalties could be imposed, and not to wilful and serious acts of pollution in the territorial sea.", "21. On 6 February 2003 the Corcubión (Corunna) no. 1 investigating judge recorded the lodging of a bank guarantee in an amount corresponding to the sum set for bail, which was provided as a one-off, spontaneous humanitarian gesture by the London Steamship Owners ’ Mutual Insurance Association Limited (“the London P&I Club”), which insured the ship ’ s owner. Accordingly, on 7 February 2003, the judge ordered the applicant ’ s provisional release after eighty-three days in detention, subject to the following conditions:", "“ (a) that [the applicant] supply an address in Spain;", "(b) that he report every day before 1 p.m. to the police headquarters corresponding to the address supplied;", "(c) that he remain in the country and surrender his passport to the court ’ s registry.”", "22. On 28 May 2003 the London P&I Club and the ship ’ s owner, Mare Shipping Inc., paid out EUR 22,777,986 in compensation for the damage for which they were civilly liable within the limits laid down by Article V of the 1992 International Convention on Civil Liability for Oil Pollution Damage (“ the CLC 1992”, see paragraph 54 below).", "23. Relying on Article 17 of the Constitution (right to liberty and security), the applicant lodged an amparo appeal with the Constitutional Court. While he did not appeal against his pre-trial detention, for which he considered sufficient reasons to have been given, the applicant complained of the amount set for bail, arguing that it had been excessive and disproportionate in view of his financial circumstances and had made any prospect of provisional release unrealistic. He alleged that the amount had been fixed without account being taken of his personal circumstances, in disregard of the requirements of the court ’ s case-law.", "24. By a reasoned decision ( auto ) of 29 September 2003, the Constitutional Court declared the appeal inadmissible. It began by observing that, according to its case-law, the fact that the applicant had been released did not render the amparo appeal devoid of purpose, given that “... in the event of a breach of the fundamental right asserted, the [c] ourt should allow the appeal and grant the applicant amparo relief”.", "25. However, on the merits, the Constitutional Court ruled as follows:", "“... Article 531 of the Code of Criminal Procedure stipulates that the amount set for bail should take into account, among other factors, the nature of the offence, any previous convictions and other circumstances that might prompt the accused to seek to evade justice. According to the case-law of the European Court of Human Rights, the object of bail is to secure the presence of the accused at the trial ... and the amount should act as a deterrent against any wish to abscond.", "...", "The rulings given in the instant case concerning the amount of bail and the refusal to reduce it provided ample reasons based on the primary objective of securing the accused ’ s presence at the trial, the seriousness of the offences in question, the national and international disaster caused by the oil spill, the fact that the accused is a non ‑ national and the fact that he has no ties in Spain.", "These circumstances led the courts to consider that the risk of flight could only be reduced by setting such a high sum for bail ... They also took into consideration the accused ’ s personal and financial circumstances and his professional environment. ... In fixing bail at a level such as to dispel any wish to abscond, they further took account of other aspects of the accused ’ s personal situation, namely his Greek nationality, the fact that his permanent address is abroad and the fact that he has no ties whatsoever in Spain.", "It follows that bail was fixed on the basis of criteria of proportionality ... The exceptional amount reflects the exceptional nature of the situation.”", "26. Subsequently, in March 2005, the Spanish authorities authorised the applicant ’ s return to his country of origin, where he is now living, on condition that the Greek authorities ensured his compliance with the periodic supervision to which he had been subject in Spain. The applicant is therefore required to report every two weeks to a police station on the island of Icaria, where he was born, or in Athens, where his children live.", "27. The criminal proceedings are currently pending before the Corcubión (Corunna) no. 1 investigating judge." ]

[ "II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE", "A. Domestic law", "28. The relevant provision of the Spanish Constitution reads as follows:", "Article 17", "“ Everyone has the right to liberty and security. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law. ”", "29. The relevant provisions of the Criminal Code in force at the material time stipulated as follows:", "Article 92", "“Notwithstanding the provisions of the preceding Articles, convicted persons who have reached the age of 70 or who reach that age while serving their sentence, and who satisfy the requirements laid down [by the law], with the exception of the requirement to have served three quarters or, where appropriate, two thirds of [the sentence], may be granted conditional release.", "...”", "Article 325", "“Any person who ... causes or produces, directly or indirectly, emissions, discharges ... into ... inland or maritime waters or groundwater ... likely to severely upset the balance of natural systems, shall be liable to a term of imprisonment of between six months and four years, a day-fine payable for between eight and twenty ‑ four months and a prohibition of between one and three years on carrying out his or her occupation. Where there is a risk to persons ’ health the term of imprisonment shall be in the upper half of the range.”", "Article 326", "“The commission of any of the acts described in the previous Article shall entail a more severe sentence when accompanied by:", "a. illegal operation of an industrial or other activity using facilities which have not obtained the necessary administrative authorisation or approval; or", "b. failure to comply with the express instructions of the administrative authority aimed at remedying or putting an end to the activities referred to in the previous Article; or", "c. falsification or concealment of information on the environmental implications of the activities in question; or", "d. hampering of the administrative authorities ’ inspection activities; or", "e. a risk of irreversible or catastrophic damage; or", "f. illegal pumping of water while restrictions are in place.”", "Article 331", "“The penalty imposed for an offence referred to in this Chapter shall be in the lower half of the range where the offence was the result of gross negligence.”", "30. The second paragraph of Article 325 of the Criminal Code, as amended in November 2003, provides:", "Article 325", "“2. Persons who knowingly release, discharge or introduce ionising radiation or other substances into the air, soil or maritime waters ... in quantities such as to cause death or illness ... with irreversible effects, shall be liable to a term of imprisonment of between two and four years in addition to the penalty for causing personal injury.”", "31. The relevant provision of the Code of Criminal Procedure reads as follows:", "Article 531", "“In determining the nature and amount of the security, consideration should be given to the nature of the offence, the social circumstances of the accused and any previous convictions, together with any other circumstance which may increase or reduce the incentive to evade justice.”", "32. The Environmental Liability Act (Law no. 26/2007 of 23 October 2007) regulates operators ’ responsibility to prevent and remedy environmental damage in accordance with Article 45 of the Constitution and the precautionary and “polluter pays” principles.", "B. Protection of the marine environment", "33. An increasing tendency has been observed at European level to use the criminal law as a means of enforcing the environmental obligations imposed by European Union law.", "1. Council of Europe instruments", "34. In 1998 the Council of Europe opened for signature the Convention on the Protection of the Environment through Criminal Law ( ETS No. 172 ). To date, however, only thirteen States have signed the Convention and Estonia is the only country to have ratified it. The text includes the following provisions:", "Article 2 – Intentional offences", "“ 1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law:", "a. the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which:", "( i ) causes death or serious injury to any person, or", "( ii ) creates a significant risk of causing death or serious injury to any person;", "b. the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes or is likely to cause their lasting deterioration or death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants;", "c. the unlawful disposal, treatment, storage, transport, export or import of hazardous waste which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;", "d. the unlawful operation of a plant in which a dangerous activity is carried out and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;", "e. the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants,", "when committed intentionally.", "2. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the offences established in accordance with paragraph 1 of this Article. ”", "Article 3 – Negligent offences", "“ 1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law, when committed with negligence, the offences enumerated in Article 2, paragraph 1 a to e.", "2. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall only apply to offences which were committed with gross negligence.", "3. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall not apply to:", "– sub - paragraph 1. a. ii. of Article 2,", "– sub - paragraph 1. b. of Article 2, in so far as the offence relates to protected monuments, to other protected objects or to property.”", "Article 6 – Sanctions for environmental offences", "“ Each Party shall adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to make the offences established in accordance with Articles 2 and 3 punishable by criminal sanctions which take into account the serious nature of these offences. The sanctions available shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment. ”", "35. In its report on sea pollution of 30 March 2005, the Committee on the Environment, Agriculture and Local and Regional Affairs of the Parliamentary Assembly of the Council of Europe stated as follows:", "“ ...", "2. In the sphere of penalties", "167. Four lines of thought must be pursued:", "( a) The excessively absolute principle of freedom of navigation must be revised, as it is no longer appropriate in the context of present-day transport flows. Legally speaking, this would open the way for passive control and ultimately active control, at least in zones subject to risk. The issue of the responsibilities of control bodies could be considered at the same time.", "( b) A State which has suffered pollution damage caused by a ship must be able to demand reparation from the State whose flag that ship flies where it is established that the damage results completely or partly from the flag State ’ s failure to exercise any effective monitoring of the vessel causing the damage.", "( c) Article 230 of the Convention on the Law of the Sea must be amended to make clearer the possibility of penalties of imprisonment for the most serious pollution offences.", "( d) An international maritime criminal court must be set up. In the same way that the notion of crimes against humanity finally yielded the creation of the International Criminal Court, it cannot be excluded in the future that states may eventually enshrine the notion of ‘ crime against the environment ’, drawing the consequences, in legal terms, of the idea put forward by some of establishing the sea as the common heritage of humanity.”", "2. European Union developments", "36. The issue of environmental crime has also been debated for many years within the European Union.", "37. In its judgment, the Chamber referred to Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollution and on the introduction of penalties for infringements, which makes ship-source discharges in breach of Community law a criminal offence. The Directive further requires that both criminal and administrative penalties be imposed if the persons concerned are found to have committed or participated in the act with intent or as a result of negligent behaviour. The Directive, adopted in response to the sinking of the Erika and of the Prestige, specifically provides that the member States must implement it by 1 March 2007. It was therefore not intended to apply to events having occurred prior to that date.", "38. In any event, Directive 2005/35/EC applies to discharges occurring, inter alia, in the exclusive economic zone or equivalent zone of a Member State, from any ship with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used at the material time only on government non-commercial service. The member States must take the necessary measures to ensure that infringements are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties.", "39. In its judgment of 3 June 2008 in Case C-308/ 06 Intertanko and Others, the Court of Justice of the European Communities (“the ECJ ”), having been called upon to examine a challenge to the validity of Directive 2005/35/EC, found that the concept of “serious negligence” provided for in many national legal systems could only refer to a patent breach of a duty of care (paragraph 76 of the judgment). The ECJ further held that “serious negligence” within the meaning of the Directive should be understood as entailing an unintentional act or omission by which the person responsible committed a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation (paragraph 77).", "40. In the wake of the ECJ judgments of 13 September 2005 and 23 October 2007, which annulled respectively Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law and Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, which supplements Directive 2005/35/EC (referred to in the Chamber judgment), the Commission put forward a proposal for a directive on the protection of the environment through criminal law. The European Union legislative process culminated in the adoption of Directive 2008/99/EC. Recital 3 in the preamble to the Directive states that the availability of criminal penalties demonstrates social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. It also makes an explicit link between the need for criminal penalties and past experience in the field of environmental protection.", "41. The Directive in question requires Member States to treat as criminal offences certain activities that breach European Union environmental legislation, including:", "( i ) unlawful shipment of waste;", "(ii) trade in endangered species or in ozone-depleting substances;", "(iii) conduct causing significant deterioration of a habitat within a protected site;", "(iv) significant damage to the environment caused by the treatment, disposal, storage, transport, export or import of hazardous waste (including oil and gas, waste oils, sewage sludge, metals or electrical or electronic waste); and", "(v) significant damage to the environment caused by the unlawful discharge of materials or ionising radiation.", "42. Member States are required to subject these offences to effective, proportionate and dissuasive criminal penalties and to ensure that companies can be held liable for offences carried out by individuals on their behalf.", "43. For its part, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage is aimed at establishing a framework of environmental liability based on the “polluter pays” principle, with a view to preventing and remedying environmental damage.", "C. Vessels and crews in international law", "1. United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982", "44. The relevant Articles of this Convention, which was ratified by Spain on 15 January 1997, read as follows:", "Article 220 Enforcement by coastal States", "“...", "3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred.", "...", "6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.", "7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organisation or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed.", "...”", "Article 221 Measures to avoid pollution arising from maritime casualties", "“1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.", "2. For the purposes of this Article, ‘ maritime casualty ’ means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.”", "Article 227 Non-discrimination with respect to foreign vessels", "“In exercising their rights and performing their duties under this Part, States shall not discriminate in form or in fact against vessels of any other State.”", "Article 230 Monetary penalties and the observance of recognised rights of the accused", "“1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea.", "2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea.", "3. In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognised rights of the accused shall be observed.”", "45. With regard to detention of seafarers and their release, UNCLOS provides:", "Article 73 Enforcement of laws and regulations of the coastal State", "“1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.", "2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.", "3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.", "4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.”", "Article 292 Prompt release of vessels and crews", "“1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.", "2. The application for release may be made only by or on behalf of the flag State of the vessel.", "3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time.", "4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.”", "2. Case-law of the International Tribunal for the Law of the Sea", "46. The provisions concerning detention and release of vessels and crews have been interpreted by the International Tribunal for the Law of the Sea ( “ the Tribunal ” ). In doing so, the Tribunal has laid down a number of criteria in order to determine what constitutes a reasonable bond within the meaning of Article 73 of UNCLOS taken in conjunction with Article 292 of that Convention. Hence, it is interesting to examine the approach taken by the Tribunal in cases relating to the detention of a foreign national by the coastal State and the fixing of the amount of bail. However, it should be borne in mind, firstly, that the Tribunal, unlike the Court, is tasked with striking a balance between the competing interests of two States rather than the interests of an individual and those of a State. Secondly, the issues brought before the Tribunal concern the detention and release of both crews and vessels. Thirdly, unlike the instant case, which is about an environmental disaster, the vast majority of cases before the Tribunal concern fisheries - related violations. In its judgment of 6 August 2007 in the case of Hoshinmaru ( Japan v. the Russian Federation ), the Tribunal summarised the principles it applies in deciding what constitutes a reasonable bond. The relevant extracts reads as follows:", "“82. The Tribunal has expressed its views on the reasonableness of the bond in a number of its judgments. In the Camouco case it stated: ‘ the Tribunal considers that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form ’ ( ITLOS Reports 2000, p. 10, at p. 31, para. 67). In the Monte Confurco case it added that: ‘ This is by no means a complete list of factors. Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them ’ ( ITLOS Reports 2000, p. 86, at p. 109, para. 76). In the Volga case it stated that: ‘ In assessing the reasonableness of the bond or other security, due account must be taken of the terms of the bond or security set by the detaining State, having regard to all the circumstances of the particular case ’ ( ITLOS Reports 2002, p. 10, at p. 32, para. 65). In the Juno Trader case the Tribunal further declared: ‘ [t ] he assessment of the relevant factors must be an objective one, taking into account all information provided to the Tribunal by the parties ’ ( ITLOS Reports 2004, p. 17, at p. 41, para. 85).", "...", "89. The proceedings under Article 292 of [UNCLOS], as clearly provided in paragraph 3 thereof, can deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. Nevertheless, in the proceedings before it, the Tribunal is not prevented from examining the facts and circumstances of the case to the extent necessary for a proper appreciation of the reasonableness of the bond as set by the Respondent ( Monte Confurco, ITLOS Reports 2000, p. 86, at pp. 108-109, para. 74). However, the Tribunal wishes to emphasise that in so doing it is by no means acting as a court of appeal ( Monte Confurco, ITLOS Reports 2000, p. 86, at p. 108, para. 72). ”", "47. It is clear from the foregoing that, in assessing the reasonableness of the bond, the Tribunal takes three factors into consideration: ( i ) the gravity of the alleged offences; (ii) the penalties imposed or imposable under the laws of the detaining State in so far as they are reasonably proportionate to the gravity of the alleged offences; and (iii) the value of the detained vessel and of the cargo seized. In doing so, the Tribunal is mindful of its duty not to prejudice the merits of the case, which are decided domestically. However, the Tribunal considers that it is not prevented from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond.", "3. The Baltic and International Maritime Council ( BIMCO ) report of 23 March 2009", "48. BIMCO is an independent shipping association with a membership composed of shipowners, managers, brokers, agents and many other stakeholders with vested interests in the shipping industry. BIMCO is one of the third-party interveners in the present case. On 23 March 2009 BIMCO published a report on the treatment of seafarers which is interesting in several respects.", "49. Firstly, the report identifies fourteen cases where sanctions were taken against the seafarers involved before any deliberate act or negligence had been admitted or proven in court. The period examined runs for eleven years from 1996 until 2007 and the cases dealt with – which include the Mangouras (or Prestige ) case – involve twelve coastal States. The report concludes that: ( i ) the use of criminal sanctions against seafarers is a worldwide phenomenon, by no means restricted to particular countries or regions; (ii) although the rules are fair, their application is unjust, often flying in the face of the presumption of innocence; and (iii) while there are relatively few cases, the issues involved clearly illustrate that there are continuing problems with respect to the unfair treatment of seafarers.", "50. Secondly, the report examines a range of instruments in connection with the treatment of seafarers, including international conventions, the Universal Declaration of Human Rights and a number of regional and national instruments. In the last category, particular attention is given to the European Union legal framework and to the law in France, the United States of America, Canada and the United Kingdom. In its conclusions, BIMCO observes that the test generally applied in those instruments is gross negligence, with punishment ranging from fines to imprisonment.", "51. Finally, this report was examined by the Legal Committee of the International Maritime Organization (IMO) at its 95th session from 30 March to 3 April 2009. As regards the fair treatment of seafarers, the minutes of the Legal Committee record the following :", "“ The Committee agreed that the Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, adopted by the Legal Committee, and the Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, adopted by IMO ’ s Maritime Safety Committee, should be strictly applied by States so that a proper balance could be achieved between the need, on the one hand, for a thorough investigation of maritime accidents and, on the other hand, the protection of the rights of seafarers.", "Many delegates noted that the issue of fair treatment of seafarers was the direct responsibility of port, coastal and flag States, the State of the nationality of the seafarers, shipowners, and seafarers. States were obliged to treat seafarers fairly, pursuant to the Universal Declaration of Human Rights and regional human rights instruments, as well as under national law. There was also a consensus that States should comply with the Guidelines on Fair Treatment of Seafarers adopted by the Legal Committee.”", "52. The Guidelines on Fair Treatment of Seafarers are attached to the observations of the third-party interveners in the present case.", "D. International Convention for the Prevention of Pollution from Ships of 2 November 1973 and the Protocol thereto adopted on 17 February 1978 ( MARPOL 73/78 )", "53. This Convention which, together with the Protocol thereto, was ratified by Spain on 6 July 1984, has been amended on several occasions, most recently in July 2007 (entry into force December 2008). Annex I to the Convention relates to the prevention of pollution by oil following collision or stranding. The Convention, which is a combination of two treaties adopted in 1973 and 1978, constitutes the main instrument covering prevention of pollution of the marine environment by ships from operational or accidental causes.", "E. Civil liability and compensation for oil pollution damage", "1. 1992 International Convention on Civil Liability for Oil Pollution Damage (“ the CLC 1992”)", "54. This Convention governs the liability of shipowners for oil pollution damage. It sets up a system of strict liability for shipowners and a system of compulsory liability insurance. The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship.", "Article III", "“1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident.", "...", "4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:", "(a) the servants or agents of the owner or the members of the crew;", "(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;", "...", "unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.", "...”", "Article V", "“ ...", "2. The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.", "...”", "2. The London P&I Rules", "55. The Protection and Indemnity Clubs were set up by shipowners themselves to provide cover against various risks including those arising out of pollution caused by their vessels. They are governed by general conditions (the London P&I Rules), the relevant parts of which read as follows:", "9.28 – Omnibus Rule", "“9.28.1 Liabilities, losses, costs and expenses incidental to the business of owning, operating or managing Ships which and to such extent as the Committee in its sole discretion shall consider fall within the scope of this Class,", "9.28. 1.1 PROVIDED that there shall be no recovery which is expressly excluded by other provisions of these Rules, save to the extent that those members of the Committee present when the claim is being considered are unanimous that such exclusion should be over-ridden in the particular circumstances of the case.”", "Rule 20 – Bail", "“ 20.1 The Association may, but shall in no case be obliged to, provide on behalf of an Assured security to prevent arrest or obtain release from arrest or otherwise in respect of an entered Ship and if it does such Assured shall upon first demand made at any time by the Association in writing arrange such counter-security (which expression may in the Association ’ s sole discretion include a deposit of cash with the Association) as the Association may require and (with or without such counter-security having been required or arranged) shall indemnify the Association against all liabilities and expenses incurred by the Association in consequence of the security originally provided by the Association. In the event that the Assured does not arrange such counter-security as may have been required or does not indemnify the Association as aforesaid, the Association, without prejudice to its other rights, shall be entitled to retain any amounts which would otherwise be recoverable by such Assured, notwithstanding that the same may have no connection with the liability in respect of which the original security was provided and may relate to other periods of cover before or after that liability was incurred by the Assured or to another entered Ship. The provision of security by the Association shall be without prejudice to the Association ’ s liability to the Assured for the claim in question.”", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION", "56. The applicant complained about the amount set for bail by the Spanish authorities, which he considered disproportionate. He submitted that the authorities had not taken into account his personal situation (profession, income, assets, previous convictions, family circumstances and so forth) in deciding on the amount. The applicant relied on Article 5 § 3 of the Convention which, in its relevant part, provides:", "“Everyone arrested or detained in accordance with the provisions of paragraph 1 ( c ) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”", "A. The Chamber ’ s conclusions", "57. The Chamber found that account had to be taken of the particular circumstances of the case which distinguished it from other cases in which the Court had had occasion to rule on the length of pre-trial detention. It took the view that the seriousness of the environmental disaster justified the domestic courts ’ concern to determine who had been responsible and that, accordingly, it had been reasonable for them to seek to ensure that the applicant would appear for trial by fixing a high level of bail. It considered that the domestic authorities had demonstrated that the amount required from the applicant by way of bail had been proportionate and that they had taken sufficient account of his personal circumstances, and in particular his status as an employee of the shipowner, which had taken out insurance to cover this type of risk. The Chamber therefore concluded that the amount of bail, although high, had not been disproportionate in view of the legal interest being protected, the seriousness of the offence in question and the disastrous environmental and economic consequences of the oil spill. Accordingly, it held that there had been no violation of Article 5 § 3 of the Convention.", "B. The parties ’ submissions and the third-party interveners ’ observations", "1. The applicant ’ s submissions", "58. The applicant argued that, in confining their attention to the seriousness of the offences in question and the severity of the likely sentence, the public outcry caused by the oil spill and the fact that he was a Greek national whose permanent residence was abroad and who had no ties with Spain, the domestic courts had taken insufficient account of his personal and financial situation, his income, the fact that he had no previous convictions, his family circumstances and his age. On the last point, he submitted that he had been 67 years old on 17 November 2002 and that the Spanish Criminal Code exempted persons over the age of 70 from serving custodial sentences (see paragraph 29 above).", "59. In the applicant ’ s submission, the Chamber had incorrectly stated that bail had been paid under the terms of the contract between the Prestige ’ s owner and the latter ’ s insurers, despite affirming in paragraph 32 of the judgment that the London Steamship Owners ’ Mutual Insurance Association Limited (“the London P&I Club ”) had put up bail as “a spontaneous, one-off humanitarian gesture”. The applicant maintained that it was not permissible for the domestic courts to fix bail by reference to the financial situation of a third party in the absence of any offer from that party. While the domestic courts may have assumed that the ship ’ s owner or the insurers would put up bail, he had spent eighty-three days in detention. Allowing the domestic courts to fix the level of bail on the basis of the financial situation of a third party was tantamount to rendering the Court ’ s previous rulings ineffective, not to say meaningless.", "60. Arguing that the contractual relationship between the shipowner and the insurers of the Prestige was governed by the London P&I Rules (see paragraph 55 above), the applicant submitted that these rules obliged the insurer to put up a security only if a vessel insured by it was detained and not if a member of the crew was arrested (Rule 20). In the latter case, the insurer could pay the bail, but was by no means legally required to do so. Cover against certain shipping-related risks was left to the discretion of the insurer. The applicant referred in that regard to Rule 9.28 of the London P&I Rules (see paragraph 55 above), which the London P&I Club had apparently agreed to apply – in view of the exceptional nature of the situation – in order to pay the bail and secure the applicant ’ s release after eighty-three days in detention. He pointed out that, in any event, while the insurance contract had been binding on his employer and the ship ’ s insurer, he had not taken out any personal insurance with the London P&I Club, which had no obligations towards him. In giving reasons for the level of bail, the domestic courts had not stated that the company which insured the applicant ’ s employer had been obliged to put up bail, or that they expected it to do so. In the applicant ’ s submission, the appeal courts were not required to read the decisions of the lower courts in the light of new arguments not referred to by the latter.", "Referring to Articles III § 4 and V § 2 of the 1992 International Convention on Civil Liability for Oil Pollution Damage (“ the CLC 1992 ”; see paragraph 54 above), the applicant submitted that the Master and crew could not be held civilly liable unless the damage resulted from their personal acts or omissions, committed with intent or recklessly.", "61. The applicant contended that the amount of bail had been fixed not simply in view of his criminal responsibility, which would be engaged if he failed to appear for trial, but also – in disregard of the Court ’ s case-law – with a view to covering the compensation due in settlement of civil claims. In referring to the seriousness of the charges against the applicant, the domestic courts had actually had in mind the serious consequences of the accident. In the applicant ’ s view it was unacceptable, in determining the amount of bail to be imposed on the employee of a ship ’ s owner, to take into account public anger and indignation towards the shipping companies, before it had even been established who was responsible for the disaster.", "62. The applicant argued that the Chamber ruling had been based on inappropriate considerations and on European directives which were not in force when the accident had occurred (in breach of the principle that the law should not have retrospective effect), and also on reports containing purely political statements of intent which had no legal effect whatsoever. He pointed out that Article 230 § 1 of the United Nations Convention of the Law of the Sea ( UNCLOS ) prohibited the imposition of a custodial sentence in the circumstances of the present case, and that the case was still at the investigation stage before the Spanish courts.", "63. The applicant complained of the implications of the Chamber judgment which, in his view, called into question the principles of presumption of innocence and non-discrimination by permitting the authorities to fix bail solely by reference to the seriousness of the consequences of the alleged offence, without taking into consideration the accused ’ s personal circumstances. He stressed the pernicious effects of the Chamber judgment on the shipping industry and on any activities entailing a degree of risk, as it allowed the authorities to detain employees for reasons linked to their employer ’ s civil liability. Furthermore, the Chamber judgment created obstacles to the free movement of services within the European Union; the Court of Justice of the European Communities had held that national rules on criminal procedure could constitute a restriction on free movement. Finally, the applicant contended that the rules in question had been applied in a discriminatory manner in his case because of his nationality.", "64. In the light of these submissions, the applicant requested the Grand Chamber to find a violation of Article 5 § 3 of the Convention.", "2. The Government ’ s submissions", "65. The Government began by pointing out that the applicant had been released. Making the point that bail had been paid only two and a half months after the applicant had been remanded in custody, they contended that the amount had not prevented him from paying it.", "66. The Government were mindful of the requirements imposed by the Court ’ s case-law regarding the need to take account of the applicant ’ s personal situation in fixing bail. They were aware that the aim was to ensure that the sum in question was not used to anticipate the sentence without the accused having benefited from the guarantees of a fair trial and there being sufficient evidence against him. That would be contrary, inter alia, to the right to be presumed innocent. However, they observed that, in any event, those guarantees could come into play only if the appearance for trial of the person remanded in custody was assured; the investigating judge before whom the applicant was brought had noted the significant risk that the latter might abscond. The Government inferred from this that the level of bail had been justified by the authorities ’ wish to achieve the primary aim of the impugned measure, namely to ensure that the accused appeared for trial.", "67. Contrary to the applicant ’ s assertion, his personal circumstances had been duly taken into account, as the courts had noted his foreign nationality, his complete lack of ties in Spain and the ease with which he could have left the country and thus evaded prosecution and obstructed the course of justice. Added to these factors had been objective considerations relating to the nature and seriousness of the alleged offences, the severe penalties they carried, the criminal and civil liability issues raised by the case, the considerable and undeniable public outcry, the national and international ramifications of the disaster and the exceptional scale of the damage. It followed that the amount of bail had been fixed in a non ‑ arbitrary manner and that sufficient reasons had been given, in accordance with the criteria laid down by the Court in Neumeister v. Austria ( 27 June 1968, Series A no. 8 ) and Iwańczuk v. Poland ( no. 25196/94, 15 November 2001 ), although the cases in question differed from the present case in some significant respects.", "68. As to the nature of the alleged offences, the Government observed that the Corunna Audiencia Provincial, in its ruling on the case, had stated that the evidence available to it at that stage in the proceedings suggested that the alleged offences might have been committed intentionally ( dolus eventualis ). The court had made the point that environmental offences were not fully made out until such time as damage occurred as a result of the omissions of those who contributed to turning a hazard into catastrophic damage by repeatedly and persistently failing in their duty to manage the risk factors directly under their control and responsibility, that is to say, until the pollution of the natural resources became apparent, rather than when the pollutant was actually discharged. Furthermore, the offence of failure to comply with instructions, of which the applicant stood accused on account of the difficulties he had created by preventing the vessel from being taken in tow and hampering efforts to prevent and minimise the effects of the oil spill, had clearly been intentional and not the result of carelessness or negligence.", "69. Accordingly, in the Government ’ s view, Article 230 of UNCLOS was not applicable in the instant case, as it referred only to violations of the laws and regulations for the prevention, reduction and control of pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which monetary penalties only could be imposed, and not to wilful and serious acts of pollution in the territorial sea. UNCLOS did not provide for immunity in respect of offences against the environment and natural resources: only monetary penalties could be imposed for breaches of national laws and regulations committed in the territorial sea, except in the case of wilful and serious acts of pollution.", "70. With regard to the length of the likely custodial sentence, the Government observed that offences resulting in irreversible and catastrophic damage carried sentences of between six and nine years ’ imprisonment if committed intentionally and between four and six years if they resulted from negligence (see paragraphs 29 and 30 above). As to the applicant ’ s age, the exemption on humanitarian grounds provided for by Article 92 of the Criminal Code did not amount to immunity; exemption from serving a custodial sentence required further conditions to be met.", "71. The Government maintained that the amount of compensation due in settlement of civil claims had not been a determining factor in fixing bail, as demonstrated by the fact that the amount of bail was equivalent to less than 1% of the potential compensation. They were aware that determining the amount of security by sole reference to the losses sustained would be contrary to the Court ’ s case-law, as the measure in question was intended to ensure the appearance of the accused at trial, not to guarantee payment of the compensation due in respect of civil claims. However, the authorities were not prohibited from taking this factor, among others, into account in assessing the risk of the accused ’ s absconding, provided that his or her personal situation was also taken into consideration. On the contrary, the risk of the accused ’ s absconding could not be assessed “solely” by reference to the severity of the criminal and civil penalties – although these had to be taken into account – just as the amount of bail could not be determined “solely” on the basis of the losses incurred. The Court ’ s case-law in no way precluded account being taken of circumstances which might have a bearing on the risk of the accused ’ s absconding and on the adequacy of the sum required by way of bail.", "72. On this last point the Government stressed that, both in remanding the applicant in custody and in fixing bail, the domestic courts had taken into account his nationality, the fact that he was resident abroad and had no ties in Spain, his professional status and the environment in which he worked and – as specified by the Court in Neumeister (cited above) – the persons who might be able to stand bail for him. They had also had regard to the complex legal structure governing the activity of the ship of which he was Master and the type of commercial activity in which he had been engaged. The fact that bail had been paid promptly served to confirm the validity of the criteria used to determine the amount. Furthermore, the Chamber had been correct in finding, in paragraph 39 of its judgment, that there had been a contractual legal relationship between the ship ’ s owner and the insurer. Bail had been paid by the company which insured the applicant ’ s employer, in accordance with usual practice in the shipping industry. If the applicant was found guilty of the charges against him, the judgment would fix the amount of compensation for which the shipowner employing him was civilly liable and which would ultimately be paid by the latter ’ s insurer.", "73. The Government requested the Court to find that there had been no violation of Article 5 § 3 of the Convention.", "3. Observations of the third-party interveners", "74. The third-party interveners ’ representative observed that the criminal liability of a ship ’ s Master and crew for acts giving rise to pollution was strictly regulated by UNCLOS and MARPOL 73/78 (the International Convention for the Prevention of Pollution from Ships). Referring to Article 230 of UNCLOS, he pointed out that custodial penalties were prohibited for acts of pollution committed beyond the territorial sea, that is to say, more than twelve miles from the coast. As an additional safeguard against excessive action by the coastal State, UNCLOS provided a remedy in the form of an application for prompt release of a vessel or crew. In the three “prompt release” (fisheries-related) cases in which it had had jurisdiction – Camouco, Monte Confurco and Volga – the International Tribunal for the Law of the Sea had ordered the release of the crew.", "75. However, under the CLC 1992 and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, shipowners were civilly liable for damage of this kind, even if they were not at fault. While the CLC 1992 stipulated that shipowners must be covered for civil liability, there was no obligation to indemnify the shipowner for the bail bond of the ship ’ s Master. There was usually a discretion to provide cover in respect of matters that did not fall squarely within any of the risks covered but were closely linked thereto, where it was considered appropriate in the circumstances. However, such discretion was exercised only exceptionally and was not intended to provide cover in respect of bail for crew.", "76. While civil liability insurance cover was subject to limits, the evolution of the market had led to a 50% increase in cover provided under the CLC 1992 in the aftermath of the sinking of the Erika and the Prestige. Supplementary compensation could be paid by the Fund, but it would be inadmissible that dissatisfaction with the level of cover held by shipowners under the international system of civil liability agreed by States under the CLC 1992 should justify reliance on setting high bail for seafarers in order to secure the unsecured part of the clean-up costs.", "77. The third-party interveners ’ representative expressed concern at the increasing criminalisation of seafarers ’ actions, and referred in that regard to the Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, which called on States, inter alia, to: (a) take steps to ensure that seafarers, once interviewed or otherwise not required for a coastal State investigation following a maritime accident, were permitted to re-embark or be repatriated without undue delay; (b) consider non-custodial alternatives to pre-trial detention; and (c) make available a system for posting a reasonable bond or other financial security to allow for release and repatriation of detained seafarers pending resolution of any investigatory or judicial process. He stressed that decisions on the detention of seafarers should be taken solely in accordance with the latter ’ s personal circumstances and alleged actions and not on the basis of the possible consequences of those actions for the environment.", "C. The Court ’ s assessment", "1. General principles", "78. The Court reiterates that the guarantee provided for by Article 5 § 3 of the Convention is designed to ensure not the reparation of loss but, in particular, the appearance of the accused at the hearing. Its amount must therefore be assessed principally “ by reference to [the accused], his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non ‑ appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond ” (see Neumeister, cited above, § 14).", "79. In any event it is clear from the structure of Article 5 in general, and the third paragraph in particular, that bail may only be required as long as reasons justifying detention prevail (see, in particular, Musuc v. Moldova, no. 42440/06, § 42, 6 November 2007, and Aleksandr Makarov v. Russia, no. 15217/07, § 139, 12 March 2009 ). If the risk of absconding can be avoided by bail or other guarantees, the accused must be released, bearing in mind that where a lighter sentence could be anticipated, the reduced incentive for the accused to abscond should be taken into account (see Vrenčev v. Serbia, no. 2361/05, § 76, 23 September 2008 ). The authorities must take as much care in fixing appropriate bail as in deciding whether or not the accused ’ s continued detention is indispensable (see, among other authorities, Iwańczuk, cited above, § 66; Bojilov v. Bulgaria, no. 45114/98, § 60, 22 December 2004; Skrobol v. Poland, no. 44165/98, § 57, 13 September 2005; Hristova v. Bulgaria, no. 60859/00, § 110, 7 December 2006; Musuc, cited above, § 42; and Georgieva v. Bulgaria, no. 16085/02, § 30, 3 July 2008 ).", "80. Furthermore, the amount set for bail must be duly justified in the decision fixing bail (see Georgieva, cited above, §§ 15, 30 and 31) and must take into account the accused ’ s means (see Hristova, cited above, § 111). In that connection, the domestic courts ’ failure to assess the applicant ’ s capacity to pay the sum required was one of the reasons why the Court found a violation in the Toshev v. Bulgaria judgment ( no. 56308/00, § § 68 et seq., 10 August 2006 ).", "81. While the amount of the guarantee provided for by Article 5 § 3 must be assessed principally by reference to the accused and his assets it does not seem unreasonable, in certain circumstances, to take into account also the amount of the loss imputed to him (see Moussa v. France, no. 28897/95, Commission decision of 21 May 1997, Decisions and Reports 89-B, p. 92). In the Kudła v. Poland judgment ( [GC], no. 30210/96, ECHR 2000 ‑ XI ), the Court observed that the domestic court had fixed the amount of bail by reference to the cost of the damage, the serious nature of the offences and, above all, the risk that the applicant would abscond (§ 47). It recognised that the risk of his absconding “ was one of the main factors that [ the court ] took into account when determining the amount of bail” (ibid., § 113).", "2. Application of these principles to the present case", "82. In the instant case the applicant was deprived of his liberty for eighty-three days and was released following the lodging of a bank guarantee of EUR 3,000,000 corresponding to the amount set for bail. The Court observes that Article 531 of the Spanish Code of Criminal Procedure, as interpreted by the Constitutional Court (see paragraph 25 above), lists the main factors to be taken into consideration in fixing bail, namely the nature of the offence, the penalty at stake, the legal interest being protected, the social situation of the accused and any previous convictions, and any other circumstance which might prompt the accused to seek to evade justice. The domestic courts based their findings on the serious nature of the offence and the public outcry caused and on certain aspects of the applicant ’ s personal situation, namely his nationality and place of permanent residence and the fact that he had no ties in Spain. For its part, the Constitutional Court took the view that the lower courts had provided ample reasons justifying the amount of bail and their refusal of the request to reduce it, on the following grounds: “the primary objective of securing the accused ’ s presence at the trial, the seriousness of the offences in question, the national and international disaster caused by the oil spill, the fact that the accused is a non-national and the fact that he has no ties in Spain ”. It further noted that the courts concerned had also taken into consideration the accused ’ s personal and financial circumstances and his professional environment, and that all these circumstances taken together had led them to consider that the risk of his absconding could only be reduced by setting such a high sum for bail (see paragraph 25 above).", "83. The Court is conscious of the fact that the amount set for bail was high, and is prepared to accept that it exceeded the applicant ’ s own capacity to pay. However, it is clear from the foregoing that in fixing the amount the domestic courts sought to take into account, in addition to the applicant ’ s personal situation, the seriousness of the offence of which he was accused and also his “professional environment”, circumstances which, in the courts ’ view, lent the case an “exceptional” character. The Court must therefore ascertain whether this approach was compatible with Article 5 § 3.", "84. In this connection the Court observes that, since the Neumeister judgment (cited above), it has consistently held that “ [the accused ’ s] relationship with the persons who are to provide the security ” is one of the criteria to be used in assessing the amount of bail (see paragraph 78 above).", "85. As to whether it was legitimate to take the applicant ’ s professional environment into account in the present case, the Court reiterates at the outset that the domestic courts, which are in touch with local reality, are in principle better placed than the international judge to assess this. In the instant case it is clear from the case file that the domestic courts considered it essential to ensure the applicant ’ s appearance for trial before the courts hearing the case, in view of his responsibilities as the Prestige ’ s Master. The seriousness of the offences concerned, the “national and international disaster caused by the oil spill” (see paragraph 25 above) and the “public outcry” (see paragraphs 17, 18 and 20) were such that the presence of the applicant constituted a “primary objective” (see paragraph 25).", "86. Against this background the Court cannot overlook the growing and legitimate concern both in Europe and internationally in relation to environmental offences. This is demonstrated in particular by States ’ powers and obligations regarding the prevention of maritime pollution and by the unanimous determination of States and European and international organisations to identify those responsible, ensure that they appear for trial and, if appropriate, impose sanctions on them (see “Relevant domestic and international law” above). A tendency can also be observed to use criminal law as a means of enforcing the environmental obligations imposed by European and international law.", "87. The Court considers that these new realities have to be taken into account in interpreting the requirements of Article 5 § 3 in this regard. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999 - V ). It cannot therefore be ruled out that, in a situation such as that in the present case, the professional environment which forms the setting for the activity in question should be taken into consideration in determining the amount of bail, in order to ensure that the measure retains its effectiveness.", "88. In that connection the Court points out that the facts of the present case – concerning marine pollution on a seldom-seen scale causing huge environmental damage – are of an exceptional nature and have very significant implications in terms of both criminal and civil liability. In such circumstances it is hardly surprising that the judicial authorities should adjust the amount required by way of bail in line with the level of liability incurred, so as to ensure that the persons responsible have no incentive to evade justice and forfeit the security. In other words, the question must be asked whether, in the context of the present case, where large sums of money are at stake, a level of bail set solely by reference to the applicant ’ s assets would have been sufficient to ensure his attendance at the hearing, which remains the primary purpose of bail. The Court agrees with the approach taken by the domestic courts on this point.", "89. The Court further notes that, in deciding what constitutes a reasonable bond, the International Tribunal for the Law of the Sea also takes into account the seriousness of the alleged offences and the penalties at stake (see paragraphs 46 and 47 above). While conscious of the fact that the Tribunal ’ s jurisdiction differs from its own, the Court nevertheless observes that the Tribunal applies similar criteria in assessing the amount of security, and that the fact that it has a duty not to prejudice the merits of the case does not prevent it from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond (see, in particular, the Tribunal ’ s judgment of 6 August 2007 in the case of Hoshinmaru ( Japan v. the Russian Federation ), § 89, cited at paragraph 46 above).", "90. In the instant case it is established that bail was paid by the company which insured the owner of the ship of which the applicant was Master. Leaving aside the considerations – “humanitarian”, contractual or other – which may have motivated the insurer, and which are disputed between the parties, the very fact that payment was made by the shipowner ’ s insurer would seem to confirm that the Spanish courts, when they referred to the applicant ’ s “professional environment”, were correct in finding – implicitly – that a relationship existed between the applicant and the persons who were to provide the security.", "91. The observations of the third-party interveners ’ representative make clear that the CLC 1992 requires shipowners to take out civil liability insurance but that there is no obligation to indemnify the shipowner for the bail bond of a ship ’ s Master who has been detained by the maritime authorities. The interveners ’ representative also pointed out that the discretion exercised exceptionally by insurers in certain circumstances did not extend to providing cover in respect of bail for seafarers. And while the applicant and the third-party interveners ’ representative stressed that the shipowner and the insurer had not been bound by any obligations in the matter of bail, whether by virtue of custom and practice or contractually, the applicant acknowledged that Rule 9.28 of the London P&I Rules had served as a legal basis for payment (see paragraph 55 above). In any event, the Court observes that it was indeed the insurers of the applicant ’ s employer, that is, the London Steamship Owners ’ Mutual Insurance Association, which paid the security.", "92. In these circumstances the Court considers that the domestic courts, in fixing the amount of bail, took sufficient account of the applicant ’ s personal situation, and in particular his status as an employee of the ship ’ s owner, his professional relationship with the persons who were to provide the security, his nationality and place of permanent residence and also his lack of ties in Spain and his age. In view of the particular context of the case and the disastrous environmental and economic consequences of the oil spill, the courts were justified in taking into account the seriousness of the offences in question and the amount of the loss imputed to the applicant.", "93. It follows that there has been no violation of Article 5 § 3 of the Convention." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicants live in the villages of Villigen, Würenlingen, Böttstein and Kleindöttingen, situated in zone 1 in the vicinity of unit II of a nuclear power plant in Beznau (Canton of Aargau ). They either own or rent property. The Beznau II nuclear power plant consists of a dual-loop pressurised water reactor. The site is situated five kilometres from the German border.", "A. The application for an operating licence", "10. On 18 December 1991, the Nordostschweizerische Kraftwerke AG (“NOK”), a private company which had operated the nuclear power plant since 1971, applied to the Swiss Federal Council (the government) for an extension of its operating licence for an indefinite period. The application was supported by a technical report and a safety analysis report established by NOK. The application and these reports were published in the Official Journal ( Amtsblatt ) of the Canton of Aargau of 27 January 1992 and in the Official Gazette of 28 January 1992 together with a notice inviting persons satisfying the requirements laid down by sections 6 and 48 of the Federal Administrative Proceedings Act (see paragraph 28 below) to file an objection.", "11. By 28 April 1992 more than 18,400 objections were lodged by virtue of these provisions with the Federal Energy Office, a large part of which came from Germany and Austria. More than 99% of the objections were photocopies.", "12. In their objections the complainants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power plant. They attached an expert opinion of the Institute for Applied Ecology ( Öko-Institut – Institut für angewandte Ökologie e. V. ) in Darmstadt, Germany, to their objections, namely a report of April 1992 on selected aspects of the safety analysis report produced by NOK in December 1991. Relying in particular on section 5(1) of the Nuclear Energy Act (see paragraph 22 below), they opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed for their rights to life, to physical integrity and of property. According to them, the nuclear power plant did not meet current safety standards on account of serious and irremediable construction defects and, owing to its condition, the risk of an accident occurring was greater than usual. They also requested that in the meantime certain provisional measures be taken. The complainants also disputed the impartiality of the administrative bodies involved in the proceedings. With regard to the fact that under the applicable law the Federal Council would consider the application for an operating licence as an authority of both first and last instance, they invoked their right of access to a court, as guaranteed by Article 6 § 1 of the Convention.", "13. On 5 February 1993 the Federal Department of Transport, Communications and Energy, as the competent body deciding prior to the decision of the Federal Council, rejected the requests for provisional measures.", "B. The Federal Council's decision", "14. On 12 December 1994 the Federal Council dismissed all the objections as being unfounded and granted NOK a limited operating licence expiring on 31 December 2004. The licence was subject to compliance with various specific conditions concerning, for instance, threshold levels for radioactive substances, tests of the safeguard system, improvements of the feedwater system, a systematic programme, specific to the Beznau II nuclear power plant, for ageing surveillance and various other continuous technical improvements of the plant. NOK was also requested to submit periodically updated safety reports.", "15. In its decision the Federal Council relied on a safety evaluation report established by the Swiss Nuclear Safety Inspectorate ( Hauptabteilung für die Sicherheit der Kernanlagen – “ HSK ”). The report gave the results from the point of view of nuclear safety and radiation protection, including conclusions and proposals for licence conditions to be formulated in the licensing decision. The Federal Council further relied on an opinion of the Nuclear Technology and Safety Section of the Federal Energy Office, a statement of the Swiss Federal Nuclear Safety Commission ( Eidgenössische Kommission für die Sicherheit von Kernanlagen – “ KSA ”) on basic aspects of the application and on the safety evaluation report of the HSK and the view expressed by the cantonal authorities.", "With regard to the complainants living in Austria, the Federal Council considered that these persons had no locus standi on the ground that they were not exposed to a significantly higher risk than that existing for the population in general, in view of the distance between the nuclear power plant and the Swiss-Austrian border. As to the remaining complainants, the Federal Council was satisfied that certain complainants lived in zone 1 around the nuclear power plant and were therefore entitled to take part in the proceedings.", "The Federal Council observed that although power stations built twenty years earlier certainly no longer met current technical standards, they could nonetheless be maintained and modernised so that they could continue to operate quite safely. In order to satisfy itself that this was so in the case under review, the Federal Council considered each of the objections in turn.", "It examined in particular the complainants' objections relating to the emergency cooling system and the residual heat removal, the emergency feed system, the reactor containment and pressure-limiting system, the fire-protection, the emergency power supply, the emergency boronising system, the control circuits and outside influences, such as plane crashes and actions by third parties. The Federal Council observed that since the Beznau II nuclear power plant had come into operation various backfittings to improve the safety of the power plant had been carried out. It referred to the emergency standby system and improved power supply system (NANO), put into operation in 1992, and the filtered containment venting system. Furthermore the results of the probabilistic safety analysis carried out at the Beznau II nuclear power plant showed that a nuclear accident was unlikely. The Federal Council gave detailed reasons why it found the objections to be unfounded and concluded that on the basis of the evidence submitted no relevant deficiencies could be established. The Federal Council further pointed out that an assessment of the organisation, management and staff situation at the Beznau II nuclear power plant presented a positive overall picture.", "The Federal Council further observed that by voting against the popular initiative of 23 September 1990 (see paragraphs 20-21 below) “For the Progressive Abandonment of Nuclear Energy” the Swiss people and the majority of the cantons had expressed the wish to continue using nuclear energy.", "With regard to the complaint based on the right to life, the Federal Council pointed out that this right was protected by the Constitution and drew attention to the position under the Federal Court's case-law, whereby only deliberate infringements could constitute a breach of that right. That did not apply to the operation of a nuclear power plant, at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations.", "With regard to the reactor accident at Chernobyl, the Federal Council stated that the reactor of the Chernobyl nuclear power plant was technically not comparable to a light-water reactor like that of the Beznau II power plant. Furthermore the Chernobyl reactor had never undergone a safety review process as normally carried out in western countries. The Chernobyl power plant was therefore not relevant in the context of the assessment of the risks of western nuclear power plants.", "The Federal Council also pointed out that, in accordance with the Agreement of 10 August 1982 between the government of the Swiss Confederation and the government of the Federal Republic of Germany on mutual information on the construction and operation of nuclear installations in the vicinity of the border, the German authorities had been provided with the relevant documents relating to the requested operating licence for the Beznau II power plant. From the beginning, this subject had been discussed during the sessions of the German-Swiss Commission on the Safety of Nuclear Installations ( Deutsch-Schweizerische Kommission für die Sicherheit kerntechnischer Einrichtungen – “ DSK ”). In its report adopted at its session held from 5 to 7 October 1994 this commission had expressed the view that, if the terms of the licence were observed, the Beznau II nuclear power plant would operate safely. There would be no risk for the population of the Federal Republic of Germany.", "C. Further developments", "16. Following the decision of the Federal Council, the Beznau II nuclear power plant, like all the Swiss nuclear installations, was subject to official surveillance by the HSK in all matters regarding nuclear safety and radiation protection. The HSK presented annual reports giving a concise evaluation of the conditions and standards of operation of the Beznau II power plant. It followed from these reports that the condition of the power plant with regard to nuclear safety and radiation protection and also to its operation had been rated as good. It followed in particular from the annual report of 1997 that the notifiable incidents which had occurred were of minor relevance to nuclear safety. Appropriate improvements had been carried out. However, further efforts were needed in order to recognise problems in the area of human behaviour and organisational management. Since 1996, the Beznau II power plant had followed an ageing surveillance programme as a permanent task for its safety-relevant plant components. The relevant documentation examined by the HSK had not revealed any safety-relevant gaps in the maintenance programmes. Furthermore, these results indicated that no unacceptable reduction in safety-related properties was to be expected in the near future. As to the requirements in connection with the operating licence of 12 December 1994 the HSK stated that all conditions which were associated with deadlines had been complied with and some conditions had in part to be updated periodically with respect to plant documentation and analyses.", "17. From 13 November to 1 December 1995 a mission of the Operational Safety Assessment Review Team (OSART) from the International Atomic Energy Agency (IAEA) was conducted at the Beznau II power plant. The experts noted especially “the stringent requirements with regard to quality and safety, the professional qualities of the staff at all levels as well as the very satisfactory condition of the Beznau II nuclear power plant”, but recommended additional safety improvements.", "18. On 15 December 1997 the applicants submitted an expert report of 26 November 1997 drawn up by the Institute for Applied Ecology in Darmstadt. According to that report, the licence at issue continued to tolerate the serious safety deficiencies which had already been mentioned in the institute's previous expert reports of 1992 and 1994.", "It was stated that the modernisation which was both technically possible and had been required in the case of pressurised water reactors of the same generation had not been carried out. All the safety systems installed at the Beznau II nuclear power plant for the purpose of preventing nuclear accidents were very seriously flawed compared with more modern pressurised water reactors in central Europe.", "The report criticised, for example, the safety systems for their failure to ensure that the back-up components were physically separate and protected from fire; the standard of the emergency cooling system and residual heat removal compared to modern light water pressure reactors in central Europe; the unsatisfactory emergency power supply concerning certain components that were important for the safety of the plant; the design of the emergency power supply itself with regard to back-up and separation from the main system; the emergency feed system not satisfying the standards applying to modern pressurised water reactors; the deficiency of the emergency boronated water system, the purpose of which was to ensure that the pressurised water reactor was switched off until it was cold; the reactor containment in case the active pressure-limiting process could not be carried out successfully; the design of the pressure-limiting systems themselves and the deficiency of the control circuits with regard to the back-up system, physical separation, the main and emergency power supply, the fail-safe mechanism and the production of readings. Moreover, the lack of protection against outside influences rendered the plant much more vulnerable to a plane crash or to action by third parties.", "In spite of the fact that it was a condition for the granting of the licence that parts of the plant be modernised, no demand had been made for an actual emergency system, such as was required for the more recent western European pressurised water reactors. The report compared the attitude adopted in the last few years to older, Westinghouse-type, first-generation pressurised water reactors by the supervisory authorities in various countries of Europe, the USA and Japan and reached the conclusion that the standards applied in the licensing procedure at issue were far below those applying in other central European countries – i.e. risks were accepted that would no longer be tolerated in other countries.", "The report further referred to the OSART mission which was conducted in 1995 and the criticism expressed by the experts with regard to the organisational structures and management at the Beznau II power plant. According to the report, such deficiencies not only created an increased risk of accident but gave rise to concern with regard to the effectiveness of damage limitation and emergency protection in the event of serious malfunctions at the power station.", "19. From 30 November to 11 December 1998 a team of eleven experts of the International Regulatory Review Team (IRRT) reviewed the working methods of the HSK. During the mission six members of the team also visited the Beznau II nuclear power plant. In their report of January 1999 the reviewers identified “a number of good practices which had been recorded for the benefit of other nuclear regulatory bodies”. They also made recommendations and suggestions which indicated where improvements were necessary or desirable to further strengthen the regulatory body in Switzerland.", "I. The Federal Expropriation Act", "30. By virtue of section 1 of the Federal Expropriation Act of 20 June 1930, expropriations may be carried out “for the purposes of works that are in the interest of the Confederation or of a substantial area of the country and for any other public-interest aim recognised by federal law”.", "Section 5(1) provides:", "“The following may be expropriated: rights in rem over land, rights arising from land ownership that concern relations between owners and occupiers of adjacent premises and the rights in personam of tenants or farmers of the property to be expropriated.”", "31. With regard to the latter provision, the Federal Court has held:", "“Actions brought under Articles 679 and 684 to 686 [of the Civil Code] ... are included among the rights which may be expropriated under section 5 ... If the emissions or other allegedly adverse effects result from the construction, in accordance with the applicable law, of a building in the public interest for which land has been expropriated, or are the consequence of using the building for its intended purpose, no private-law action lies for the purpose of obtaining an injunction or compensation. A claim for compensation for expropriation replaces the cause of action under private law and must be made to the expropriations judge, who has jurisdiction not only to assess compensation but also to rule on whether the right ... exists. An expropriating authority's refusal to commence proceedings may be challenged, at last instance, by means of an administrative-law appeal to the Federal Court.” ( ATF, vol. 116 Ib, p. 253)", "In another judgment the Federal Court held:", "“By virtue of section 5 ..., rights arising from land ownership that concern relations between owners and occupiers of adjacent premises may be expropriated and be forfeited or restricted, temporarily or permanently, provided that the proportionality principle is complied with ...” ( ATF, vol. 119 Ib, p. 341)", "32. Section 5 of the Act has been applied in the case of people living near very busy main roads who were concerned about pollution from exhaust fumes ( ATF, vol. 118 Ib, p. 205). Under the Federal Court's case ‑ law, compensation is awarded if the nuisance was not foreseeable and resulted in substantial damage and if the owner suffered special loss (loc. cit., p. 205). In order to assess foreseeability, it is necessary to determine whether the owner could reasonably have known of the future nuisance when he became the owner of the property ( ATF, vol. 111 Ib, p. 234)." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Popular initiatives", "20. Article 139 of the Federal Constitution of 18 April 1999 (formerly Articles 118, 121 to 123 of the Federal Constitution of 29 May 1874) provides that 100,000 citizens may seek, by way of a constitutional or popular initiative, an amendment to the Constitution on any topic. Popular initiatives do not originate from Parliament or the government, but from the citizens themselves.", "21. On 18 February 1979 the popular initiative on the “Safeguard of the People's Rights and the Safety of the Construction and Operation of Nuclear Installations” was rejected by a majority of the people and the cantons. In 1981 the popular initiative “For the Interruption of the Nuclear Power Programme” failed, because the necessary 100,000 signatures could not be collected within eighteen months. On 23 September 1984 the people and the cantons rejected the initiative “For a Future without Further Nuclear Power Plants”. On 23 September 1990 the popular initiative “Stop the Construction of Nuclear Power Plants (Moratorium)” was adopted, while on the same date the initiative “For the Progressive Abandonment of Nuclear Energy” was rejected. Two further popular initiatives “Moratorium-Plus – for the Extension of the Moratorium concerning the Construction of Nuclear Power Plants and the Limitation of the Nuclear Risk” and “Get out of Nuclear Power – For a Change in the Field of Energy and for the Progressive Closing-Down of Nuclear Power Plants (Get out of Nuclear Power)”, filed on 28 September 1999, are still pending.", "B. The Federal Act on the Peaceful Use of Nuclear Energy", "22. Under section 4(1)(a) of the Federal Act of 23 December 1959 on the Peaceful Use of Nuclear Energy (“the Nuclear Energy Act”), a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations.", "Section 5(1) provides that a licence must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights.", "Section 6 provides that the Federal Council or a body designated by it decides licence applications. No appeal lies against its decisions.", "Section 8 stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision; the Federal Council and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order, in particular, to protect people, the property of others and important rights; they are also entitled to supervise compliance with these instructions.", "23. Under the Federal Court's case-law, the safety of nuclear power plants can be considered by the Confederation only in the context of its licensing procedures ( Judgments of the Federal Court ( ATF ), vol. 119 Ia, p. 402).", "C. Federal order concerning the Nuclear Energy Act", "24. In addition to the previously required authorisations, Article 1 of the federal order of 6 October 1978 concerning the Nuclear Energy Act requires a general licence of the Federal Council for all nuclear installations as a prerequisite for granting construction and operating licences. The Federal Council has the exclusive competence to grant licences. The procedure for the granting of the general licence requires, according to Article 5, publication of the application and, according to Article 7, publication of the comments and expert opinions on the application.", "The licensing decision is based on the conclusions of the safety authorities reached at the end of the detailed review and assessment of the safety analysis report, of the probabilistic safety analysis, and of additional documents that may be requested from the applicant (see paragraphs 25 and 26 below).", "D. Federal ordinance concerning the supervision of nuclear installations", "25. The ordinance of 14 March 1983, which deals with the regulation of nuclear installations, entrusts the HSK with the regulatory role.", "The ordinance formally establishes the HSK as the competent authority for supervising nuclear installations as long as they exist, including inspections of nuclear power plants. The HSK supervises the operators, and assesses the nuclear safety and radiation protection of nuclear power plants. It proposes guidelines which are of a directional nature for the operators.", "Within the framework of the licensing process, the HSK assesses in detail the application and the safety analysis report submitted by the applicant. The objective of this assessment is to verify compliance with the relevant regulations and guidelines. In this work, the HSK also has to take into account the established international standard of science and technology. The results and insights of the review and assessment are documented in a safety evaluation report. This report is used by the Federal Council as a basis for deciding upon the approval of applications made by the operator of a nuclear power plant.", "The HSK provides information on aspects of nuclear safety and radiation protection in Swiss nuclear power plants as well as on its own activities and also draws up annual reports.", "After the granting of a licence, the design and construction of the existing nuclear power plants are reassessed periodically, both in the case of incidents and during normal operation. Safety reviews have to be performed at intervals of about ten years. Deficiencies in the nuclear power plants, when compared to the current state of science and technology, have to be assessed. If they affect the safety, they have to be eliminated by means of appropriate backfitting.", "The HSK is independent from any organisation concerned with the promotion or utilisation of nuclear energy. Although it is part of the Federal Department of Environment, Transport, Energy and Communication and attached to the Federal Energy Office, at the technical level the HSK acts independently from the rest of the Office and from the Federal Department. The legally required review and assessment of applications through the HSK is conducted solely on the basis of nuclear safety criteria to the exclusion of any other considerations.", "E. Federal ordinance concerning the Swiss Federal Nuclear Safety Commission", "26. According to section 1 of this ordinance of 14 March 1983, the KSA is an advisory body to the Federal Council and the Federal Department of Environment, Transport, Energy and Communication. It is administratively attached to the Federal Office of Energy.", "Section 2 provides that the KSA gives its opinion on licence applications and on whether necessary and supportable measures to protect persons and the environment against the hazards of ionising radiation are taken, and whether such measures are in conformity with experience and with the state of science and technology.", "The role of the KSA is to bring in additional professional expertise from outside the administration and to provide a second opinion to the federal government. The KSA reports directly to the Federal Council. It is therefore independent from other governmental bodies concerned with the use of nuclear energy.", "F. The Federal Judicature Act", "27. Section 97 of the Federal Judicature Act of 16 December 1943 provides that the Federal Court hears, as a final court of appeal, administrative-law appeals against decisions of the federal authorities. However, by virtue of section 100(u) no appeal lies in matters of nuclear energy against decisions concerning licences for nuclear installations and preparatory acts.", "G. The Federal Administrative Proceedings Act", "28. Section 6 of the Federal Administrative Proceedings Act of 20 December 1968 provides that the persons whose rights could be affected by the decision which will be given are considered as parties, as well as those persons, organisations or authorities who have the right to appeal against that decision. Section 44 lays down the principle that an appeal lies against administrative decisions. By section 46, however, an appeal is inadmissible in particular if it is made against a decision against which an administrative-law appeal lies to the Federal Court or against final decisions given in accordance with other federal laws. Under section 48(a) a person has locus standi to appeal if he is affected by the decision and has an interest worthy of protection in having the decision set aside or varied.", "H. The Civil Code", "29. Article 28 of the Civil Code protects the right to the integrity of the person while actions for nuisance are governed by Article 28 (a).", "Other relevant provisions of the Civil Code read as follows:", "Article 679", "“Any person who sustains or is exposed to damage because an owner abuses his right may bring an action against that owner requiring him to restore the previous position or to take preventive measures, without prejudice to any damages.”", "Article 684", "“1. When exercising their right, especially when carrying on industrial processes, owners are required to refrain from acting in a manner detrimental to neighbouring properties.", "2. The following, in particular, are prohibited: emissions of smoke or soot, offensive smells, noises, and vibrations which are harmful and exceed the limits of the tolerance which neighbours must show to each other having regard to local custom and the situation and type of the buildings.”", "THE LAW", "I. withdrawal of four applicants", "33. On 16 July 1999 the applicants' lawyer informed the Court that four of the applicants, namely Mrs Ursula Brunner, Mr Ernst Haeberli, Mrs Helga Haeberli and Mr Hans Vogt-Gloor, did not intend to pursue the proceedings before the Court.", "34. The Court takes note of the declaration of these four applicants and, in so far as their complaints are concerned, strikes the application out of its list (Article 37 § 1 (a) of the Convention).", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "35. The applicants complained that they were denied effective access to a court in breach of Article 6 § 1 of the Convention, the relevant part of which provides:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "The applicants complained in particular that it had not been open to them under Swiss law to seek judicial review contesting the lawfulness of the decision of the Federal Council of 12 December 1994 granting the Nordostschweizerische Kraftwerke AG (“NOK”) a limited operation licence for the Beznau II nuclear power plant.", "A. The Government's preliminary objection of failure to exhaust domestic remedies", "36. The Government raised a preliminary objection of failure to exhaust domestic remedies. As before the Commission, the Government pleaded that the applicants could have filed a civil action based on Articles 679, 684 and 928 and on Article 28 (a) (1) of the Swiss Civil Code. While no appeal lay against the decision to grant an operating licence for a nuclear power plant, civil actions related to property and neighbours' rights would have enabled a court, if the conditions were met, to protect these rights, for instance by ordering the closure of the nuclear power plant, even if such a decision would not have invalidated the operating licence of the nuclear power plant as such.", "37. The Court considers that the Government's argument is so closely linked to the substance of the applicants' complaints under Article 6 § 1 that the preliminary objection should be joined to the merits (see, for example, the Kremzow v. Austria judgment of 21 September 1993, Series A no. 268 ‑ B, p. 41, § 42).", "B. Applicability of Article 6 § 1", "1. Arguments before the Court", "38. The applicants submitted that their complaints in the present case and the nature of the decision which they contested – the granting of the extension of the operating licence of a nuclear power plant – were identical to the complaints and the nature of the contested decision in the case of Balmer-Schafroth and Others v. Switzerland ( judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV). In the present case, however, so they argued, Article 6 § 1 was applicable. The decision to grant NOK an operating licence for the Beznau II nuclear power plant effectively “determined” their civil rights to the protection of their property and physical integrity. The “civil” character of the rights to life and physical integrity followed from the Swiss legal order. The protection of physical integrity was governed by the Civil Code and the Law of Obligations. Section 5 of the Nuclear Energy Act merely put into more concrete terms the civil right to protection in the area of the law relating to nuclear installations. Moreover, there was a serious disagreement between them and the Federal Council about the question whether the legal conditions for the granting of the operating licence were satisfied. Finally, the outcome of the dispute was directly decisive for their entitlement to protection against the activities of the nuclear power plant. The applicants referred in particular to the expert opinion of 26 November 1997 drawn up by the Institute for Applied Ecology in Darmstadt, Germany (see paragraph 18 above). This report pointed to specific safety deficiencies of the Beznau II nuclear power plant and showed, so they argued, that it did not meet the standards of pressurised water reactors in central Europe. In the applicants' submission, the Swiss authorities, in particular the Federal Council, incorrectly and negligently assessed the security standards. Furthermore, the Federal Council neither recognised nor took account of the criticism of the OSART mission concerning the serious deficiencies in the organisational structures and management at the Beznau II power plant. They further pointed out that the report of January 1999 of the International Regulatory Review Team (IRRT) (see paragraph 19 above) not only contained positive observations, but also expressed considerable criticism, for instance with regard to insufficient human resources and the lack of guidelines resulting in too vague a risk assessment, especially in the areas of fire and seismological protection. The applicants claimed that the probative value of the expert report prepared by the Institute for Applied Ecology could not simply be refuted by reference to the authority of the reports submitted by the Swiss Nuclear Safety Inspectorate ( Hauptabteilung für die Sicherheit der Kernanlagen – “ HSK ”). They further submitted that the numerous technical safety reports and probability studies produced on the subject of nuclear fission described a large number of concrete malfunctions that could occur – and had already occurred – at various atomic power plants and thus turned the inherent risk into a reality. The applicants concluded that, both in the course of the domestic proceedings relating to the granting of the licence and with the expert report of the Institute for Applied Ecology, they had shown the connection between the extension of the operating licence and the existence of a serious, specific and immediate danger, which justified the application of Article 6 § 1 of the Convention.", "According to the applicants, the question whether the relatively high risk was compatible with national legislation and their rights to physical integrity and of property could only be satisfactorily examined by an independent court.", "On 28 February 2000 the applicants submitted unsolicited material relating to the supply of nuclear fuel to the Beznau II nuclear power plant (see paragraph 8 above). According to a press communiqué issued by NOK on 24 February 2000, various collaborators of British Nuclear Fuels Ltd (BNFL) at Sellafield producing MOX (mixed oxides of plutonium and uranium) nuclear fuel were engaged in falsification of safety data from 1996 to 1998. The British Nuclear Installations Inspectorate report released on 17 February 2000 revealed that the falsification of safety data for MOX fuel affected BNFL's clients in Japan, Germany and Switzerland. The applicants submitted that NOK had taken no safety measures at all, the Japanese authorities had refused the fuel for safety reasons and the German authorities had closed down the Unterweser reactor which had received four assemblies of MOX fuel from BNFL. In the applicants' view, this whole affair showed, once again, that the Beznau II power plant was operated with intolerable risks for the direct neighbours and that only a court could change this dangerous custom.", "The applicants finally asked the Court to clarify its case-law in so far as it required proof of a serious, specific and imminent danger as a condition for the applicability of Article 6 § 1. In their submission, a distinction had to be drawn between, on the one hand, the procedural Convention right to examination by a domestic court of the governmental decision to grant an extension of the operating licence and, on the other hand, the possible right under the substantive national law to have the nuclear power plant closed. As far as the procedural Convention right was concerned, it should be sufficient, they maintained, only to prove the serious nature of the risk. If proof of immediate danger in the sense of a serious accident being imminent had to be furnished for the purposes of Article 6 § 1, there would no longer be any difference in practice between procedural and substantive law.", "39. The Government agreed with the applicants that their complaints in the present case and the nature of the decision which they contested – the granting of the extension of the operating licence of a nuclear power plant – were identical to the complaints and the nature of the contested decision in the Balmer-Schafroth and Others case. They accordingly recalled their submissions in the latter case, where they had maintained that the matters impugned by the applicants did not come within the ambit of Article 6 § 1 of the Convention (see the Balmer-Schafroth and Others judgment cited above, p. 1358, § 35) and had shared the dissenting opinion of six members of the Commission to the effect that “the policy of a country in matters of energy supply is of general interest and must be decided upon in the democratic political process designed for decision-making on the national level” (see the dissenting opinion of Mr Trechsel joined by Mr Gözübüyük, Mr Conforti, Mr Šváby, Mr Lorenzen and Mr Herndl, annexed to the Commission's opinion in the Balmer-Schafroth and Others case, ibid., p. 1376).", "On the other hand, the Government took note of the Court's reasoning in the Balmer-Schafroth and Others judgment and no longer disputed that the applicants were relying on rights recognised in Swiss law, namely the rights to life, to physical integrity and of property, and that there was a genuine and serious dispute relating to the extension of the operating licence, having regard in particular to the fact that the Federal Council had declared the applicants' objections admissible (see the Balmer-Schafroth and Others judgment cited above, pp. 1358 and 1359, §§ 34 and 38).", "As to the question whether the outcome of the proceedings in issue was directly decisive for the rights asserted, the Government maintained that the applicants had, like the applicants in the Balmer-Schafroth and Others case, failed to show that the operation of the power plant exposed them personally to a danger that was not only serious but also specific and imminent. According to the Government, the new expert opinion drawn up by the Institute for Applied Ecology in Darmstadt took a stand in favour of one party and could not be considered as an independent expert opinion, while the Federal Council, when making its decision of 12 December 1994, relied on serious and detailed expert opinions prepared by the Swiss Nuclear Safety Inspectorate (“ HSK ”) and the Federal Nuclear Safety Commission ( Eidgenössische Kommission für die Sicherheit von Kernanlagen – “ KSA ”), both of which were independent from the company operating the nuclear power plant. Unlike the Institute for Applied Ecology in Darmstadt, these bodies had a clear knowledge of the nuclear installations in Switzerland, which gave them the particular competence to assess the questions linked to the safety of the Beznau II nuclear power plant. It followed from the reports prepared by these bodies that the standard of the Beznau II nuclear power plant was in line with the norms related to nuclear safety. This was shown by the fact that incidents which had occurred during the operation of this power plant were exceptional and above all minor.", "The Government further referred to the OSART and IRRT missions conducted by international experts who had expressed a positive opinion on the safety of the nuclear power plant and the work of the HSK (see paragraphs 17 and 19 above).", "The Government concluded that the link between the Federal Council's decision and the rights invoked by the applicants was therefore too tenuous and remote. In the Government's submission, Article 6 § 1 was accordingly likewise not applicable in the present case.", "The Government added that, in any event, the right to physical integrity was not a civil right so as to attract the application of Article 6 § 1. This provision was applicable where, unlike in the present case, the subject matter of the action was pecuniary in nature and founded on infringement of rights which were also pecuniary rights.", "40. The Commission, examining the circumstances of the present case in the light of the Balmer-Schafroth and Others judgment, also concluded on similar grounds that Article 6 § 1 was not applicable.", "41. Fifteen dissenting members of the Commission, however, expressed the view that the report of 26 November 1997 prepared by the Institute for Applied Ecology constituted sufficient evidence to establish a specific and immediate danger to which the applicants were exposed by reason of the operation of the Beznau II nuclear power plant. The outcome of the procedure before the Federal Council was therefore directly decisive for the rights relied on by the applicants, with the consequence that Article 6 § 1 of the Convention was applicable in the present case. In the dissenters' view, since the applicants were not entitled in this regard to have access to an independent and impartial tribunal with full jurisdiction to review the factual and legal issues, there had been a violation of that provision.", "2. The Court's assessment", "42. The Court agrees with the parties that the applicable domestic legislation and the nature of the grievance raised under Article 6 § 1 are the same as in the earlier Balmer-Schafroth and Others case.", "The Court will accordingly examine the facts of the present case in the light of the principles applied in the Balmer-Schafroth and Others judgment.", "(a) Applicable general principles", "43. The Court reiterates that, according to its well-established case-law, Article 6 § 1 of the Convention may be relied on by individuals who consider that an interference with the exercise of one of their (civil) rights is unlawful and complain that they have not had the possibility of submitting that claim to a court meeting the requirements of Article 6 § 1 (see the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, § 44). In the words of the Court's Golder judgment, Article 6 § 1 embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). This right to a court extends only to “disputes” (“ contestations ” in the French text) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the following judgments : Le Compte, Van Leuven and De Meyere cited above, pp. 21-22, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, pp. 45-46, § 56; Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Balmer-Schafroth and Others cited above, p. 1357, § 32; Le Calvez v. France, 29 July 1998, Reports 1998-V, pp. 1899-900, § 56).", "(b) Existence of one or more “rights” recognised under domestic law", "44. According to the applicants, they wanted to be able to challenge before the courts the lawfulness of the Federal Council's decision of 12 December 1994 to grant NOK the renewal of its operating licence in order to vindicate their rights to life, to physical integrity and of property. The terms of the earlier objections lodged on 28 April 1992 under section 48(a) of the Federal Administrative Proceedings Act (see paragraph 28 above), relying as they did on section 5(1) of the Nuclear Energy Act which refers to the protection of “people, the property of others and important rights” (see paragraph 22 above), bear out that such concerns did indeed underlie the applicants' opposition to the renewal of the licence (see paragraph 11 above). The rights adverted to by the applicants are, as the Government have always conceded, ones accorded to individuals under Swiss law, notably in the Constitution and in the provisions of the Civil Code governing neighbours' rights (see paragraphs 29 to 32 above).", "(c) Existence of a justiciable “dispute” (“ contestation ”) over those “rights”", "45. It was not contested by the Government in the light of the Court's Balmer-Schafroth and Others judgment that there was a “genuine and serious” dispute of a justiciable nature between the applicants and the decision-making authorities as to whether the licence for the operation of the nuclear power plant should be extended. On this point, the Court recalls its reasoning in that judgment :", "“ ... Although, as the Government indicated, the decision to be taken necessarily had to be based on technical data of great complexity – a fact which does not in itself prevent Article 6 being applicable – the only purpose of the data was to enable the Federal Council to verify whether the conditions laid down by law for the grant of an extension had been met.", "... Inasmuch as it sought to review whether the statutory requirements had been complied with, the Federal Council's decision was therefore more akin to a judicial act than to a general policy decision ...", "Moreover, in the light of the above considerations and the fact that the Federal Council declared the applicants' objection admissible, there can be no doubt that the dispute was genuine and serious.” (loc. cit., pp. 1358-59, §§ 37-38).", "The Court is of the opinion that the same considerations and the same conclusion apply in the present case, where the Federal Council likewise examined the applicants' objections on their merits and dismissed them as ill-founded (see paragraph 14 above).", "46. It remains to be determined whether the “dispute” as to the lawfulness of the Federal Council's decision to renew the operating licence can be said to have been over the domestic-law rights that the applicants have identified as being ones they wished to vindicate before a court, that is whether the outcome of the procedure leading to the renewal decision was directly decisive for those domestic-law rights. This raises the same issue of remoteness as in the Balmer-Schafroth and Others case as to whether the link between the Federal Council's decision and the applicants' rights to adequate protection of their life, physical integrity and property was sufficiently close to bring Article 6 § 1 into play, and was not too tenuous or remote. In the Balmer-Schafroth and Others judgment the Court found as follows:", "“[The applicants] did not ... establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal Council's decision and the right invoked by the applicants was too tenuous and remote.", "Article 6 § 1 is accordingly not applicable in the instant case.” (loc. cit., p. 1359, § 40)", "47. As recalled above (at paragraphs 38 and 41), both the applicants and the dissenters in the Commission considered that the facts of the present case were to be distinguished from those in Balmer-Schafroth and Others, in that the present applicants, unlike the applicants in the earlier case, had adduced sufficient evidence in the form of the report of the Institute for Applied Ecology in Darmstadt to establish a specific and immediate danger to which they were exposed by reason of the operation of the Beznau II nuclear power plant.", "48. The Court must ascertain whether the applicants' arguments were sufficiently tenable; it does not have to decide whether they were well-founded in terms of the applicable Swiss legislation (see, mutatis mutandis, the Le Calvez judgment cited above, pp. 1899-900, § 56, and the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 65, § 38).", "49. To begin with, the Court notes that, as in the Balmer-Schafroth and Others case, the Federal Council based its licensing decision of 12 December 1994 in the present case on the conclusions reached at the end of the detailed review and assessment of the safety analysis report submitted by the operating company, on the safety evaluation report prepared by the HSK on the basis of nuclear safety criteria and on the statement of the KSA reviewing and commenting both on the licence application and on the corresponding safety evaluation report of the HSK (see paragraph 15 above). At the technical level the HSK acts independently from the Federal Office of Energy and the Federal Department of Environment, Transport, Energy and Communication (see paragraph 25 above). The KSA, on the other hand, is administratively attached to the Federal Energy Office, but reports directly to the Federal Council (see paragraph 26 above). It is therefore independent from the other governmental bodies concerned with the use of nuclear energy. Both safety authorities, the HSK and the KSA, are independent of the operator.", "50. The Court also notes that subsequent inspections and reports, including some carried out by international bodies, whilst not having a direct bearing on the dangers existing at the time of the impugned renewal decision, go towards confirming rather than undermining the expertise relied on by the Federal Council. The international OSART and IRRT missions conducted so far have noted “the stringent requirements with regard to quality and safety, the professional qualities of the staff at all levels as well as the very satisfactory condition of the Beznau II nuclear power plant”, although additional safety improvements have been recommended. They have also identified “a number of good practices which had been recorded for the benefit of other nuclear regulatory bodies” (see paragraphs 17 and 19 above). Furthermore, according to the annual reports of the HSK, the condition and the operational management of the Beznau II nuclear power plant had been rated as good with regard to nuclear safety and radiation protection. It followed in particular from the annual report of 1997 that the incidents which had occurred were of minor relevance to nuclear safety and appropriate improvements had been carried out. The Beznau II nuclear power plant had been progressively backfitted to address the major on-going developments in nuclear power plant safety technology. NOK had complied with the licensing conditions in connection with the operating licence of 12 December 1994 and some conditions had in part to be updated periodically with respect to plant documentation and analyses (see paragraph 16 above).", "51. Having regard to the foregoing, the Court considers that the facts of the present case provide an insufficient basis for distinguishing it from the Balmer-Schafroth and Others case. In particular, it does not perceive any material difference between the present case and the Balmer-Schafroth and Others case as regards the personal circumstances of the applicants. In neither case had the applicants at any stage of the proceedings claimed to have suffered any loss, economic or other, for which they intended to seek compensation (see paragraph 12 above, and the Balmer-Schafroth and Others judgment cited above, pp. 1352 and 1357-58, §§ 9 and 33 ). In the earlier case also, the applicants had attached “several expert opinions” to the objection which they lodged with the Federal Council against the operating company's application for an extension of its operating licence (loc. cit.). Contrary to the view of the applicants and the fifteen dissenters in the Commission (see paragraphs 38 and 41 above), it cannot be said that the new report of the Institute for Applied Ecology in the present case, any more than the expert reports adduced by the objectors in the Balmer-Schafroth and Others case, showed that at the relevant time the operation of the Beznau II power plant exposed the applicants personally to a danger that was not only serious but also specific and, above all, imminent. Neither is such a consequence shown by the unsolicited material, relating to the supply of nuclear fuel to the power plant during a subsequent period, which was submitted by the applicants after the close of the written procedure (see paragraph 8 above). The Court consequently cannot but arrive in the present case at the same conclusion on the facts as in the Balmer-Schafroth and Others case (see the extract from the Balmer-Schafroth and Others judgment quoted above at paragraph 45), namely that the connection between the Federal Council's decision and the domestic-law rights invoked by the applicants was too tenuous and remote.", "52. Indeed, the applicants in their pleadings before the Court appear to accept that they were alleging not so much a specific and imminent danger in their personal regard as a general danger in relation to all nuclear power plants; and many of the grounds they relied on related to safety, environmental and technical features inherent in the use of nuclear energy. Thus, in their reply to the questions put by the Court, the applicants linked the danger to their physical integrity to the alleged fact that “every atomic power station releases radiation during normal operation ... and thus puts the health of human beings at risk”, and they concluded:", "“To summarise, it needs to be said that, from the medical point of view, the operation of an atomic power plant involves a specific and direct risk to health both when the plant is working normally and when minor malfunctions occur. ... [I]t is necessary to take a decision of principle in respect of nuclear energy. The operation of atomic power plants involves high risks and it may – and with a considerable degree of probability will – damage the property and physical integrity of those living in the vicinity.”", "53. To this extent, the applicants are seeking to derive from Article 6 § 1 of the Convention a remedy to contest the very principle of the use of nuclear energy, or at the least a means for transferring from the government to the courts the responsibility for taking, on the basis of the technical evidence, the ultimate decision on the operation of individual nuclear power stations. As the applicants put it in their memorial, “if the authority responsible is to take proper account of such risks” – namely “a high residual risk of unforeseen scenarios and of an unforeseen sequence of events leading to serious damage” – “and assess whether the relevant back-up systems are acceptable, then it is required to be particularly independent, and only courts usually possess this independence”. In their reply to the Court's questions they furnished an explanation of their position in similar terms: “Only a judicial examination in adversarial proceedings would appear to be the appropriate way to recognise and examine all possible deficiencies before it is too late.”", "54. The Court considers, however, that how best to regulate the use of nuclear power is a policy decision for each Contracting State to take according to its democratic processes. Article 6 § 1 cannot be read as dictating any one scheme rather than another. What Article 6 § 1 requires is that individuals be granted access to a court whenever they have an arguable claim that there has been an unlawful interference with the exercise of one of their (civil) rights recognised under domestic law. In this respect, Swiss law empowered the applicants to object to the extension of the operating licence of the power station on the grounds specified in section 5 of the Federal Nuclear Act. It did not, however, give them any rights as regards the subsequent extension of the licence and operation of the station beyond those under the ordinary Civil Code for nuisance and de facto expropriation of property (see paragraphs 29-32 above). It is not for the Court to examine the hypothetical question whether, if the applicants had been able to demonstrate a serious, specific and imminent danger in their personal regard as a result of the operation of the Beznau II power plant, the Civil Code remedies would have been sufficient to satisfy these requirements of Article 6 § 1, as the Government contended in the context of their preliminary objection.", "This being so, there is likewise no necessity for the Court to rule on the Government's preliminary objection (see paragraphs 36-37 above).", "55. In sum, the outcome of the procedure before the Federal Council was decisive for the general question whether the operating licence of the power plant should be extended, but not for the “determination” of any “civil right”, such as the rights to life, to physical integrity and of property, which Swiss law conferred on the applicants in their individual capacity.", "Article 6 § 1 is consequently not applicable in the present case.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "56. Before the Commission, the applicants also alleged a violation of Article 13 of the Convention on the ground that, in relation to the decision to renew the operating licence of the Beznau II nuclear power plant, no effective remedy was available to them under domestic law enabling them to complain of a violation either of their right to life under Article 2 or of their right to respect for physical integrity as safeguarded under Article 8. Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "57. The Commission and the Government considered Article 13 to be inapplicable for the same reasons as for Article 6 § 1. The Government further submitted that, in so far as Articles 2 and 8 of the Convention could have any pertinence in the present case, the Civil Code action referred to in the context of the plea of non-exhaustion of domestic remedies under Article 6 § 1 (see paragraphs 29-32 above) constituted an effective judicial remedy available to the applicants for the protection of their life, physical integrity and property.", "58. Article 13 has been consistently interpreted by the Court as requiring a remedy only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52).", "59. As pleaded, the applicants' complaint under Article 13, like that under Article 6 § 1, was directed against the denial under Swiss law of a judicial remedy to challenge the Federal Council's decision. The Court has found that the connection between that decision and the domestic-law rights to protection of life, physical integrity and property invoked by the applicants was too tenuous and remote to attract the application of Article 6 § 1 (see paragraphs 48-51 above). The reasons for that finding likewise lead to the conclusion, on grounds of remoteness, that in relation to the Federal Council's decision as such no arguable claim of violation of Article-2 or Article 8 of the Convention and, consequently, no entitlement to a remedy under Article 13 have been made out by the applicants. In sum, as in the Balmer-Schafroth and Others case the Court finds Article 13 to be inapplicable.", "60. As in relation to Article 6 § 1 (see paragraph 54 above), it is not for the Court to examine in the present case the further, hypothetical question whether, in the event of an arguable claim of violation of Articles 2 and 8 as a result of the operation of the Beznau II nuclear power plant, the Civil Code action relied on by the Government would have provided an effective remedy for the purposes of Article 13." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The first five applicants are individual Spanish nationals who live in Itoiz (Navarre province ). The third applicant is also the chairperson and legal representative of the sixth applicant, the Coordinadora de Itoiz association. The first, second, fourth and fifth applicants are members of this association.", "A. Background to the case", "9. The case originated in an engineering project of February 1989 for the construction of a dam in Itoiz (Navarre province) which would result in the flooding of three nature reserves and a number of small villages, including Itoiz, where the applicants live. According to the Government, the total number of landowners affected by the dam's construction is 159, thirteen of whom live in Itoiz itself.", "10. On 6 May 1988 the Coordinadora de Itoiz association was set up; its articles of association state, inter alia, that its aim is “to coordinate its members'efforts to oppose construction of the Itoiz dam and to campaign for an alternative way of life on the site, to represent and defend the area affected by the dam and this area's interests before all official bodies at all levels, whether local, provincial, State or international, and to promote public awareness of the impact of the dam”.", "By a ministerial decree of 2 November 1990, the Ministry of Public Works adopted the Itoiz dam project.", "B. The administrative appeal to the Audiencia Nacional", "11. In 1991 the villages concerned by the dam and the applicant association brought an administrative appeal before the Audiencia Nacional against the ministerial decree of 2 November 1990. The appeal was based on several allegations of unlawfulness which, in their opinion, had tainted the procedure for informing the public about the proposed dam, the fact that the project had been adopted without the prior approval of the hydrological plans for each river basin or of the national hydrological plan and the lack of any public or social interest served by the project. They also claimed that the project breached the legislation on environmental protection, since no environmental impact study had been commissioned. Finally, the court's attention was drawn to the project's impact on the nature reserves and habitat within the relevant area in the light of the Council of Europe's recommendations on engineering works in the Pyrenees and the European Union's common agricultural policy.", "12. In a judgment of 29 September 1995, the Audiencia Nacional partly upheld the appeal, considering in particular that, according to the law, the planned dam should have been based on the national hydrological plan, which had not been drawn up when the project was approved. The court also accepted the request for precise designation of the protection zones around the nature reserves affected by the dam and for a breakdown of the quarry use that would be necessary for its construction.", "13. The applicant association applied for immediate enforcement of the judgment and, in particular, for suspension of construction work on the dam. By a decision of 24 January 1996, the Audiencia Nacional granted a suspension order but directed that the necessary measures be taken to ensure the completion of work already begun and for the maintenance and safety of the work already completed, subject to the payment of security by the applicant association.", "14. All the parties to the proceedings lodged súplica appeals against the decision of 24 January 1996. In the context of the interim enforcement of its judgment of 29 September 1995 and, in particular, with a view to maintaining the protection zones around the three nature reserves affected by the project, the Audiencia Nacional, by a decision of 6 March 1996, prohibited the filling of the reservoir and displacement of the population concerned.", "C. Enactment by the Autonomous Community of Navarre of Autonomous Community Law no. 9/1996", "15. On 17 June 1996 the parliament of the Autonomous Community of Navarre ( parlamento foral de Navarra ) passed Autonomous Community Law ( foral ) no. 9/1996 on natural sites in Navarre (“the Autonomous Community law of 1996). This law amended Autonomous Community Law no. 6/1987 of 10 April 1987, particularly with regard to the possibility of reclassifying the protection zones or carrying out activities within them for the purpose of introducing infrastructure that had been declared in the general or public interest. According to the applicants, this Law enabled construction work on the dam to continue, with the consequent deterioration of the protected natural site.", "In application of the Autonomous Community law of 1996, the Autonomous Community's government adopted Decree no. 307/1996 of 2 September 1996, which identified the peripheral protection zones for certain nature reserves and strict nature reserves in Navarre.", "D. Appeal on points of law by the State and the government of the Autonomous Community of Navarre against the Audiencia Nacional's judgment", "16. In the meantime, Counsel for the State and the government of the Autonomous Community of Navarre had appealed on points of law against the Audiencia Nacional's judgment of 29 September 1995. In a judgment of 14 July 1997, the Supreme Court definitively cancelled the dam project in so far as it concerned the 500 -metre protection zones around nature reserves RN 9, 10 and 11. As a result of the judgment, the size of the planned dam, and thus of the area to be flooded, was reduced, so that the village of Itoiz, where the applicants'immovable property was located, was saved from flooding.", "E. Proceedings to enforce the Supreme Court's judgment", "17. In application of the Supreme Court's judgment, by a decision of 4 September 1997, the Audiencia Nacional declared final the interim enforcement measures ordered on 6 March 1996 concerning the prohibition on filling the reservoir and other related work. Before ruling on the question of the possible suspension of construction work on a dyke, the Audiencia Nacional invited the parties to appear before it so that they could submit observations on the consequences of the new Autonomous Community law of 1996, particularly with regard to the protection zones around all the nature reserves provided for in that law, and on the impact of the maximum flood levels on the protection zones of the reserves to which the cancelled project had referred.", "18. The central State authorities and the Navarre Autonomous Community's government argued before the Audiencia Nacional that it had become legally impossible to enforce the Supreme Court's judgment of 14 July 1997, in so far as the Autonomous Community law of 1996 had removed protection - zone status from the area within the nature reserves that was due be flooded. Accordingly, taking that legislative amendment into account, it had become possible to carry out the public-works schemes planned within those protection zones.", "19. The applicant association contested the authorities'argument, claiming that the Autonomous Community law of 1996 was inapplicable in the instant case, since it had been enacted following the administrative decisions in the proceedings in issue and subsequent to the Audiencia Nacional's judgment and the two interim enforcement orders. In the alternative, the applicant association requested that certain provisions in the Autonomous Community law be referred to the Constitutional Court for a preliminary ruling on their constitutionality, particularly those authorising the removal of protection - zone status from the three nature reserves in the area to be flooded, which, in the applicant association's submission, would allow the work to be completed and make the reservoir cover the area specified in the original plans.", "F. Reference of a preliminary question to the Constitutional Court", "20. By a decision of 1 December 1997, the Audiencia Nacional asked the Constitutional Court to rule on the preliminary question submitted by the applicant association.", "By a decision of 21 May 1998, the Constitutional Court declared the application inadmissible on account of certain errors in its presentation which could nonetheless be corrected.", "21. In order to rectify the above-mentioned errors, the Audiencia Nacional summoned the parties on 28 May 1998 so that it could hear their submissions on certain aspects of the Autonomous Community law whose constitutionality had been challenged before the Constitutional Court, and on the constitutionality of section 18(3) (A. 1. ) and (B) of that law. The applicant association submitted its observations on 10 June 1998.", "By a decision of 17 June 1998, the Audiencia Nacional again asked the Constitutional Court to rule on the preliminary question as to constitutionality and extended the question to include a new point raised by the applicant association, namely section 18(3) (B) (B. 1. ) of the Autonomous Community law.", "22. By a decision of 21 July 1998, the Constitutional Court declared the issues raised in the preliminary question admissible. Under section 37 (2) of the Judicature Act, it gave notice of the questions to the Chamber of Deputies, the Senate, the government and parliament of Navarre and the Spanish government, and invited them to file their observations within fifteen days. The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General's observations were submitted on 29 September 1998. The Speaker of the Chamber of Deputies indicated that the Chamber would present no observations. The Speaker of the Senate asked that the Senate be considered a party to the proceedings and offered its assistance. On 1 March 2000 the Audiencia Nacional forwarded to the Constitutional Court the written pleadings submitted by the applicant association during the proceedings before it. These pleadings, dated 29 September 1997, 10 June 1998 and 28 February 2000, were formally included in the case file at the Constitutional Court.", "G. The Constitutional Court's judgment", "23. In a judgment of 14 March 2000, the Constitutional Court, sitting as a full court, held that the impugned provisions of the Autonomous Community law of 1996 were compatible with the Constitution. It observed at the outset that enforcement of the Supreme Court's judgment of 14 July 1997, delivered in accordance with Navarre Autonomous Community Law no. 6/1987, had become impossible since the entry into force of the Autonomous Community law of 1996, in that the cancelled project complied with the new law.", "24. Examining the purpose of the Autonomous Community law of 1996, the Constitutional Court held as follows:", "“... Its purpose is to establish a general system for environmental protection of the natural sites in the Autonomous Community of Navarre. Accordingly, this protection system [was] applicable ... to the nature reserves already identified in the previous Autonomous Community law, even though the essential difference between the legal rules established by those two laws lies in the arrangements regarding the peripheral protection zones.”", "25. The Constitutional Court held, firstly, that this was not to be seen as a legislative solution for the particular problem of the three peripheral zones around the three nature reserves affected by construction of the Itoiz dam and, secondly, that statements and parliamentary initiatives by certain politicians which, in the opinion of the Audiencia Nacional, demonstrated that the main aim of the Autonomous Community law of 1996 was to prevent execution of the Supreme Court's judgment, were immaterial in assessing whether there had been a violation of the principle of lawfulness. The Constitutional Court also ruled that, given the significance of the question raised by the Itoiz dam's construction, which could not simply be ignored, it was justifiable that the explanatory memorandum accompanying the Autonomous Community law of 1996 specifically mentioned the aim and means of environmental protection in the peripheral protection zones around the three above-mentioned nature reserves.", "26. As to the alleged infringement of the right to a fair hearing, in so far as the Autonomous Community law of 1996 now prevented execution of the Supreme Court's judgment partly cancelling the Itoiz dam project, the Constitutional Court considered that the fact that in the meantime a new law had been passed amending the legal system applicable to the peripheral protection zones and replacing the previous law on the basis of which the project had been declared partly void was not in itself incompatible with the right to execution of judicial decisions as enshrined in Article 24 of the Constitution.", "27. Referring to the case-law of the European Court of Human Rights and, in particular, to the judgments in Stran Greek Refineries and Stratis Andreadis v. Greece (9 December 1994, Series A no. 301-B) and Papageorgiou v. Greece (22 October 1997, Reports of Judgments and Decisions 1997-VI), the Constitutional Court examined whether the impossibility of executing the Supreme Court's judgment as a consequence of the enactment of the Autonomous Community law of 1996 was justified in view of the values and assets protected by the Constitution. Having held that environmental protection was enshrined in the Constitution, the Constitutional Court examined whether the prejudice arising from the failure to execute the judgment in issue was proportionate to the protected or disputed interests or was on the other hand purposeless, excessive or the cause of a clear imbalance between the interests at stake. It found that both the Supreme Court's judgment of 14 July 1997 and the new Autonomous Community law of 1996 were intended to guarantee the existence of a peripheral protection zone around the three nature reserves affected by the dam's construction. The Constitutional Court further noted that the system of peripheral protection zones introduced by this new law had not in itself been considered arbitrary in the Audiencia Nacional's decision; nor had the zones'new boundaries been held responsible for the serious deterioration of the environment. Accordingly, it held that the balance of general interests had been respected and that there was no clear lack of proportion between the conflicting interests. Consequently, the impugned provisions could not be held to be contrary to Article 24 § 1 of the Constitution.", "28. As to the argument that the new legal rules governing the peripheral protection zones around the nature reserves appeared in a law rather than in regulations, as had previously been the case, and that this deprived the applicants of the possibility of overseeing the administration's actions through an administrative appeal or enforcement proceedings, the Constitutional Court noted that there was no legal provision requiring that certain subjects be dealt with by regulations. It added that the new law did not amount to ad causam legislation, being general in form and in substance, and pointed out that laws could be challenged before the Constitutional Court through the remedy provided for in Article 163 of the Constitution.", "Accordingly, the Constitutional Court dismissed the application for a preliminary ruling. The judgment was published in the Official Gazette on 14 April 2000." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The Constitution", "29. The relevant provisions of the Constitution read as follows:", "Article 161 § 1", "“The Constitutional Court shall have jurisdiction for the whole of Spanish territory and is competent to hear:", "(a) appeals against alleged unconstitutionality of laws and regulations having the force of law ...;", "(b) individual appeals for protection [ recurso de amparo ] against violation of the rights and liberties referred to in Article 53 § 2 of the Constitution, in the circumstances and manner laid down by law;", "(c) disputes between the State and an Autonomous Community or between different Autonomous Communities over the scope of their powers.", "...", "Article 163", "“If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, it shall refer the issue to the Constitutional Court in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law.”", "Article 164", "“1. Judgments of the Constitutional Court shall be published in the State's Official Gazette together with any dissenting opinions. They shall be final with effect from the day after their publication and no appeal shall lie against them. Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone.", "2. Unless stated otherwise in the judgment, parts of the law not declared unconstitutional shall remain in force.”", "B. Institutional Law no. 2/1979 on the Constitutional Court – Chapter III, “On questions of constitutionality referred by judges and courts”", "30. The relevant provisions of this law read as follows:", "Article 35", "“1. When judges or courts, of their own motion or at the request of a party, consider that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, they shall refer the matter to the Constitutional Court, in accordance with the provisions of the present Law.", "2. The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment. They must specify which law or provision having the status of law is alleged to be unconstitutional and which Article of the Constitution is considered to have been breached. They must also state the precise reasons why the outcome of the proceedings depends on the validity of the contested provision. Before taking a final decision on whether to refer an issue to the Constitutional Court, the judge or court shall first hear any representations the parties and a representative of State Counsel's Office may wish to make regarding the relevance of the issue within a ten-day non-extendable time-limit that shall apply to each of them. The judge shall give his or her decision within three days thereafter, no further action being required. No appeal shall lie against that decision. However, the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment has become final.”", "Article 36", "“A judge or court shall refer constitutionality issues to the Constitutional Court by sending a certified copy of the main case file and any representations made under the preceding Article.”", "Article 37", "“1. On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph 2 of this Article. However, it may in a reasoned decision declare the question referred inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the question referred is manifestly ill-founded.", "2. The Constitutional Court shall inform the Chamber of Deputies and the Senate (through their respective Speakers), the Attorney General and the Government (through the Ministry of Justice) of the question referred. If it concerns a law or a provision having the status of law adopted by an Autonomous Community, the legislative and executive authorities of that Community shall also be informed. Each of these bodies shall be entitled to appear before the Constitutional Court and to make representations on the constitutionality issue within a non-extendable fifteen-day time-limit that shall apply to each of them. Once that period has expired, the Constitutional Court shall give judgment within fifteen days, unless it gives a reasoned decision explaining why it considers a longer period – not exceeding thirty days – to be necessary.”", "C. Autonomous Community Law no. 9/1996 of 17 June 1996 on natural sites in Navarre (“the Autonomous Community law of 1996”)", "31. The explanatory memorandum to the Autonomous Community law of 1996 states that the text has two objectives: first of all, it establishes a legal system specific to Navarre in order to safeguard, preserve and improve those parts of its territory which contain natural assets worthy of protection in accordance with Spanish legislation and European Union directives on environmental protection; secondly, the law is intended to harmonise the legislation on natural sites enacted by the Autonomous Community of Navarre.", "In particular, the law lists the nature reserves and natural sites in Navarre which are protected by law and establishes their boundaries. It also sets out, for each type of protected site, the types of activity and use which are authorised or prohibited. Section 18 reads as follows:", "“Peripheral protection areas", "1. Through an autonomous law, the parliament of Navarre may identify the boundaries of ... peripheral protection zones around the Strict Nature Reserves and Nature Reserves, which may be discontinuous and shall be intended to avoid external impact on the environment or landscape.", "...", "3. The regulations governing activities and land use within the peripheral protection zones of the Strict Nature Reserves, Nature Reserves and Nature Parks shall be as follows:", "(A) Non-construction activities", "(A.1.) The following may be authorised:", "...", "– Activities related to the creation of infrastructure which is in the public or general interest.", "...", "(B.) Construction activities", "(B.1.) The following may be authorised:", "...", "– Infrastructure declared to be in the public or general interest.", "...”", "THE LAW", "32. Relying on Article 6 § 1 of the Convention, the applicants alleged that, in the judicial proceedings brought by them to halt construction of the Itoiz dam, they had not had a fair hearing in that they had been prevented from taking part in the proceedings concerning the preliminary ruling on the constitutionality of the Autonomous Community law of 1996, while Counsel for the State and State Counsel's Office had been able to submit their observations to the Constitutional Court.", "They also complained that the enactment of the Autonomous Community law of 1996 had been intended to prevent the execution of a Supreme Court judgment that had become final. The law's enactment had infringed their right to a fair hearing as guaranteed by Article 6 § 1 of the Convention and, with regard to the first five applicants, their right to respect for their private and family lives and their homes, protected by Article 8 of the Convention, as well as their right to the peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1.", "I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS", "A. As to the applicants'lack of “victim” status and the non-exhaustion of domestic remedies", "33. The Government pointed out that the first five applicants, who had applied to the Court, had not participated in the domestic proceedings under review in the present application. In addition, at no point during the contested proceedings were the domestic courts appraised of their existence or that of their properties. In that connection, the Government emphasised that the applicants'explanation of why they had not taken part in the domestic proceedings – namely that this would have entailed long and costly proceedings - was not serious. As to the applicants'properties, they noted that expropriation proceedings in respect of those properties were ongoing and that the applicants were in a position to defend their “civil rights and obligations” in them without this raising any problem.", "34. The applicants emphasised the clear consequences of the contested proceedings on their civil rights. Firstly, they pointed out that they all lived in Itoiz, where their immovable property was situated. Construction of the dam would result in flooding of this area and, consequently, of their homes and other assets. In addition, they submitted that, as members of the Coordinadora de Itoiz association since its formation in 1988, they had taken part in the proceedings with that association as their intermediary. They stressed the indisputable direct link between them and the damage that would be sustained from the dam's construction, and submitted that the remedy used was the only one which, if successful, would have allowed for the definitive protection of their civil rights and interests. In this connection, they stressed that they would have been acting unreasonably had each of them brought a separate individual appeal against the proposed dam and thus entered long and costly proceedings with the same final outcome as that achieved by the association. Moreover, it was clear that, from the outset, they had entrusted the association with the defence of their civil rights and interests. Indeed, this was the logical result of one of the association's stated aims, namely the “defence of an alternative way of life on the site”. In conclusion, they contended that they could claim to be victims of a violation within the meaning of Article 34 of the Convention.", "35. The Court points out that, in order to rely on Article 34 of the Convention, two conditions must be met: an applicant must fall into one of the categories of petitioners mentioned in Article 34, and he or she must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court's established case–law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation (see, among other authorities, Tauira and Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83 -B, p. 112; Association des amis de Saint-Raphaël et de Fréjus and Others v. France, no. 38192/97, Commission decision of 1 July 1998, DR 94 -B, p. 124; Comité des médecins à diplômes étrangers v. France and Others v. France (dec.), nos. 39527/98 and 39531/98, 30 March 1999).", "1. As to whether the applicant association was a “victim”", "36. In so far as the applicant association alleges a violation of Article 6 § 1 of the Convention, the Court notes that the association was a party to the proceedings brought by it before the domestic courts to defend its members'interests. Accordingly, it considers that the applicant association may be considered a victim, within the meaning of Article 34, of the alleged shortcomings under the provision relied upon (see Association for the Protection of Car Purchasers and Others v. Romania (dec.), no. 34746/97, 10 July 2001).", "2. As to the “victim” status of the first five applicants and the exhaustion of domestic remedies", "37. The Court notes at the outset that the question of victim status, for the purposes of Article 34 of the Convention, is, in the instant case, closely linked to the requirement of exhaustion of domestic remedies contained in Article 35 § 1. As regards the last point, it reiterates that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34). The Court has further recognised that the rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see, mutatis mutandis, the following judgments: Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, p. 1211, § 69; Aksoy v. Turkey, 18 December 1996, Reports 1996-VI, p. 2276, §§ 53-54; and Baumann v. France, no. 33592/96, § 40, 22 May 2001 ).", "38. In the instant case, the Court observes that the applicant association was established for the specific purpose of defending its members'interests against the consequences of the dam's construction on their environment and homes. In addition, the proceedings before the domestic courts, through the intermediary of the association, concerned not only a dispute over the lawfulness of the ministerial decree authorising the relevant work in the light of the applicable legislation on the construction of dams, but also emphasised the project's impact on the property rights and lifestyles of the association's members due to the change in their place of residence. In its appeals, the applicant association, acting on behalf of its members, repeatedly emphasised that the dam's construction would lead to the flooding of several small villages, including the hamlet of Itoiz, where the applicants had their family homes. From this perspective, it is undeniable that the public-works project, with all that it entailed (expropriation of property, population displacement) had direct and far-reaching consequences both on the applicants'property rights and on their families'lifestyles (see, mutatis mutandis, Association des amis de Saint-Raphaël et de Fréjus and Others, cited above, p. 131). Admittedly, the applicants were not parties to the impugned proceedings in their own name, but through the intermediary of the association which they had set up with a view to defending their interests. However, like the other provisions of the Convention, the term “victim” in Article 34 must also be interpreted in an evolutive manner in the light of conditions in contemporary society. And indeed, in modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members'interests is recognised by the legislation of most European countries. That is precisely the situation that obtained in the present case. The Court cannot disregard that fact when interpreting the concept of “victim”. Any other, excessively formalistic, interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory.", "39. Having regard to the particular circumstances of the case, and especially the fact that the applicant association was set up for the specific purpose of defending its members'interests before the courts and that those members were directly concerned by the dam project, the Court considers that the first five applicants can claim to be victims, within the meaning of Article 34, of the alleged violations of the Convention, and that they have exhausted domestic remedies with regard to the complaints under Article 6 § 1 of the Convention.", "B. Applicability of Article 6 § 1 of the Convention", "1. Arguments before the Court", "40. According to the Government, none of the proceedings brought by the applicant association, whether before the Audiencia Nacional, the Supreme Court or the Constitutional Court, concerned “civil rights and obligations” within the meaning of Article 6 § 1. The action brought by the applicant association was intended to uphold the law and defend collective interests such as environmental protection. At no time did the dispute centre on the defence of private economic rights. This was perfectly clear from the memorials filed by the association in support of its various appeals, and was clearly expressed in the various decisions handed down by the domestic courts. Ultimately, the problem of non-enforcement of the Supreme Court's judgment of 14 July 1997 did not affect any private right.", "41. Furthermore, the Government considered that the instant case could not be compared to Ruiz-Mateos v. Spain (judgment of 23 June 1993, Series A no. 262). While the Rumasa expropriation law had been a specific law which primarily affected the Ruiz-Mateos family, the Autonomous Community law of 1996 was a general purpose law which affected many people, that is,. not only the applicant association and its members, but the tens of thousands of people who would benefit from construction of the Itoiz dam. Moreover, the general scope of the law had been expressly recognised by both the Audiencia Nacional and the Constitutional Court. While the constitutional issue in Ruiz-Mateos undoubtedly concerned the applicants'economic rights, the issue in the instant case did not concern civil rights and obligations, but the lawfulness of the proposed dam. It followed that Article 6 § 1 was not applicable.", "42. The applicants rejected the Government's argument. It was undeniable that the applicant association had acted to defend its members'individual and private rights and interests; at the same time, it was clear that the Supreme Court's judgment of 14 July 1997 concerned the protection and definitive safeguarding of their personal rights and interests as members of the association. In their opinion, the civil rights of the association's members had been at stake from the outset of the proceedings, in that their possessions and lifestyles were likely to be decisively affected by the proposed dam. Thus, in the memorial filed by the association against the ministerial decree of 2 November 1990, it was clearly stated that construction of the dam would entail the expropriation of a whole series of farming and other properties as well as displacement of the population concerned. Those consequences, in terms of the assets and individuals affected by the dam's construction, were pointed out on numerous occasions by the applicant association in the course of the various proceedings. In conclusion, contrary to the Government's submissions, “civil” rights within the meaning of Article 6 § 1 had unquestionably been in issue before the domestic courts.", "2. The Court's assessment", "43. The Court reiterates that for Article 6 § 1 to be applicable in its “civil” limb there must be a dispute ( “ contestation ” ) over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question: mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see, for example, the following judgments: Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, Series A no. 43, pp. 21-22, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, pp. 45-46, § 56; Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Balmer-Schafroth v. Switzerland, 26 August 1997, Reports 1997-IV, p. 1357, § 32; and Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV; see also Syndicat des médecins exerçant en établissement hospitalier privé d'Alsace and Others v. France (dec.), no. 44051/98, 31 August 2000).", "44. In the instant case, while it is common ground that a dispute existed over a right recognised under domestic law, there was disagreement as to its subject matter. According to the Government, at no point did the dispute focus on the association's economic or private rights, but instead on upholding the law and collective rights, so that no “civil” right was at stake. The applicant association, on the other hand, claimed to have acted to defend the individual and private rights and interests of its members.", "45. The Court notes that, in addition to defence of the public interest, the proceedings before the Audiencia Nacional and subsequently before the Supreme Court were intended to defend certain specific interests of the association's members, namely their lifestyle and properties in the valley that was due to be flooded. As to the proceedings before the Constitutional Court concerning the request for a preliminary ruling on constitutionality, the applicants emphasise that this was the only method of challenging the Autonomous Community law of 1996, in that only a finding of unconstitutionality could have had the result of protecting both the environment and their homes and other immovable property.", "46. Admittedly, the aspect of the dispute relating to defence of the public interest did not concern a civil right which the first five applicants could have claimed on their own behalf. However, that was not true with regard to the second aspect, namely the repercussions of the dam's construction on their lifestyles and properties. In its appeals, the applicant association complained of a direct and specific threat hanging over its members'personal assets and lifestyles. Without a doubt, this aspect of the appeals had an “economic” and civil dimension, and was based on an alleged violation of rights which were also economic (see Procola v. Luxembourg, judgment of 28 September 1995, Series A no. 326, pp. 14-15, § 38).", "47. While the proceedings before the Constitutional Court ostensibly bore the hallmark of public-law proceedings, they were nonetheless decisive for the final outcome of the proceedings brought by the applicants in the ordinary courts to have the dam project set aside. In the instant case, the administrative and constitutional proceedings even appeared so interrelated that to have dealt with them separately would have been artificial and would have considerably weakened the protection afforded in respect of the applicants'rights. By raising the question of the Autonomous Community law's constitutionality, the applicants used the single, albeit indirect, means available to them for complaining of interference with their property and lifestyles (see Ruiz-Mateos, cited above, p. 24, § 59). The Court therefore finds that the proceedings as a whole may be considered to concern the civil rights of the first five applicants as members of the association.", "48. Accordingly, Article 6 § 1 of the Convention applied to the contested proceedings.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "49. According to the applicants, the proceedings before the Constitutional Court to examine the question of constitutionality referred by the Audiencia Nacional did not respect the principle of equality of arms, an inherent part of the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention.", "50. The applicants argued in this connection that they had been prevented from taking part in the proceedings concerning the preliminary ruling on constitutionality, while Counsel for the State and State Counsel's Office had been able to submit their observations to the Constitutional Court. As a result, they had been unable to assert their interests before that court with regard to the balance to be struck between the conflicting interests.", "51. The applicants also submitted that Autonomous Community Law no. 9/1996 had been enacted in order to prevent execution of the Supreme Court's judgment, which had become final and enforceable. In their opinion, this amounted to interference by the legislature in the outcome of a dispute, contrary to Article 6 § 1, the relevant part of which states:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... ”", "52. The Court will examine in turn the complaint based on the alleged violation of the principle of equality of arms, then that concerning the legislature's alleged interference in the outcome of the dispute.", "A. Alleged violation of the principle of equality of arms", "1. The parties'submissions", "(a) The applicants", "53. The applicants submitted, firstly, that a number of the provisions of the Autonomous Community law of 1996 had been drafted for the sole and exclusive purpose of circumventing the grounds for cancellation of the dam project and, consequently, of rendering unenforceable the Supreme Court judgment which, in this respect, had become final. It was not a general law but, on the contrary, a new regulation. In their opinion, the only method of challenging the Autonomous Community law of 1996 was to apply to the Constitutional Court for a preliminary ruling. A finding of unconstitutionality would have had the effect of protecting both the environment and their civil right to peaceful enjoyment of their homes, dwelling houses and other immovable property. They had been unable to defend their point of view and counter the arguments put forward by the opposing parties before either the Audiencia Nacional or the Constitutional Court, despite the fact that it was the applicant association itself which had requested that a preliminary ruling on constitutionality be sought. Further, the Constitutional Court's judgment took no account of any of their arguments. In this regard, the applicants stressed that, had they had an opportunity to take part in the proceedings before the Constitutional Court, they would have been able to repeat and develop their arguments and the grounds that they considered relevant to their case. The applicants submitted that, taken together, this had resulted in a violation of Article 6 § 1 of the Convention.", "(b) The Government", "54. The Government observed that, while in Ruiz-Mateos the case centred on an expropriation law impinging primarily on the Ruiz-Mateos family, in the instant case the Autonomous Community law of 1996 was of general application, affecting not only the applicant association and its members, but also many other people who would benefit from construction of the Itoiz dam, as expressly stated by the Audiencia Nacional and the Constitutional Court.", "2. The Court's assessment", "55. The Court accepts the Government's submission that the Autonomous Community law of 1996 differed from the Rumasa expropriation law in terms of the number of people affected. Nevertheless, the applicants were among the restricted circle of persons most directly affected by the Autonomous Community law of 1996's endorsement of the dam project, which they had challenged in the ordinary courts and with regard to which judgments in their favour had been given. This particular interest with regard to the Autonomous Community law of 1996 was confirmed by the Constitutional Court's decision on the admissibility of their request for a preliminary ruling on the constitutionality of certain provisions of that law.", "56. The Court reiterates that the principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention. It requires a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent or opponents (see, inter alia, the following judgments: Ankerl v. Switzerlan, 23 October 1996, Reports 1996-V, pp. 1567-68, § 38; Nideröst-Huber v. Switzerland, 18 February 1997, Reports 1997-I, pp. 107-08, § 23; and Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI).", "57. The Court has already considered, in Ruiz-Mateos, the question of respect for certain guarantees arising from the concept of a fair hearing in the context of examination of a question of constitutionality by the Spanish Constitutional Court. In that case, the Court found that there had been a violation of Article 6 § 1 with regard to the fairness of the proceedings before the Constitutional Court. The decisive factor in the Court's finding of a violation lay in the fact that Counsel for the State had had advance knowledge of the Ruiz-Mateos family's arguments and was consequently able to comment on them in the last instance before the Constitutional Court, whilst the applicants had not had a similar opportunity to reply to his remarks ( loc. cit., p. 26, §§ 65 and 67).", "58. In the instant case, the situation is somewhat different. In the first place, while the expropriation law in issue in Ruiz-Mateos could be considered as ad personam legislation, in the present case the Autonomous Community law of 1996 was of general application and did not concern the applicants alone.", "59. In addition, having declared the question of constitutionality admissible on 21 July 1998, the Constitutional Court gave notice of the problems raised in the application for a preliminary ruling to the Chamber of Deputies, the Senate, the government and parliament of the Autonomous Community of Navarre, and the State government, so that those bodies could file their observations within the same fifteen-day period (Article 37 § 2 of the Institutional Law on the Constitutional Court). The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of the Autonomous Community of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General submitted his on 29 September 1998.", "On 1 March 2000 the registrar of the First Section of the Audiencia Nacional forwarded to the Constitutional Court the documents, dated 29 September 1997, 10 June 1998 and 28 February 2000, submitted by the Coordinadora de Itoiz association during the proceedings before it; these were formally joined to the case file at the Constitutional Court.", "60. The Court notes that proceedings on the constitutionality of a law do not provide for either an exchange of memorials or for a public hearing. Thus, even supposing that the applicants had formally been parties to the procedure, they would not have received the memorials submitted by the other participants. Admittedly, it cannot be ruled out that some form of consultation took place between those State authorities which submitted their observations to the Constitutional Court. However, a major difference between the instant case and Ruiz-Mateos lies in the fact that all the memorials filed by the applicants through the applicant association in support of their arguments as to the unconstitutionality of the Autonomous Community law of 1996 (memorials dating from September 1997 to January 2000) were forwarded by the Audiencia Nacional to the Constitutional Court, which formally joined them to the case file before ruling on the question of constitutionality. Another distinguishing feature between the two cases is that, in the earlier case, the Ruiz-Mateos family asked the Constitutional Court for leave to take part in the proceedings, a request that was dismissed by that court (see Ruiz- Mateos, p. 13, §§ 17 - 18). In the instant case there is nothing in the case file to suggest that the applicants applied to the Constitutional Court at any time for leave to take part in the proceedings, although they could have relied on the Court's previous case-law in Ruiz-Mateos to support such an application. Finally, the Court observes that the Constitutional Court replied at length in its judgment to the arguments submitted by the applicants throughout the entire proceedings.", "61. In conclusion, having regard to the special features of the procedure for a preliminary ruling on constitutionality, there has not been an infringement of the very essence of the principle of equality of arms as guaranteed by Article 6 § 1 of the Convention.", "B. Alleged interference by the legislature in the outcome of the dispute", "62. According to the applicants, the aim of the enactment of the Autonomous Community law of 1996 was to prevent the execution of the Supreme Court's judgment, which had become final and enforceable. In their opinion, this amounted to an interference by the legislature in the outcome of the dispute, contrary to the principle of a fair hearing guaranteed by Article 6 § 1 of the Convention.", "63. According to the Government, the impugned law was adopted in the public interest and by no means for the purpose of influencing the judicial determination of the case.", "64. The Court has already had occasion to rule on allegations of intervention by the State, through the legislature, in order to influence the outcome of a case to which it was party in which a finding had already been made against it in the examination on the merits. This was the situation that obtained in Stran Greek Refineries and Stratis Andreadis ( cited above ), Papageorgiou ( cited above ), National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society (“ Building Societies ”) v. the United Kingdom (judgment of 23 October 1997, Reports 1997-VII), and Zielinski and Pradal and Gonzalez and Others v. France ([GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999-VII). On this subject, the Court reaffirms that, while in principle the legislature is not precluded from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute save on compelling grounds of the general interest (see the following judgments cited above: Stran Greek Refineries and Stratis Andreadis, p. 82, § 49; Papageorgiou, p. 2288, § 37; Building Societies, p. 2363, § 112; and Zielinski and Pradal and Gonzalez and Others, § 57 ).", "65. In Stran Greek Refineries and Stratis Andreadis, Papageorgiou and Zielinski and Pradal and Gonzalez and Others, the Court found that there had been a violation of Article 6 § 1 of the Convention.", "66. In Stran Greek Refineries and Stratis Andreadis, two essential features led the Court to conclude that there had been an infringement of the right to a fair hearing: firstly, the Greek legislature's intervention in the case had taken place at a time when judicial proceedings in which the State was a party were pending; secondly, the fact that the Court of Cassation had decided to adjourn the hearing on the ground that a draft law concerning the case was before Parliament ( loc. cit., pp. 81-82, § 47).", "67. In Papageorgiou, the Court's criticism of the interference was prompted by the following three considerations: firstly, the disputed legislative provision, namely section 26 of Law no. 2020/1992, provided that any claims for repayment of contributions previously paid by the applicants to the Manpower Employment Organisation were extinguished and that any proceedings concerning such claims pending in any court were to be struck out; secondly, section 26 was contained in a statute whose title bore no relation to that provision, a practice prohibited by Article 74 § 5 of the Greek Constitution; finally, the disputed provision had been enacted after the appeal had been lodged by the Public Electricity Company, which employed the applicants, against the judgment of the Athens Court of First Instance, sitting as an appellate court, and prior to the hearing before the Court of Cassation.", "In those circumstances, the Court concluded that the enactment of section 26 at such a crucial point in the proceedings before the Court of Cassation resolved the substantive issues for practical purposes and made carrying on with the litigation pointless (see Papageorgiou, p. 2289, § 38).", "68. In Zielinski and Pradal and Gonzalez and Others, the Court held that the passing of legislation with retrospective effect had had the effect of endorsing the State's position in the proceedings that had been brought against it and which were still pending in the ordinary courts ( loc. cit., § 58).", "69. However, there are significant differences between the present case and those cases.", "70. A common feature of the cases previously examined by the Court lies in the fact that the State's intervention through legislative acts was intended either to influence the outcome of pending judicial proceedings, to prevent proceedings being opened, or to render void final and enforceable decisions which recognised personal rights to receive payment.", "In the instant case, the dispute between the applicants and the Autonomous Community of Navarre concerned regional development plans, a sphere in which an amendment or change to legislation following a judicial decision is generally accepted and practised. Whilst creditors may, in general, avail themselves of firm and intangible rights, this is not the case with regard to issues of urban or regional planning, a sphere concerning rights of a different nature which are essentially evolutive. Urban and regional planning policies are, par excellence, spheres in which the State intervenes, particularly through control of property in the general or public interest. In such circumstances, where the community's general interest is pre-eminent, the Court takes the view that the State's margin of appreciation is greater than when exclusively civil rights are at stake (see, mutatis mutandis, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46; Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 29, § 55; and Chapman v. the United Kingdom [GC], no. 27238/95, § 104, ECHR 2001-I ).", "71. Nevertheless, the effective protection of a party to proceedings and the restoration of legality presuppose an obligation on the administrative authorities'part to comply with the judgments of the domestic courts. The Court points out in this connection that the administrative authorities form one element of a State subject to the rule of law and their interests accordingly coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees enjoyed under Article 6 by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Antonetto v. Italy, no. 15918/89, § 28, 20 July 2000). In the instant case, the Court would emphasise that the Audiencia Nacional's decisions in favour of the applicants'arguments did not remain inoperative; on the contrary, they were always complied with by the administrative authorities. This was so with regard to the suspension of construction work ordered by the Audiencia Nacional in its decisions of 24 January and 6 March 1996 (see paragraphs 13- 14 above). At every point, the administrative authorities complied with the judicial decisions given against them.", "72. The Court notes that the situation complained of by the applicants cannot be considered similar to that in Stran Greek Refineries and Stratis Andreadis, where the State had intervened in a decisive manner to sway in its favour the outcome of proceedings to which it was a party. In the instant case, the enactment of the Autonomous Community law of 1996 was certainly not intended to remove jurisdiction from those Spanish courts called upon to examine the lawfulness of the dam project. Admittedly, the explanatory memorandum referred specifically to the peripheral protection zones around the nature reserves affected by the dam and to the law's objective. Nevertheless, the disputed law concerned all of Navarre's protected nature reserves and natural sites, and not only the area affected by construction of the dam. Its general application is not open to doubt. In addition, the parliament of Navarre did not enact legislation with retrospective effect, as was proved by the fact that, notwithstanding the enactment of the Autonomous Community law on 17 June 1996, the Supreme Court, a few weeks after adoption of the law, delivered a judgment which partly but definitively cancelled the original dam project. Whilst it is undeniable that the parliament of Navarre's enactment of the law in question was ultimately unfavourable for the arguments put forward by the applicants, it cannot be said that the text was approved for the purpose of circumventing the principle of the rule of law. In any event, once the Autonomous Community law had been enacted, the applicants'request for a preliminary ruling by the Constitutional Court on the constitutionality of some of its provisions was granted, and that court ruled on the merits of their complaints. Before the Constitutional Court, the applicants'arguments were examined on the same footing as those submitted by the government and the parliament of Navarre. In conclusion, the dispute between the applicants and the State was examined by the Spanish courts in compliance with the principle of a fair trial as guaranteed by Article 6 § 1.", "73. For the above reasons, the Court concludes that the interference by the legislature in the outcome of the dispute, as alleged by the applicants, did not make the proceedings unfair. There has accordingly been no breach of Article 6 § 1 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1", "74. The applicants alleged that the enactment of the Autonomous Community law of 1996 represented a violation of their right to respect for private and family life and their homes under Article 8 of the Convention, as well as of the right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1.", "75. The Court notes that the applicants'complaints are substantially the same as those submitted under Article 6 § 1 and examined above. Accordingly, it considers that it is not necessary to examine them separately under the other provisions relied on." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants own property close to Umeå, in the vicinity of a Natura 2000 area, the European network of nature protection areas established under the EU Habitats Directive of 1992 (see further below at paragraph 33 ). Most of them live there (permanently or on a part-time basis).", "A. Proceedings on permissibility of railway project", "6. On 15 October 1999, the National Rail Administration ( Banverket; hereinafter “ the NRA”) applied to the Government for permission, under the Environmental Code ( Miljöbalken ), to construct a 10 km long railway section in a river area in the north of Sweden (constituting the final section of a railway called “Botniabanan”, the total length of which is 190 km ). The NRA presented some alternative railway stretches, all located in a specified “corridor”, but recommended the one named “alternative east”. The proposed railway construction concerned certain areas which were or were going to be part of Natura 2000.", "7. It appears that six of the present applicants own houses or land within the mentioned “corridor”: Ms Carina Granberg, Ms Agneta Holmström, Mr Gustaf Härestål, Mr Björn Höjer, Ms Inga-Britt Höjer, and Mr Christer Skoog. Ownership of Mr Skoog ’ s property was transferred to Ms Granberg on 7 January 2011. The properties of the other twelve applicants – houses and land in their ownership or owned houses located on non-freehold sites – are situated outside the “corridor”. The distance from their properties to the “corridor” or the specific stretch of the railway fixed in later proceedings vary; the houses appear to be situated 300 – 2500 metres away whereas the closest piece of land is located about 50 metres from the “corridor”.", "8. On 12 June 2003 the Government, after having heard the European Commission, granted the application and allowed the construction of the railway in the proposed “corridor” under the condition, inter alia, that the NRA adopt a railway plan before 1 July 2009 and also a specific plan for the realisation of the necessary environmental compensation measures in the Natura 2000 areas. The plan on compensation measures had to be presented to the Government before the railway plan was adopted. The Government stated, inter alia, that the activity could be permitted, despite its harmful effect on the environment in a Natura 2000 area, if there were no alternative solutions and the railway had to be constructed for reasons of public interest.", "9. A number of individual property owners, including three of the applicants in the present case – Ms Bring, Mr Bäcklund and Mr Osterman – petitioned the Supreme Administrative Court ( Regeringsrätten ) for a judicial review of the case and requested that the Government ’ s decision be quashed. The property owners claimed that the decision contradicted Swedish law as well as applicable European Union law, including the Habitats Directive. It was argued, firstly, that the decision contravened the general rule in the Environmental Code on the site to be chosen for activities and installations that may affect human health or the environment. This aspect allegedly had a direct and clear bearing on their civil rights. Secondly, they asserted that the Government ’ s decision violated Swedish regulations on nature conservation by failing to consider relevant alternative sites for the railway.", "10. On 1 December 2004 the Supreme Administrative Court dismissed the petitions for a judicial review because it was not possible to determine who should be considered an interested party at that stage of the railway planning. The exact route of the railway would not be established until the railway plan had been drawn up. Until then, it could not be assessed with any certainty who would be affected to the extent that they were entitled to bring an action or what account should be taken of their interests. Further stating that the parties affected to a sufficient extent by the future railway would be able to obtain a judicial review of the later decision to adopt the railway plan, the court refused the petitioners locus standi.", "11. One judge dissented, finding that the issue of locus standi in respect of each petitioner should be further investigated by the court in order to ensure that the individual interests were taken into account, having regard to the binding character of the Government ’ s decision in the later railway planning proceedings.", "B. Proceedings on permits for construction of railway and bridges", "12. In 2003 and 2004 the NRA applied to the County Administrative Board ( länsstyrelsen ) in the County of Västerbotten for a permit to construct the railway in the specific Natura 2000 area and to the Environmental Court ( miljödomstolen ) in Umeå for permits to build two bridges.", "13. The County Administrative Board granted a construction permit for the railway by a decision of 14 October 2004, which was subsequently appealed against to the Environmental Court.", "14. The Environmental Court decided to examine the cases jointly. By judgments of 24 May 2005 and 13 June 2005, considering itself bound by the Government ’ s decision of 12 June 2003 on the permissibility of the railway project, the court decided to grant all the permits requested by the NRA.", "15. On 15 June 2006 the Environmental Court of Appeal ( Miljööverdomstolen ) in Stockholm quashed the Environmental Court ’ s judgments and referred the cases back to the latter instance. The appellate court found that the Government ’ s decision had not contained a detailed examination of measures necessary to compensate for environmental harm caused by the railway project, and that these issues had to be settled as part of the determination of the construction permit requests.", "16. On 26 April 2007 the Environmental Court decided anew to grant the permits requested by the NRA. The court considered itself bound by the Government ’ s decision as to the permissibility of the railway project and thus limited its examination to the environmental compensation measures, as indicated by the decision of the Environmental Court of Appeal.", "17. Two applicants – Ms Granberg and Mr Skoog – appealed against the Environmental Court ’ s judgment in so far as it concerned the permit for the railway construction. All applicants except Mr Osterman appealed against the part which concerned the permit to construct the bridges.", "18. By a judgment of 6 December 2007 the Environmental Court of Appeal affirmed the binding nature of the Government ’ s permissibility decision and approved the construction of the railway and the bridges with certain added conditions.", "19. On 9 May 2008 the Supreme Court ( Högsta domstolen ) refused leave to appeal and, thus, the Environmental Court of Appeal ’ s judgment became final.", "C. Proceedings on adoption of railway plan", "20. On 2 1 June 2005 the NRA adopted a railway plan for the area in question.", "21. Twelve applicants – all but Ms Holmström, Mr Härestål, Mr Höjer, Ms Höjer, Mr Sjöstedt and Mr Stenlund – appealed to the Government against the railway plan. They essentially complained of the specific stretch of the railway, invoking, inter alia, nuisance such as noise and vibrations affecting the enjoyment of their property.", "22. By a decision of 28 June 2007 the Government referred to its decision on permissibility of 12 June 2003. It found that the specific stretch chosen in the railway plan was situated within the permitted “corridor” and thus rejected the appeals.", "23. All of the applicants and several other petitioners turned to the Supreme Administrative Court and requested that it, by way of a judicial review, order the quashing of the Government ’ s decision. They claimed, inter alia, that, although their civil rights were affected by the planned railway, they had not had these rights considered and determined by a court, in violation of the Convention. As to the chosen location of the railway, they also asserted that the Government ’ s decision was contrary to provisions of the Environmental Code and the EU Habitats Directive.", "24. On 10 December 2008 the Supreme Administrative Court, after having held a hearing in the case, rejected the petition, finding that the railway plan was in line with the Government ’ s decision of 12 June 2003 on the permissibility of the railway project and that the proceedings for the adoption of the plan did not demonstrate any failings. The court considered that the question of permissibility of a railway project was within the power of the Government, which had to take into account public interests such as environmental, industrial, economic and regional policy. The Government ’ s permissibility decision was binding for the subsequent proceedings in that courts and other decision -making bodies could not examine issues that had been determined by that decision. Thus, in the proceedings concerning the construction permits requested by the NRA, the various instances could decide on conditions and other details but not on the general permissibility as defined in the Government ’ s decision. Similarly, in the third stage of the decision process – the adoption of the railway plan – it was for the authorities and courts to decide only on the precise location of the railway, within the area designated by the Government ’ s decision. The Government had not been obliged to review its decision of 12 June 2003 on the permissibility of the railway project and the designation of the “corridor” in which the railway could be located. These issues could not be examined in the third stage of the decision process. The Supreme Administrative Court further stated that, if private interests were affected by the location of a railway project, judicial review could be obtained by petitioning the court in proceedings against the Government ’ s permissibility decision. The fact that the court, on 1 December 2004, had concluded that no individual petitioner could be considered to have locus standi in relation to the permissibility decision did not compel it to include in its current examination of the adoption of the railway plan the issues of permissibility of the project or its general location.", "25. One judge dissented, considering that the Supreme Administrative Court ’ s judgment contravened its decision of 1 December 2004. She noted, inter alia, that the adoption of a railway plan – as opposed to the construction permits – had direct consequences for the individual as it entailed a right for the railway company, under certain conditions, to expropriate land. Consequently, the court, in the instant case, should have examined all the objections presented by the appellants, including the claim that there were better alternative locations for the railway. According to the dissenting judge, a full judicial review had also been foreseen by the court in its earlier decision.", "D. Compensation and others measures taken", "26. It appears from the parties ’ observations in the case that at least ten of the applicants (including seven with houses or land situated outside the “corridor”) have received some form of compensation as a consequence of the railway construction, either for land requisitioned or for reduced residential value or market value. In one case, the change to noise-reducing windows was partly paid by the NRA. It is not clear whether the other applicants requested compensation. In the vicinity of some properties, whose owners have not received compensation, noise barriers have been erected in order to keep the noise from the railway below the applicable target values." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Planning of railway construction", "27. The planning of railway construction is regulated in the Railway Construction Act ( Lagen om byggande av järnväg, 1995:1649). In addition, during planning and review of a railway construction, the general provisions in Chapter 2 -4 of the Environmental Code ( Miljöbalken ) apply, stipulating, inter alia, that the site least intrusive on the interests of human health and the environment should be chosen for activities and installations.", "28. The planning process of a railway construction is divided into three phases, in which the work is intended to gradually develop from outline studies to detailed plans and in which the outcome of one phase is intended to serve as a starting point for the next phase. Consideration is to be given to private interests as well as public interests such as the protection of the environment. The process begins with a preliminary study to identify and examine possible options to find out which alternatives warrant further study. The enterprise intending to build the railway is required by the regulations in the Environmental Code to consult relevant county administration boards, municipalities and non-profit organisations whose purpose is to safeguard nature protection and environmental interests, as well as parts of the general public who are likely to be particularly affected.", "29. A railway investigation is to be conducted when the preliminary study shows that alternative routes should be examined. The alternatives and their consequences should be described so as to allow them to be compared both with one another and with the alternative of not carrying out any railway expansion at all. A railway investigation should include consultation with the country administrative board, supervisory authorities and individuals who are likely to be particularly affected. The investigation must contain an environmental impact assessment formulated in accordance with the regulations of the Environmental Code. The investigation results in the National Transport Administration ( Trafikverket; before April 2010: the NRA ) deciding on a corridor in the terrain where the railway should be located.", "B. The Government ’ s permissibility assessment", "30. Major railway projects are also subject to a Government permissibility assessment (Chapter 17 of the Environmental Code). The permissibility assessment is made on the basis of the railway investigation. No appeal lies from the Government ’ s decision, but a judicial review of the decision can be obtained through an application to the Supreme Administrative Court.", "31. According to the preparatory works of the Environmental Code, the Government ’ s decision on the issue of permissibility is binding on subsequent reviews. Hence, if the Government has reviewed the permissibility of an activity, courts and authorities cannot review this issue (Government Bill 1997/98:45, part 1, pp. 436 et seq.). In principle, the Government ’ s assessment should take place at a relative early stage of the process and primarily concern the permissibility of an activity. The issue of permissibility under the Code also includes the issue of the location of the activities ( ibid ., pp. 440 et seq.). A permissibility review for a railway results in the Government granting permission to construct the railway within a defined corridor.", "C. The environmental courts ’ review", "32. Pursuant to Chapter 11 of the Environmental Code, a permit is required for water operations. The term “water operations” refers, inter alia, to the construction in water areas and the diverting of water away from water areas. Decisions on permits are taken by an environmental court and may be appealed to the Environmental Court of Appeal and the Supreme Court. Appeals may be made by any person subjected to an adverse judgment or decision, or by authorities, municipality committees or other bodies entitled to appeal pursuant to specific provisions.", "33. The EU Habitats Directive (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) – which defines how Natura 2000 sites are managed and protected – and the EU Birds Directive (Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds) have been implemented in Swedish legislation, primarily through the provisions of the Environmental Code and the Ordinance on Site Protection under the Environmental Code ( Förordningen om områdesskydd enligt miljöbalken m.m .,1998:1252).", "34. Pursuant to Chapter 7, section 28a of the Code, a permit is required for activities or measures which may significantly affect the environment in a Natura 2 000 site. Such a permit may only be granted if the activity or measure will not damage the habitats under protection or cause that the species under protection are exposed to a disturbance that may significantly impinge on their conservation in the area. However, a permit may nevertheless be granted if 1) there is no alternative solution, 2) the activity or measure must be carried out for imperative reasons of vital public interest, and 3) the necessary measures are taken to compensate for environmental losses, so as to ensure that the purpose of protecting the site concerned can still be achieved (Chapter 7, section 29).", "35. If a permissibility review under Chapter 7, section 29 of the Code concerns an activity or measure that may affect the environment in an area that contains a prioritised species or habitat, the review may only take account of circumstances that concern 1) human health, 2) public safety, 3) vital environmental protection interests, or 4) other imperative circumstances of overriding public interest. With regard to circumstances referred to in point 4 the European Commission must be given the opportunity to state an opinion before the matter is settled.", "36. Decisions on permits under Chapter 7, section 28 a of the Code are taken by a county administrative board. If, however, a permit is required according to, inter alia, Chapter 11 of the Code, the decision should be taken by the authority deciding on the latter permission. Decisions by the county administrative board may be appealed to an environmental court and further to the Environmental Court of Appeal and the Supreme Court.", "D. The Government ’ s review of a railway plan", "37. In the third planning phase a railway plan is elaborated by the enterprise that intends to construct the railway, pursuant to the provisions of the Railway Construction Act. The plan must describe the location and design of the railway construction in detail as well as the land and the special rights that need to be claimed for the railway itself and its construction. The railway plan must contain an environmental impact assessment. Moreover, consultation is required with affected property owners, municipalities and country administrative boards, and with other parties who may have a substantial interest in the matter. Subsequently, the National Transport Administration, having consulted the county administrative board, must assess whether the plan is to be adopted. If the plan involves making compulsory claims on, inter alia, land or special rights, the National Transport Administration must make a special assessment whether the advantages that may be secured by the plan outweigh the inconvenience that it causes the individual parties. A decision by the National Transport Administration to adopt a plan may be appealed to the Government. The Government ’ s decision is final. However, it is possible to request judicial review of the decision.", "38. By virtue of an adopted railway plan, the railway constructor has the right to purchase necessary land, through a court decision or by a cadastral procedure. In cases concerning purchases and compensation the Expropriation Act ( Expropriationslagen, 1972:719) applies.", "E. Judicial review and domestic case-law", "39. The 1988 Act on Judicial Review of Certain Administrative Decisions ( Lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205) was introduced as a result of the European Court ’ s findings in several cases that the lack of judicial review of certain administrative decisions infringed Article 6 § 1 of the Convention. It was replaced by the 2006 Act on Judicial Review of Certain Government Decisions ( Lagen om rättsprövning av vissa regeringsbeslut, 2006:304), which entered into force on 1 July 2006.", "40. In 2004, at the time of the judicial review of the Government ’ s permissibility decision, the 1988 Act applied. It stipulated that an individual who was a party to administrative proceedings before the Government or any other public authority concerning, inter alia, the right to property or the relations between private subjects and public bodies which related to the individual ’ s personal and economic circumstances could, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions which involved the exercise of public authority vis-à-vis the individual. In proceedings brought under the 1988 Act, the Supreme Administrative Court examined whether the contested decision “conflicted with any legal rule”. According to the preparatory works ( Government Bill 1987/88:69, pp. 23-24), its review of the merits of the cases concerned essentially questions of law but could, in so far as relevant for the application of the law, extend also to factual issues; it also had to consider whether there were any procedural errors which could have affected the outcome of the case. If the Supreme Administrative Court found the impugned decision unlawful, it had to quash it and, where necessary, refer the case back to the relevant administrative authority.", "41. In 2008, at the time of the judicial review of the Government ’ s decision on the railway plan, the 2006 Act applied. The procedural framework is essentially the same as described above with some exceptions. For example, in contrast to the 1988 Act, it is no longer required that the individual has been a party to previous proceedings to be able to apply for a judicial review (Government Bill 2005/06:56, p. 12). Thus, any individual can apply for judicial review of decisions by the Government as long as they concern the individual ’ s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. However, in practice this had already applied for a number of years in accordance with domestic case-law (RÅ 1999 ref. 27).", "42. In a judgment from 2011 concerning the Government ’ s permissibility decision on the construction of a road in Stockholm, the Supreme Administrative Court found that, although it could not be established at that stage which petitioners (all of whom owned property within the suggested corridor ) would finally be affected by the road construction, the location of the road was in fact decided through the Government ’ s decision and could not be subject to review in any subsequent proceedings concerning the road project. Consequently, in the Supreme Administrative Court ’ s view, the contested decision entailed an assessment of the petitioners ’ civil rights or obligations within the meaning of Article 6 § 1 of the Convention, and thus, the petitioners were considered to have locus standi in the judicial review of the Government ’ s permissibility decision (HFD 2011 not. 26).", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "43. The applicants complained under Article 6 of the Convention that they had been denied a fair trial with regard to their civil rights, as they had been refused a full legal review of the Government ’ s decision to permit the construction of the railway, which was situated on or close to their properties. The latter decision had significantly affected the applicants ’ property as well as the environment in the area concerned. Article 6 § 1 of the Convention reads, in so far as relevant, as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to [a] ... hearing ... by an independent and impartial tribunal established by law...”", "A. Admissibility", "1. Compatibility ratione materiae", "44. The respondent Government contended that Article 6 was not applicable in relation to the twelve applicants who did not own houses or land located in the “corridor” specified by the NRA, within which the railway was constructed. As, allegedly, their civil rights had not been affected, their complaints should be declared inadmissible for being incompatible ratione materiae.", "45. The applicants contested the Government ’ s objection. They claimed that they had submitted maps showing the location of their properties to the Supreme Administrative Court in the proceedings concerning the adoption of the railway plan. The opposing party – the Government – had not objected to the standing of the applicants, nor had their request been rejected by the court on the ground that they or their properties were not affected by the railway construction.", "46. The Court first notes that the applicants, in the domestic as well as the instant proceedings, have complained about the railway construction and its location, invoking both general environmental aspects and more individual concerns such as the impact of noise and vibrations on the enjoyment of their homes and property and on human health, necessarily including their own, as well as the reduction in value of their property. While public interests such as environmental harm in general may be recognised as valid grounds for an individual complaint under domestic law, in the present case the Court cannot find that these claims concerned the applicants ’ “civil rights” within the meaning of Article 6. However, the other issues raised by the applicants, in particular the effects of the railway project on their homes and land, related to their “civil rights”. Furthermore, there was a genuine and serious dispute over those rights and the domestic proceedings were decisive for them (see, for instance, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV).", "47. As regards the Government ’ s claim that Article 6 is not applicable to the twelve applicants who did not own houses or land inside the “corridor”, the Court is not in a position to determine how close to the “corridor” or the actual railway the individual properties need to be in order for the rights of property owners to be considered affected. It should be noted, however, that, except for the Supreme Administrative Court ’ s decision of 1 December 2004 – which concluded that, at that stage of the proceedings, it was not possible to assess who would be affected by the construction of the railway – the applicants ’ domestic appeals and requests were not dismissed on the ground that they were not sufficiently concerned by the construction. Furthermore, at least ten of the applicants – of which seven have their houses and land situated outside the “corridor” – have received some form of compensation. There is no indication that any applicant ’ s request for compensation has been refused. In these circumstances, the Court considers that the applicants ’ “civil rights” were sufficiently affected for their complaints to fall under Article 6 of the Convention.", "48. The Government ’ s objection as to the compatibility ratione materiae of the twelve applicants ’ complaints must accordingly be rejected.", "2. Compatibility ratione personae", "49. The Government further claimed that the application should be declared inadmissible for being incompatible ratione personae in so far as it concerned the complaints of Mr Johansson and Mr Skoog. With respect to Mr Johansson, they stated that he had only been subject to compensatory measures in regard to land owned by a joint-property association in which he was a member. They pointed out that rights and obligations incumbent on joint property fall within the competence of the association and not its individual members. With respect to Mr Skoog, they referred to the fact that he had transferred his property to Ms Granberg in January 2011.", "50. The applicants pointed out that Mr Skoog had been the owner of the property in question at the time of the events in the case and during the following years.", "51. The Court notes that Mr Johansson, in addition to jointly owned property, owned individual property in the area at issue (located outside the “corridor”; see further paragraph 7 above) and that this was the basis for his membership in the joint-property association. In so far as the applicability of Article 6 is concerned, his situation is thus no different from the other applicants in the case (see paragraph 4 7 above). As to Mr Skoog, it should be stressed that the applicants ’ complaint under Article 6 concerns access to court, which issue must be determined on the basis of the facts pertaining at the time of the domestic proceedings in the case. While Mr Skoog ’ s property was transferred to another applicant in January 2011, he was the owner of said property throughout those proceedings and also at the time when the present application was lodged. Consequently, there is no reason to find that either Mr Johansson or Mr Skoog could not be a victim within the meaning of Article 34 of the Convention.", "52. The Government ’ s objection as to the compatibility ratione personae of their complaints must accordingly also be rejected.", "3. Exhaustion of domestic remedies", "53. The Government finally maintained that all the applicants had failed to exhaust domestic remedies. They pointed out that only three applicants had requested a judicial review of the Government ’ s permissibility decision of 2003 before the Supreme Administrative Court. Further, the judgment of the Environmental Court of 2007, approving the construction of the railway and two bridges, had not been appealed against by one applicant. Moreover, in the proceedings concerning the adoption of the railway plan, six applicants had failed to appeal to the Government against the decision of the NRA.", "54. In addition, the Government asserted that the applicants had, and still have, the possibility to claim compensation before the Swedish courts or the Chancellor of Justice. Referring to several judgments and decisions by the Supreme Court in recent years, the Chancellor ’ s subsequent compensation awards as well as the European Court ’ s conclusions in, inter alia, the cases of Eskilsson v. Sweden ((dec.), no. 14628/08, 24 January 2012) and Eriksson v. Sweden (no. 60437/08, 12 April 2012), they stated that Swedish law provided a remedy in the form of compensation for both pecuniary and non-pecuniary damage in respect of any violation of the Convention, including violations under Article 6. The Government pointed out that the limitation period in respect of compensation claims against the State – ten years from the point in time when the damage had occurred, under Section 2 of the Limitation Act ( Preskriptionslagen, 1981:130) – had not yet run out.", "55. The applicants disagreed. In regard to the permissibility proceedings, they stated that, while only three of them had requested a review before the Supreme Administrative Court, their request had been dismissed for lack of standing because the court had found that it could not be established which property owners would be affected by the project until the railway plan had been adopted. There was nothing to suggest that that outcome would have been any different if all the applicants had requested a review. With respect to the examinations of the environmental courts and the Supreme Court, the applicants maintained that these proceedings had not provided an effective remedy to challenge the Government ’ s decision of 2003 on the permissibility of the railway construction in the specified location, as the courts had clearly stated that they were bound by that decision. As to the proceedings concerning the adoption of the railway plan, the applicants submitted that what mattered in terms of exhaustion of remedies was that all of them had requested a judicial review by the Supreme Administrative Court of the Government ’ s decision. The right to request such a review was not dependent on whether a petitioner had been active in the proceedings before the Government ’ s decision.", "56. Finally, in respect of the issue of non-exhaustion based on failure to claim compensation domestically, the applicants claimed that no such procedure provided a remedy addressing the lawfulness of the Government ’ s decisions concerning the site of the railway construction.", "57. The Court reiterates that normal recourse should be had by an applicant to a remedy which is available and sufficient to afford redress in respect of the breaches alleged. If there are several potentially effective remedies, it is normally enough if the applicant has recourse to one of them.", "58. In the present case, a number of individual property owners – including three of the applicants – petitioned the Supreme Administrative Court for a judicial review of the Government ’ s decision of 12 June 2003 to allow the construction of the railway in question. Given the binding nature of the Government ’ s permissibility decision on the later proceedings – as confirmed by the judgments and decisions taken in regard to construction permits and the adoption of the railway plan – it would seem natural for discontented property owners to challenge that very decision by the only means available, a petition for judicial review. However, the Supreme Administrative Court dismissed the petition without an examination of its merits in respect of all petitioners. The reason for the dismissal was not that the court found itself incompetent to rule on such a petition or that the particulars of the individual property owners were such that they lacked a justifiable interest in having a judicial review of the Government ’ s decision. Instead, the Supreme Administrative Court considered that it could not be assessed with any certainty who would be sufficiently affected by the railway project until the railway plan had been drafted. In other words, it was too early to determine who would be entitled to bring a legal action against the Government ’ s decision. The court added that a judicial review would instead be available of the later decision to adopt the railway plan.", "59. Given the Supreme Administrative Court ’ s decision to dismiss the challenge against the Government ’ s permissibility decision – and the reasons given for the dismissal – it must be concluded that, in this particular case, the petition for judicial review was not an effective remedy, at least not at that point in time. It would not have made any difference if all applicants had joined that petition. The same goes for the subsequent proceedings relating to construction permits. Whether or not it was at all possible to have an assessment of the impact of the railway project on the enjoyment of individual homes and property in these proceedings, it is clear that the environmental courts found themselves bound by the Government ’ s permissibility decision and limited their examination to more general environmental issues. For these reasons, the applicants who did not partake in the various petitions and appeals during the first two sets of proceedings must be excused for their lack of action.", "60. Coming to the third stage of the domestic examination of the railway project – the proceedings on the adoption of the railway plan – it is true that six applicants failed to appeal to the Government. However, such an appeal was not a prerequisite for the right to subsequently request a judicial review. This is shown by the fact that when the applicants made a petition for judicial review, they were all accepted as petitioners by the Supreme Administrative Court. None of them had their case dismissed for failure to exhaust previous remedies. Therefore, since all of the applicants participated in these judicial review proceedings and since the Supreme Administrative Court had previously, in its decision of 1 December 2004, indicated that this was the time to obtain a judicial examination of their individual interests, all of the applicants must be considered to have exhausted the potentially effective domestic remedies available in relation to the construction of the railway.", "61. Finally, with respect to the Government ’ s submission that the applicants could claim compensation for a violation of the Convention before the Swedish courts or the Chancellor of Justice, the Court, in several cases, has observed that domestic case-law has developed since 2005 and has concluded that, following a Supreme Court judgment of 3 December 2009 (NJA 2009 N 70), there is now an accessible and effective remedy of general applicability, capable of affording redress in respect of alleged violations of the Convention (see, among other authorities, Eriksson v. Sweden, cited above, § § 48 -52, and Marinkovic v. Sweden (dec.), no. 43570/10, § 43, 10 December 2013, and – in regard to the domestic case-law developments – the latter decision, §§ 21-31 ). However, this remedy, which introduced a general principle of law that compensation for Convention violations can be ordered without direct support in Swedish law, was established after the present application had been lodged on 4 June 2009. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged to the Court. The question arises whether the applicants should still be obliged to make use of this remedy, for which the limitation period has not yet expired. Such an obligation may exceptionally exist, depending on the particular circumstances of each case (see, for example, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001- IX, and Andrei Georgiev v. Bulgaria, no. 61507/00, § 78, 26 July 2007 ). In this respect, it should be noted that the domestic developments have been gradual and set out in case-law with no specific reference to the type of case or situation in which the applicants have been involved. Moreover, the various domestic proceedings relating to the construction of the railway in question lasted for nine years, from 1999 to 2008. In these circumstances, it would not be reasonable to expect the applicants to turn again to the domestic courts or to the Chancellor of Justice to make use of a remedy established after the introduction of the present application. Consequently, there are no exceptional circumstances in the instant case which would justify a departure from the general rule that the issue of exhaustion of domestic remedies is assessed with reference to the time when the application was lodged to the Court. It has not been shown that, at that time, there was case-law demonstrating that compensation for Convention violations could be awarded for a lack of access to court. Nor had a compensation remedy of general applicability been established yet.", "62. The Government ’ s objection as to the exhaustion of domestic remedies must accordingly also be rejected.", "63. No other ground for declaring the application inadmissible has been invoked or established. It must therefore be declared admissible.", "B. Merits", "1. The applicants ’ submissions", "64. The applicants submitted that the Swedish courts had failed to ensure them a fair trial in respect of their civil rights by denying them a judicial review of the Government ’ s permissibility decision of 12 June 2003. Once that decision had taken effect the administrative authorities and courts were bound by it in all the subsequent examinations and could only decide on issues relating to the construction and design of the railway. In the applicants ’ view, the only effective way to determine their civil rights would have been a judicial review before the Supreme Administrative Court. However, that possibility had been closed through the court ’ s decision of 1 December 2004 to dismiss the petition for judicial review, referring to later proceedings concerning the railway plan, and its judgment of 10 December 2008 not to examine the issues of location and effects of the railway in the proceedings concerning the railway plan.", "2. The Government ’ s submissions", "65. The Government submitted that the question of permissibility lay within the Government ’ s power since they were best placed to make the overall review required, taking account of the relative weight of environmental protection, employment policy, regional policy and other aspects. The permissibility review was therefore mainly of a political nature. Furthermore, in relation to issues of urban and regional planning policies, where the community ’ s general interest was pre-eminent, the State ’ s margin of appreciation was arguably greater than when exclusively civil rights were at stake. Moreover, there was nothing to indicate that the decision on permissibility of the railway had been arbitrary or taken in conflict with national or international legislation or that the Government had erred in fact or in law. A fair balance had allegedly been struck between the competing interests of the individuals concerned and the community as a whole.", "66. Moreover, the Government asserted that the applicants had had a clear and practical opportunity to challenge the issues that they believed interfered with their rights in the various proceedings relating to the railway. They contended, inter alia, that the minimum safeguards to ensure a fair balance between the applicants ’ and the community ’ s interests had been put into place in the present case; the construction of the railway had been preceded by an environmental impact assessment procedure, assessing the probability of compliance with applicable environmental standards and enabling interested parties, including the applicants in the instant case, to contribute their views.", "67. The Government further argued that the applicants ’ claims as concerned human health, the environment and the consideration of alternative sites for the railway had indeed been considered in the proceedings on the adoption of the railway plan, including the 2008 judicial review of the Supreme Administrative Court. The applicants had also had the opportunity to have the alleged nuisances emanating from the railway, including loss of residential value and noise issues, examined by the relevant authorities and courts. The Government further pointed out that the majority of the applicants had received compensation for reduced residential value or permanent loss of market value and that measures had been taken to reduce or exclude noise nuisance. Allegedly, affected applicants still had the possibility of instituting proceedings to claim compensation.", "3. The Court ’ s assessment", "68. From the outset, the Court recognises the complexity of the planning and construction of infrastructure, such as a railway in the present case, as well as the public and economic concerns that such a process entails. The choice of how to regulate the construction of railways is a policy decision for each Contracting State to take according to its specific democratic processes. Article 6 § 1 cannot be read as expressing a preference for any one scheme over another. What Article 6 § 1 requires is that individuals be granted access to a court whenever they have an arguable claim that there has been an unlawful interference with the exercise of one of their (civil) rights recognised under domestic law (see Athanassoglou and Others v. Switzerland [GC], cited above, § 54).", "69. Turning to the facts of the present case, it is clear – and undisputed – that the applicants had civil rights, at least in relation to the enjoyment of their property, which they wished to invoke in the domestic proceedings. As has been mentioned above ( paragraph 58 ), the Government ’ s decision of 12 June 2003 to permit construction of the railway in the specified “corridor”, as soon as it was final, acquired binding force on the further examinations relating to the railway. Thus, the Supreme Administrative Court ’ s judicial review of the Government ’ s decision would have been the natural point in time for the rights of the local property owners to be determined. However, the court, on 1 December 2004, denied the petitioners locus standi and stated that the parties sufficiently affected by the future railway could have a judicial review of the later Government decision on the railway plan. Nevertheless, the courts in the subsequent proceedings, including the Supreme Administrative Court when it examined the railway plan in 2008, found, in accordance with the applicable rules, that they were bound by the Government ’ s permissibility decision, and accordingly did not examine any issues that had been determined by that decision.", "70. It is true that certain details of the railway project could be determined in the subsequent proceedings and that several applicants have received some form of compensation for the effects of the railway construction. The fact remains, however, that the applicants were not able, at any time of the domestic proceedings, to obtain a full judicial review of the authorities ’ decisions, including the question whether the location of the railway infringed their rights as property owners. Thus, notwithstanding that the applicants were accepted as parties before the Supreme Administrative Court in 2008, they did not have access to a court for the determination of their civil rights in the case.", "There has therefore been a violation of Article 6 § 1 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "71. Referring to the same facts and to the Court ’ s findings in the case of Taşkın and Others v. Turkey ( no. 46117/99, § 119, ECHR 2004 ‑ X ), the applicants submitted that there had been a violation also of their right to respect for their private and family life under Article 8 of the Convention, as it entailed a right “ to appeal to the courts against any decision, act or omission where they consider [ed] that their interests or their comments [had] not been given sufficient weight in the decision-making process ”.", "72. The Government disagreed. They made the same preliminary objections as under Article 6. In addition, they claimed that, even if there had been an interference with the applicants ’ rights under Article 8, it had not been shown that the railway in question entailed such adverse effects for them that the minimum level required to attract the application of Article 8 had been reached.", "73. The Court notes that this complaint is in substance the same as the one examined above under Article 6. As it is so linked, the present complaint must be declared admissible. However, having regard to the findings under Article 6, the Court finds that no separate issue arises under Article 8.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "74. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "75. The applicants stated that they did not request any other compensation than costs and expenses for their legal representation, as they had introduced the application for reasons of principle.", "76. The Court, accordingly, does not award any amount under this head.", "B. Costs and expenses", "77. The applicants claimed a total of 562,500 Swedish kronor (SEK; approximately 61 ,000 euros (EUR) ) in costs and expenses for the proceedings before the Supreme Administrative Court concerning the railway plan and the proceedings before the European Court. This amount corresponded to legal fees for 100 hours of work by Mr Rosengren (60 hours in the domestic proceedings and 40 hours in the present proceedings) and expenses for 50 hours of work by Mr Ebbesson (20 hours in the domestic proceedings and 30 hours in the present proceedings), all at an hourly rate of SEK 3,7 50 (approximately EUR 410 ), inclusive of value-added tax (VAT).", "78. The Government submitted that the claims for legal fees incurred during the domestic proceedings were excessive and not sufficiently specified as to the time spent on every measure. They also noted that Mr Rosengren had represented six petitioners who were not applicants in the present proceedings. Furthermore, the hourly rate claimed exceeded the Swedish hourly legal aid fee, which for 2013 was SEK 1,552.50 (VAT included). In total, the Government accepted compensation for the domestic proceedings in the amount of SEK 62,125 (approximately EUR 6,8 00), corresponding to 30 hours of work by Mr Rosengren and 10 hours by Mr Ebbesson. As regards the proceedings before the European Court, the Government found also these claims excessive, noting that both representatives were already familiar with the circumstances of the case as they had acted on the applicants ’ behalf in the domestic proceedings. The compensation for the present proceedings should thus not exceed SEK 54,375 (approximately EUR 5,9 00), corresponding to 20 hours of work by Mr Rosengren and 15 hours by Mr Ebbesson. Finally, the Government submitted that the compensation should be reduced in the event that the Court found a breach of the Convention in relation to only part of the applicants ’ complaints.", "79. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard should be had to the fact that Mr Rosengren represented also other petitioners than the applicants in the domestic proceedings, that a substantial part of the applicants ’ pleadings, notably in the domestic proceedings, concerned environmental issues which have not been considered to fall under the applicants ’ “civil rights” within the meaning of Article 6 of the Convention and that, albeit of lesser importance, the complaint under Article 8 has been found to raise no separate issue. Making an overall assessment, the Court considers it reasonable to award the total amount of EUR 20, 0 00, including VAT, for costs and expenses in the domestic proceedings and the proceedings before the Court.", "B. Default interest", "80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The individual applicants were born in 1963, 1962 and 1961 respectively and live in Wapenveld. The applicant foundation has its registered address in Wapenveld and is the owner of an estate situated at that address, where it runs a study centre. The applicants were represented by Mr R.S. Wertheim, a lawyer practising in Zwolle.", "3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs.", "4. The facts of the case, as submitted by the parties, may be summarised as follows.", "5. The village of Wapenveld, where the individual applicants live and which also houses the application foundation’s estate, is part of the municipality of Heerde, which is located in the Province of Gelderland.", "6. A motocross track, which is operated by a motocross association (“the association”), is located in Heerde, in close proximity to the applicants’ premises and land. Since 19 May 1987 the association has been operating under a permit granted by the Provincial Executive ( Gedeputeerde Staten ) of the Province of Gelderland which allows the motocross track to operate from 1 p.m. to 7 p.m. on Wednesdays and Saturdays and, from April to October, on a further two weekdays from 2 p.m. to 7 p.m.", "7. The association and the applicants’ premises are (partially) located within the so-called Natura 2000 area (a Special Area of Conservation, designated under the EU Habitats Directive). The applicants claim that they can hear the motocross bikes from their premises and land.", "8. On 27 September 2013, the association asked the Province of Gelderland to issue it with a new permit under the 1998 Nature Conservation Act ( Natuurbeschermingswet 1998) that would allow it to expand its activities, with a larger number of motocross bikes and extended opening hours.", "9. On 4 December 2013, the Provincial Executive published a notice on its website to the effect that it intended to grant the requested permit and that the draft decision and the relevant documents could be viewed from 9 December 2013 until 20 January 2014 at the provincial government building and on its website. Interested parties ( belanghebbenden ) within the meaning of section 1:2(1) of the General Administrative Law Act ( Algemene wet bestuursrecht; see paragraph 17 below) were given an opportunity to submit their views on the draft decision, either in writing or orally, before 20 January 2014, and more information on that matter could be found at the end of the draft decision itself.", "The text of the draft decision mentioned that it would only be possible to appeal against the actual decision if the appellant had already submitted his or her views on the draft decision and he or she was an interested party.", "10. No views having been received, the Provincial Executive issued the permit on 27 January 2014. It published notification of its decision on the provincial website, saying that the decision and the relevant documents could be viewed from 30 January until 13 March 2014 at the provincial government building and on the aforementioned website. Interested parties could appeal against the decision before 13 March 2014, and more information on that matter could be found at the end of the decision itself. The text of the decision also mentioned that Chapter 3.4 of the General Administrative Law Act (see paragraph 18 below) had been declared applicable to the association’s request for a new permit.", "11. The applicants first became aware of the decision granting the new permit on 4 November 2014. On 12 November 2014 they appealed to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State – “the Administrative Jurisdiction Division”) against the decision. They stated that it was unclear whether the notifications of the draft decision and the decision had ever actually been published. In addition, they submitted that the fact that they had lodged their appeal outside the legal time-limit and that they had not submitted any views on the draft decision was excusable because publishing the notification on a provincial government website could not be regarded as publishing in “some other suitable manner” as required by section 3:12(1) of the General Administrative Law Act (see paragraph 19 below). Citizens of the Netherlands could not be expected, or might not be able, to monitor all the websites of all local and regional administrative authorities. On those grounds, the applicants argued that their right of access to a court under Article 6 of the Convention had been breached.", "12. In the appeal proceedings it was argued on behalf of the Provincial Executive that the notifications of both the draft decision and the decision had been published correctly. Two screenshots were submitted, taken from an archiving website which showed the notifications of the draft decision and the decision. The Provincial Executive also argued that the electronic publication of the notifications complied with the provisions of the General Administrative Law Act and the 2012 Gelderland Province Electronic Notification Ordinance ( Verordening elektronische bekendmaking Gelderland 2012, “the Electronic Notification Ordinance” – see paragraphs 23-25 below) which specifically provided for electronic publication. Given the accessibility of the Internet, moreover, the Provincial Executive was of the view that there had been no violation of Article 6 of the Convention.", "13. The Administrative Jurisdiction Division decided on the appeal in a judgment of 7 September 2016 (ECLI:NL:RVS:2016:2421). In it, it referred to a previous judgment in which it had held that notification of a draft decision via the Internet could constitute a suitable manner of notification, but that the applicable provisions of the General Administrative Law Act required that notification of a draft decision also be given in at least one non-electronic manner, unless a statutory provision provided otherwise (see paragraph 22 below). The applicants’ argument that electronic notification was not a suitable manner of notification did not give the Administrative Jurisdiction Division cause to reconsider this case ‑ law.", "14. Furthermore, it considered that its case-law was not at odds with Article 6 of the Convention. Referring to the Court’s case-law (see Ashingdane v. the United Kingdom, 28 May 1985, Series A no. 93), it stated that Article 6 did not entail an absolute right of access to a court and that States had a certain margin of appreciation when laying down regulations limiting access to a court, as long as such limitations did not impair the very essence of the right of access to a court, pursued a legitimate aim, and complied with the requirement of proportionality. The Administrative Jurisdiction Division acknowledged that the manner of notification of a decision could in certain circumstances restrict access to a court to an extent incompatible with Article 6; for example if notice of a decision was given in a completely inadequate manner and as a result an interested party was unable to apply to a court within the period allowed, or at all. The Administrative Jurisdiction Division held that such a situation did not arise when notification of a decision was given solely by electronic means, and it could therefore not be said that the essence of the right to a court was impaired. By allowing notification of a decision solely by electronic means, the legislator had attempted to facilitate easier and faster communication between citizens and the administrative authorities. The underlying thought behind this was that such electronic communication could significantly contribute to the objective of achieving a more accessible and better functioning administration, which was a legitimate aim.", "15. The Administrative Jurisdiction Division found that the applicants’ argument offered no grounds for holding that the requirement of proportionality had not been complied with when notification of a decision was given solely by electronic means. It therefore perceived no cause to hold that the possibility of giving notification of decisions solely by electronic means was, as such, contrary to Article 6.", "16. Lastly, the Administrative Jurisdiction Division noted that the Electronic Notification Ordinance (see paragraphs 12 above and 23-25 below) had entered into force before the impugned decision had been taken. There had therefore existed a statutory provision providing for notification of decisions solely by electronic means. For that reason it considered that it was in principle not unacceptable that notification of the decision had been published solely on the Gelderland provincial website. Moreover, the applicants had not made a plausible case for believing that the archiving website used by the Provincial Executive and other administrative authorities was unreliable or that it did not provide a proper overview of notifications that had previously been published on the provincial website. The Administrative Jurisdiction Division considered it sufficiently established that the notifications of both the draft decision and the decision had been published on the latter website. The applicants could therefore reasonably be considered to have been at fault for not having submitted any views on the draft decision and for having lodged their appeal too late. That appeal was accordingly inadmissible." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "17. Section 1:2(1) of the General Administrative Law Act defines “interested parties” as persons (including legal entities) whose interest is directly affected by a decision ( besluit ). That interest should be the person concerned’s own, rather than an idealistic or general interest; it should also be objectively determinable, current and personal. A “decision” as referred to above is a decision in writing taken by an administrative authority ( bestuursorgaan ) constituting a legal act governed by public law ( publiekrechtelijke rechtshandeling; section 1:3(1) of the General Administrative Law Act).", "18. The rules governing the publication of draft decisions and decisions are set out in chapter 3 of the General Administrative Law Act. Sub ‑ chapter 3.4 of that Act, which provides for public participation in decision-making by administrative authorities, applies to the preparation of decisions if this is determined by law or decided by the administrative authority concerned.", "19. Section 3:11(1) of the General Administrative Law Act, which is set out in sub-chapter 3.4, provides that the administrative authority must deposit a draft decision for public inspection ( terinzagelegging ), together with the relevant documents which are reasonably necessary to assess the draft. Section 3:12(1) of sub-chapter 3.4 lays down the manner in which a deposition for inspection is to be notified to the public. It provides that, prior to such deposition, the administrative authority must give notice of the draft decision in one or more daily or weekly newspapers or free local papers or in some other suitable manner. Only the substance of the draft decision need be stated. Under section 3:15(1) of sub-chapter 3.4, interested parties within the meaning of section 1:2(1) (see paragraph 17 above) may submit their views on the draft decision to the administrative authority, either orally or in writing. An interested party who has not submitted his or her views on the draft decision, for which failure he or she can reasonably be reproached, cannot appeal to a court against the actual decision (section 6:13 of the General Administrative Law Act).", "20. Section 42(3) of the 1998 Nature Conservation Act, which concerns the manner in which a decision taken under that Act is to be notified to the public, reads as follows:", "“The authority authorised to grant a permit in accordance with sections 16 and 19 shall publish the notification of a decision to grant, modify or withdraw a permit in one or more daily or weekly newspapers or free local papers or in some other suitable manner. Only the substance of the draft decision need be stated.”", "21. A notification of a (draft) decision is a communication within the meaning of section 2:14 of the General Administrative Law Act, according to the drafting history of this provision. The first paragraph of the provision provides that an administrative authority may send a communication which is addressed to one or more specific individual(s) by electronic means to those addressees who have indicated that they can be properly contacted in that manner. As regards communications not addressed to one or more specific persons, section 2:14(2) provides that, unless otherwise provided by law, they should not be sent solely by electronic means.", "22. In a judgment of 15 August 2012 (ECLI:NL:RVS:2012:BX4676), the Administrative Jurisdiction Division held that notifying a draft decision via the Internet constituted a suitable manner of notification within the meaning of section 3:12(1) of the General Administrative Law Act. However, it followed from section 2:14(2) of that Act that draft decisions had also to be notified in at least one non ‑ electronic manner, unless a statutory provision providing otherwise was in force.", "23. On a proposal from the Provincial Executive, the Electronic Notification Ordinance was adopted by the Gelderland Provincial Council ( Provinciale Staten ) on 26 September 2012 in order to provide a statutory basis for the practice, which had been in existence since 1 October 2011, of publishing notifications of decisions taken by an administrative authority of Gelderland Province solely by electronic means. The explanatory notes ( toelichting ) to the proposal stated, inter alia, that this new method of publication of notifications had been brought to the attention of the public through various advertisements in local newspapers in the second half of 2011. In view of the level of computer ownership in the Netherlands, the explanatory notes concluded that the reach of electronic publication was likely to be larger than that of traditional publication on paper in free local newspapers. Notification by electronic means would, in practice, mean that notifications not addressed to one or more specific individuals would be made available for consultation on the Internet, for example via the website of Gelderland Province.", "24. Notification of the adoption of the Electronic Notification Ordinance, as well as the text of the Ordinance, was published in the Gelderland Provincial Bulletin ( Provinciaal blad van Gelderland ) of 27 September 2012. Notification of that adoption was also published in the Official Gazette ( Staatscourant ) of 10 October 2012. That publication pointed out that the text of the Ordinance could be found on the Gelderland provincial website and that the Ordinance provided a legal basis for the practice, in force since 1 October 2011, of publishing notifications relating to provincial decision-making solely by electronic means and no longer in local newspapers.", "25. Section 2(1) of the Electronic Notification Ordinance provides that it is permissible for notifications of announcements ( meldingen ), applications ( aanvragen ), draft decisions ( ontwerpbesluiten ) and decisions ( besluiten ) to be published solely by electronic means.", "26. Pursuant to section 6:11 of the General Administrative Law Act an objection ( bezwaar ) or appeal which is lodged after the expiry of the time ‑ limit set for that purpose will not be declared inadmissible for that reason if it cannot reasonably be held that the person who lodged it was at fault.", "THE LAW", "ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "27. The applicants complained that the publication of the notifications of both the draft decision and the decision of the Provincial Executive solely by electronic means had breached their right of access to a court as provided in Article 6 § 1 of the Convention, the relevant parts of which provide:", "“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”", "Admissibility", "28. In their submissions, the Government accepted the applicability of Article 6 of the Convention, as the outcome of the domestic proceedings had affected the applicants’ civil rights, notably their rights deriving from the right to property.", "29. The applicants maintained that their civil rights had been at issue, as the decision had disrupted their quality of life, inter alia as a result of the noise pollution. It had also reduced the value of their properties and had thus had pecuniary consequences for them. Lastly, they submitted that their right to a healthy environment had been affected.", "30. The Court considers that the applicants’ claims relating to general environmental harm do not concern their “civil rights” within the meaning of Article 6 of the Convention. However, other issues raised by the applicants, in particular the effects of the expansion of the activities at the motocross track on their properties and land, do relate to their “civil rights”. Furthermore, the domestic proceedings initiated by the applicants concerned the authorities’ decision to permit the expansion of those activities and were decisive for those rights (see Karin Andersson and Others v. Sweden, no. 29878/09, § 46, 25 September 2014). The Government did not dispute this. Moreover, it cannot be said that the aforementioned effects on their property and land were mere remote consequences (see, a contrario, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, §§ 43 and 46-55, 6 April 2000 ).", "31. Having regard to the above considerations, the Court finds that Article 6 applies to the present case under its civil limb.", "32. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "33. The applicants submitted that, as they had been unaware of the decision to extend the opening hours of the motocross track, they had been deprived of the possibility to appeal in time to the domestic courts. They argued that the publication of the notification solely by electronic means had impaired the essence of the right to appeal, because not all citizens had access to a computer or the Internet. Electronic publication did not have the same reach as printed publication. Citizens who did have access to the Internet could not be expected to monitor all governmental websites on a regular basis. The applicants pointed out that citizens had to search actively for electronic notifications, which was not the case for notifications published in local and national newspapers.", "34. In addition, they submitted that the Dutch system of electronic publication of notifications was highly opaque and arbitrary and that there was an insufficiently clear basis in law for electronic publication. In that regard, they pointed out that the Electronic Notification Ordinance (see paragraphs 23-25 above) did not determine where electronic notifications were to be published and did not clarify whether or not the Provincial Executive would opt for this method of publication for all their (draft) decisions. The applicants also submitted that they had provided screenshots showing that the notifications of the draft decision and the actual decision had been published not on the Gelderland provincial website, as indicated by the Government, but on an entirely different website.", "35. The applicants submitted, furthermore, that the restriction of their right of access to a court had not served a legitimate aim. Electronic publication of notifications made the Government less accessible for citizens and thus had the opposite effect to that aimed for.", "36. Lastly, the applicants argued that in general there was no proportionality between the complete abandonment of publication of notifications on paper and the aim pursued by the Government. Instead of completely abandoning notifications in local or national newspapers, less far-reaching measures were conceivable to facilitate easier and faster communication between citizens and the administrative authorities. In the specific circumstances of the present case, the restriction had thus also been disproportionate.", "(b) The Government", "37. The Government argued that the right of access to a court had not been limited, because the rules governing the procedure that applied to legal remedies were intended to ensure the proper administration of justice and compliance with the principle of legal certainty. Pursuant to the legal framework in force, the notification of both the draft and the final decision had been published on the provincial website and had provided relevant information relating, inter alia, to the possibilities for submitting views and lodging an appeal. Given the high level of computer ownership and Internet penetration in the Netherlands – in 2013, according to the national statistical office, Statistics Netherlands ( Centraal Bureau voor de Statistiek ), 92.8% of citizens over the age of 12 had had access to the Internet – electronic publication could reach a far larger audience than publication in a local or national newspaper or on official notice boards. While it was true that the Internet did not provide 100% coverage, the same held true for local newspapers or notices posted at provincial offices.", "38. Even if publishing notifications exclusively on the Internet were to be considered as a limitation of the right of access to a court, this means of publication did not impair the very essence of the right, for the reasons set out in the previous paragraph. It also pursued a legitimate aim in that it ensured easier and faster communication between citizens and administrative authorities. In that context the Government were of the opinion that electronic communication between citizens and administrative authorities could contribute substantially to ensuring more accessible and more effective governance. Furthermore, electronic publication complied with the requirement of proportionality, both in general and in the instant case. While it did not differ from other means of publication in that there was always a risk of information not being seen by everyone or not being seen in time, electronic publication actually offered particular advantages, as it allowed citizens to access notifications at any time and from almost anywhere. People who did not have an Internet connection at home could access the Internet in public spaces, such as provincial or municipal offices or libraries.", "39. As regards the present case, the Government submitted that it had been foreseeable for the applicants that notifications of decisions of the Gelderland Provincial Executive would be published solely on the Internet. Since 2011 the Province of Gelderland had exclusively used electronic publication to notify decisions, and this new method of publication had been made public. The notification of the adoption of the Electronic Notification Ordinance had been published in the Official Gazette and the Gelderland Provincial Bulletin (see paragraph 24 above). The Government further explained that until 2016 all publications had appeared on the Gelderland provincial website. As regards the applicant foundation, the Government noted that it could not be considered a vulnerable party without access to the Internet and that, in order to be informed of decisions affecting its living area, it only needed to monitor the electronic publication of notifications by the municipality of Heerde, the Province of Gelderland and the District Water Board ( waterschap ).", "40. Finally, the Government described a number of subsequent developments in the Netherlands. Since 2016 all notifications had been published on the national governmental website, which provided information on services for persons and businesses, official publications and national, local and regional legislation. It also offered an alert service for notifications of administrative authorities’ activities to which citizens could subscribe.", "(c) The third-party intervener", "41. The third-party intervener APEDANICA – an NGO set up in Madrid in 1992 which strives to improve citizens’ lives across Europe and the Americas as regards their relationship with information and communication technology and to safeguard them against dangers brought about by misuse of such technologies – submitted that digitalisation, in principle, improved the participation of citizens in decision ‑ making. However, according to this NGO, the results concerning e-participation in the Netherlands were unsatisfactory. In that context APEDANICA drew attention to the fact that although not all citizens in the Netherlands had Internet access, nor were they legally obliged to have such access, the Government published legally binding decisions on the Internet without also using other non ‑ electronic means.", "The Court’s assessment", "(a) General principles", "42. The relevant principles concerning the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – were summarised in the case of Naït-Liman v. Switzerland ([GC], no. 51357/07, §§ 112-16, 15 March 2018).", "43. The Court has held that the right of access to court under Article 6 § 1 of the Convention entails the entitlement to receive adequate notification of administrative and judicial decisions, which is of particular importance in cases where an appeal may be sought within a specified time ‑ limit (see, mutatis mutandis, Šild v. Slovenia (dec.), no. 59284/08, § 30, 17 September 2013).", "44. According to the Court’s established case-law, however, the right of access to a court may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, those limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 of the Convention if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Naït-Liman, cited above, §§ 114-15). The Court has further held that the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Zubac v. Croatia [GC], no. 40160/12, § 98, 5 April 2018).", "45. The task of the Court is not to review the relevant law and practice in abstracto, but to determine whether the manner in which the law and practice were applied to or affected an applicant amounted to a denial of access to a court in the circumstances of the case (see, amongst other authorities, Zavodnik v. Slovenia, no. 53723/13, § 74, 21 May 2015). Its role in cases such as the present is to determine whether the applicants were able to count on a coherent system that struck a fair balance between the authorities’ interests and their own. The Court must ascertain whether the applicants had a clear, practical and effective opportunity to challenge the administrative act concerned (see Geffre v. France (dec.), no. 51307/99, ECHR 2003 ‑ I (extracts), and Lay Lay Company Limited v. Malta, no. 30633/11, § 56, 23 July 2013).", "(b) Application of those principles in the present case", "46. The Court notes that notification of both the intention of the Provincial Executive to issue a new permit to the motocross association and of its decision to that effect was given solely by electronic means. It was possible for interested parties within the meaning of Section 1:2(1) of the General Administrative Law Act (see paragraph 17 above) to lodge an appeal against that decision, provided they had first submitted their views on the draft decision (see paragraph 19 above). Both the submission of views and the lodging of an appeal were subject to a time-limit (see paragraphs 9-10 above).", "47. While it is not for the Court to determine the manner in which notifications of the type at issue are to be published, it follows from the abovementioned principles that where an appeal lies against a decision by an administrative authority which may be to the detriment of directly affected third parties, a system needs to be in place enabling those parties to take cognisance of such a decision in a timely fashion. This requires that the decision, or relevant information about it, be made available in a pre ‑ determined and publicised manner that is easily accessible to all potentially directly affected third parties. Provided sufficient safeguards are in place to achieve such accessibility, it falls in principle within the State’s margin of appreciation to opt for a system of publication solely by electronic means.", "48. Turning to the facts of the present case, the Court finds, firstly, that the Provincial Executive’s use of electronic means for publishing notifications was sufficiently coherent and clear for the purpose of allowing third parties to become aware of decisions that could potentially directly affect them. Thus, at the relevant time, a statutory provision – section 2(1) of the Electronic Notification Ordinance – provided for the possibility of notifying the Provincial Executive’s (draft) decisions solely by electronic means (see paragraph 25 above). The notification of the adoption of the Ordinance had been published in the Official Gazette, and the text of the Ordinance had been published in the Gelderland Provincial Bulletin as well as on the provincial website (see paragraph 24 above). Moreover, the Electronic Notification Ordinance codified a practice which had been in place since 1 October 2011, and to which the attention of the public had been drawn by means of advertisements in local newspapers at the time (see paragraph 23 above).", "49. It is further noted that the text of the Electronic Notification Ordinance did not explicitly indicate where notifications were to be published online; however, the explanatory notes to the Ordinance stated that notifications could be published on the Gelderland provincial website (see paragraph 23 above) and, as submitted by the Government (see paragraph 39 above), notifications of the type at issue had indeed been published on that website until 2016. Although the applicants disputed, both at the domestic level and before this Court, whether the notifications of the draft decision and of the actual decision had been published on the provincial website (see paragraphs 11 and 34 above), the Court notes that the Administrative Judicial Division had found it sufficiently established, in the light of the arguments and evidence submitted to it, that the notifications had been published on that website (see paragraph 16 above). In this connection the Court reiterates that, in accordance with Article 19 of the Convention, its sole duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact allegedly committed by a national court or to substitute its own assessment for that of the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Accordingly, the Court cannot question the assessment of the domestic courts on this issue unless there is clear evidence of arbitrariness, of which there is no appearance in the instant case (see, among many other authorities, Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 89, ECHR 2007 ‑ I, and Kononov v. Latvia [GC], no. 36376/04, § 189, ECHR 2010 ).", "50. The Court accepts the Government’s submission that electronic communication between the administrative authorities and citizens may contribute to the aim of a more accessible and better functioning administration (see paragraph 38 above). It must ascertain whether, given the facts of the case, a fair balance was struck between, on the one hand, the interest of the community as a whole in having a more modern and efficient administration and, on the other hand, the interests of the applicants.", "51. The Court observes that, under Dutch law, notifications that are addressed to specific individuals may only be published solely by electronic means when the individuals concerned have indicated that they can be adequately reached in that manner (see section 2 (14)(1), quoted in paragraph 21 above). Given that decisions of administrative authorities may, in addition, potentially concern a large number of interested parties who it may not be possible to identify in advance, the Court agrees with the Government that electronic notification of administrative authorities’ decisions by electronic means may enable a large proportion of the general public to become acquainted with those decisions. In that regard, the Court observes that Dutch law specifies that restricting the publication of notifications that are not addressed to specific individuals exclusively by electronic means is only permitted when a statutory basis exists for it (see section 2 (14)(2), also quoted paragraph 21 above).", "52. The Court considers that it must nevertheless be borne in mind that a practice of notifying the public solely by electronic means of decisions that may potentially affect them and against which they may wish to object or appeal runs the risk of not reaching citizens who do not have access to the Internet or who are computer illiterate. It can, however, not be overlooked that in 2013 the Internet penetration rate in the Netherlands was high, with more than 92 percent of citizens over the age of 12 having access to it (see paragraph 37 above). Moreover, the applicants in the present case have not argued that they themselves did not have access to a computer or to the Internet or that they were computer illiterate and that they were, for that or those reasons, unable to find the (draft) decisions online (see, in contrast, Zavodnik, cited above, § 79). In those circumstances, the Court is not persuaded by the applicants’ argument to the effect that publishing the notifications of the draft decision and the decision in a free local newspaper would have provided better safeguards of reaching potentially affected parties than publishing on the Gelderland provincial website (see paragraph 33 above). In that context it notes once more that notifications of this type have already been published solely by electronic means since 1 October 2011, and that this practice was publicised in local newspapers at the time of its introduction (see paragraph 23 above). The fact that this announcement had apparently escaped the applicants’ attention supports the Government’s contention that publications in local newspapers also do not constitute an infallible method of reaching every potentially affected party (see paragraph 37 above). The Court considers that it was not unrealistic to expect the applicants to consult the provincial website regularly for notifications of (draft) decisions that might affect them (see, mutatis mutandis and to converse effect, Zavodnik, cited above, § 80).", "53. In the present case, the Court is therefore satisfied that the system of electronic publication used by the Gelderland Provincial Executive constituted a coherent system that struck a fair balance between the interests of the community as a whole and the applicants. The applicants have not put forward any arguments that would allow the Court to conclude that they were not afforded a clear, practical and effective opportunity to comment on the draft decision and to challenge the decision given by the Provincial Executive. In the light of all the circumstances of the case and the safeguards identified, the Court finds that the national authorities did not exceed the margin of appreciation afforded to the State under the Convention (see paragraph 47 above) and that the applicants have not suffered a disproportionate restriction of their right of access to a court.", "54. There has accordingly been no violation of Article 6 § 1 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "55. The applicants complained that publishing the notifications exclusively by electronic means had been in breach of Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "56. The Government submitted that the applicants had not complied with the requirement of exhaustion of domestic remedies as they had failed to submit any views on the draft decision and had lodged their appeal against the decision out of time. They argued that in order to meet the requirements of Article 35 § 1 of the Convention, an applicant must comply with the applicable rules and procedures of domestic law.", "57. The applicants argued that in the national proceedings they had implicitly relied on the protection of Article 8 and had thus exhausted domestic remedies.", "58. The Court considers that it is not necessary to examine whether Article 8 of the Convention applies to the present case as this complaint is in any event inadmissible for the following reasons.", "59. The Court reiterates that under Article 35 of the Convention, it may only deal with applications after all domestic remedies have been exhausted (see, for a recollection of the general principles in this respect, Vučković and Others v. Serbia [GC] (preliminary objection), nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). According to its consistent case-law, that condition is not satisfied if a remedy has been declared inadmissible for failure to comply with a formal requirement (see Barbara Wiśniewska v. Poland, no. 9072/02, § 76, 29 November 2011, and Ben Salah Adraqui and Dhaime v. Spain (dec.), no. 45023/98, 27 April 2000).", "60. The Court observes that the applicants’ appeal to the Administrative Jurisdiction Division was declared inadmissible for having been lodged out of time (see paragraph 16 above). The applicants thus failed to comply with the formal requirements for introducing a relevant remedy concerning their complaint under Article 8, which they then brought before this Court. Accordingly, the Government’s objection of failure to exhaust domestic remedies must be upheld.", "61. It follows that this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.", "ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "62. Lastly, the applicants complained that, as regards their complaint under Article 6, they had not had an effective remedy within the meaning of Article 13 of the Convention, which provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "63. The Court reiterates that where the right claimed is a civil right, the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by those of Article 6 § 1 (see, among other authorities, British-American Tobacco Company Ltd v. the Netherlands, 20 November 1995, § 89, Series A no. 331, and Berger-Krall and Others v. Slovenia, no. 14717/04, § 327, 12 June 2014 ). Consequently, it is not necessary to examine separately the admissibility and merits of the complaint under Article 13." ]

[ "I. The Circumstances of the case", "A. The Enichem agricoltura factory", "12. The applicants all live in the town of Manfredonia (Foggia). Approximately one kilometre away is the Enichem agricoltura company’s chemical factory, which lies within the municipality of Monte Sant’Angelo.", "13. In 1988 the factory, which produced fertilisers and caprolactam (a chemical compound producing, by a process of polycondensation, a polyamide used in the manufacture of synthetic fibres such as nylon), was classified as “high risk” according to the criteria set out in Presidential Decree no. 175 of 18 May 1988 (“ DPR 175/88”), which transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population.", "14. The applicants said that in the course of its production cycle the factory released large quantities of inflammable gas – a process which could have led to explosive chemical reactions, releasing highly toxic substances – and sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides, benzoic acid and above all, arsenic trioxide. These assertions have not been disputed by the Government.", "15. Accidents due to malfunctioning have already occurred in the past, the most serious one on 26 September 1976 when the scrubbing tower for the ammonia synthesis gases exploded, allowing several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, to escape. One hundred and fifty people were admitted to hospital with acute arsenic poisoning.", "16. In a report of 8 December 1988 a committee of technical experts appointed by Manfredonia District Council established that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia. It was noted in the report that the factory had refused to allow the committee to carry out an inspection and that the results of a study by the factory itself showed that the emission treatment equipment was inadequate and the environmental-impact assessment incomplete.", "17. In 1989 the factory restricted its activity to the production of fertilisers, and it was accordingly still classified as a dangerous factory covered by DPR 175/88. In 1993 the Ministry for the Environment issued an order jointly with the Ministry of Health prescribing measures to be taken by the factory to improve the safety of the ongoing fertiliser production, and of caprolactam production if that was resumed (see paragraph 27 below).", "18. In 1994 the factory permanently stopped producing fertiliser. Only a thermoelectric power station and plant for the treatment of feed and waste water continued to operate.", "B. The criminal proceedings", "1. Before the Foggia Magistrates’ Court", "19. On 13 November 1985 420 residents of Manfredonia (including the applicants) applied to the Foggia Magistrates’ Court ( pretore ) complaining that the air had been polluted by emissions of unknown chemical composition and toxicity from the factory. Criminal proceedings were brought against seven directors of the impugned company for offences relating to pollution caused by emissions from the factory and to non-compliance with a number of environmental protection regulations.", "Judgment was given on 16 July 1991. Most of the defendants escaped a prison sentence, either because the charges were covered by an amnesty or were time-barred, or because they had paid an immediate fine ( oblazione ). Only two directors were sentenced to five months’ imprisonment and a fine of two million lire and ordered to pay damages to the civil parties, for having had waste dumps built without prior permission, contrary to the relevant provisions of DPR 915/82 on waste disposal.", "2. In the Bari Court of Appeal", "20. On appeals by the two directors who had been convicted and by the Public Electricity Company ( ENEL ) and Manfredonia District Council, which had both joined the proceedings as civil parties claiming damages, the Bari Court of Appeal acquitted the directors on 29 April 1992 on the ground that the offence had not been made out but upheld the remainder of the impugned decision. The court held that the errors which the directors were alleged to have made in the management of the waste were in fact attributable to delays and uncertainties in the adoption and interpretation, particularly by the Region of Apulia, of regulations implementing DPR 915/82. Consequently, there was no damage that gave rise to a claim for compensation.", "C. The approach of the authorities concerned", "21. A joint committee of representatives from the State and the Region of Apulia was set up within the Italian Ministry for the Environment to implement the Seveso directive.", "The committee ordered a technical survey, which was carried out by a panel established by an order of the Minister for the Environment of 19 June 1989. The panel had the following remit:", "(a) to report on whether the factory conformed to environmental regulations as regards discharge of waste water, treatment of liquid and solid waste, emissions of gases, and noise pollution; to report on safety aspects; and to check what authorisations had been granted to the factory to those ends;", "(b) to report on whether the factory site was compatible with its environment, having particular regard to the problems of protecting the health of the local population and the fauna and flora and of making appropriate use of the land;", "(c) to suggest what action should be taken to obtain any missing data required to complete the reports under (a) and (b) above and to identify measures to be taken to protect the environment.", "22. On 6 July 1989 the factory submitted the safety report required by Article 5 of DPR 175/88.", "23. On 24 July 1989 the panel presented its report, which was sent to the State/Regional Joint Committee. The latter published its conclusions on 6 July 1990 and fixed 30 December 1990 as the date on which the report required by Article 18 of DPR 175/88 on the risk of major accidents should be submitted to the Minister for the Environment. It also recommended:", "(a) commissioning studies of the factory’s safety and compatibility with its environment, additional analyses of disaster scenarios and of the preparation and implementation of emergency procedures;", "(b) introducing a number of changes designed to reduce the atmospheric emissions drastically and to improve the treatment of waste water, making radical alterations to the production cycles for urea and nitrogen and carrying out studies on the pollution of the subsoil and on the hydrogeological structure of the factory site. These steps were to be taken within three years. The panel also referred to the need to solve the problems of liquid combustion and the reuse of sodium salts.", "The panel further called for a public industrial-pollution monitoring centre, to be set up by 30 December 1990, to carry out periodic checks on the factory’s practices in relation to public health and environmental protection and to act as an epidemiological observatory.", "24. On 20 June 1989 the problems relating to the operation of the factory were raised in a parliamentary question to the Minister for the Environment. On 7 November 1989, in the European Parliament, a question on the same point was put to the Commission of the European Communities. Replying to the latter question, the relevant Commissioner stated that (1) Enichem had sent the Italian Government the safety report requested pursuant to Article 5 of DPR 175/88; (2) on the basis of that report the Government had opened an investigation, as required by Article 18 of DPR 175/88 to check safety at the factory and, if appropriate, to identify any further safety measures needed; and (3) so far as the application of the Seveso directive was concerned, the Government had taken the requisite measures with regard to the factory.", "D. Steps taken to inform the local population", "25. Articles 11 and 17 of DPR 175/88 require the relevant mayor and prefect to inform local inhabitants of the hazards of the industrial activity concerned, the safety measures taken, the plans made for emergencies and the procedure to be followed in the event of an accident.", "26. On 2 October 1992 the Coordinating Committee for Industrial Safety Measures gave its opinion on the emergency plan that had been drawn up by the prefect of Foggia, in accordance with Article 17 § 1 of DPR 175/88. On 3 August 1993 the plan was sent to the relevant committee of the Civil Defence Department. In a letter of 12 August 1993 the under-secretary of the Civil Defence Department assured the prefect of Foggia that the plan would be submitted promptly to the Coordinating Committee for its opinion and expressed the hope that it could be put into effect as quickly as possible, given the sensitive issues raised by planning for emergencies.", "27. On 14 September 1993 the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the factory’s safety report of July 1989, as required by Article 19 of DPR 175/88. Those conclusions prescribed a number of improvements to be made to the installations, both in relation to fertiliser production and in the event of resumed caprolactam production (see paragraph 17 above) and provided the prefect with instructions as to the emergency plan for which he was responsible and the measures required for informing the local population under Article 17 of DPR 175/88.", "In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available.", "III. work by the Council of Europe", "34. Of particular relevance among the various Council of Europe documents in the field under consideration in the present case is Parliamentary Assembly Resolution 1087 (1996) on the consequences of the Chernobyl disaster, which was adopted on 26 April 1996 (at the 16th Sitting). Referring not only to the risks associated with the production and use of nuclear energy in the civil sector but also to other matters, it states “public access to clear and full information ... must be viewed as a basic human right”." ]

[ "II. Relevant domestic law", "28. As regards the obligation to inform the public on matters of environmental and public safety, Article 5 of DPR 175/88 provides that any undertaking carrying on dangerous activities must submit a report to the Ministry for the Environment and the Ministry of Health giving details of, among other things, its activities, emergency procedures in the event of a major accident, the persons responsible for carrying these procedures out, and the measures taken by the undertaking to reduce the risks to the environment and public health. Article 21 of DPR 175/88 provides that anyone in charge of an undertaking who fails to submit the report required by Article 5 may be sentenced to up to one year’s imprisonment.", "29. At the material time Article 11 § 3 of DPR 175/88 provided that mayors were under a duty to inform the public of", "(a) the nature of the production process;", "(b) the nature and quantities of the substances involved;", "(c) the potential risks to employees and workers in the factory, members of the public and the environment;", "(d) the conclusions on the safety reports submitted by the factory pursuant to Article 5 and on any additional measures referred to in Article 19; and", "(e) the safety measures and procedures to be followed in the event of an accident.", "Article 11 § 2 provided that, in order to protect industrial secrets, any person responsible for examining reports or information from the undertakings concerned was forbidden to disclose any information that he had thereby obtained.", "30. Article 11 § 1 provided that data and information on industrial activities obtained pursuant to DPR 175/88 could be used only for the purposes for which they had been requested.", "That provision was partly amended by Legislative Decree no. 461 of 8 November 1995. Paragraph 2 of that decree provides for an exception to the ban on disclosure of industrial secrets in the case of certain information, namely that contained in an information sheet which the undertaking must complete and send to the Ministry for the Environment and the regional or inter-regional technical committee. Mayors’ duties with regard to informing the public are unchanged and now appear in paragraph 4.", "31. Article 17 of DPR 175/88 also lays certain obligations on the prefect in the matter of providing information. In particular, paragraph 1 of that provision (now paragraph 1 bis ) requires the prefect to draw up an emergency plan based on the information supplied by the factory and the Coordinating Committee for Industrial Safety Measures. That plan must be sent to the Ministry of the Interior and the Civil Defence Department. Paragraph 2 goes on to provide that, after drawing up the emergency plan, the prefect must adequately inform the population concerned of the hazards of the activities, the safety measures taken to prevent a major accident, the emergency procedures planned for the area outside the factory should a major accident occur and the procedures to be followed in the event of an accident. The amendments made to this Article in the aforementioned legislative decree include a new paragraph 1, to the effect that the Civil Defence Department must establish reference criteria for emergency planning and the adoption of measures for the supply of information to the public by the prefect, and repeal of paragraph 3, which provided that the information referred to in paragraph 2 had to be sent to the Ministry for the Environment, the Ministry of Health and the regional authorities concerned.", "32. Section 14(3) of Law no. 349 of 8 July 1986, by which the Ministry for the Environment in Italy was created and the first legal provisions on environmental damage introduced, provides that everyone has a right of access to the information on the state of the environment which is, in accordance with the law, available at the offices of the administrative authorities and may obtain a copy on defrayment of the authorities’ costs.", "33. In a judgment (no. 476) of 21 November 1991 the Council of Administrative Law for Sicily ( Consiglio di Giustizia amministrativa per la Regione siciliana – which in Sicily replaces the Supreme Administrative Court) held that the concept of “information on the state of the environment” included any information about human beings’ physical surroundings and concerning matters of some interest to the community. On the basis of those criteria, the Council of Administrative Law held that a district council was not justified in refusing to allow a private individual to obtain a copy of analyses of the fitness of water in the district in question for use as drinking water.", "PROCEEDINGS BEFORE THE COMMISSION", "35. The applicants applied to the Commission on 18 October 1988. Relying on Article 2 of the Convention, they submitted that the lack of practical measures, in particular to reduce pollution levels and major-accident hazards arising out of the factory’s operation, infringed their right to respect for their lives and physical integrity. They also complained that the relevant authorities’ failure to inform the public about the hazards and about the procedures to be followed in the event of a major accident, as required in particular by Article 11 § 3 and Article 17 § 2 of Presidential Decree no. 175/88, infringed their right to freedom of information as guaranteed by Article 10.", "36. On 6 July 1995 the Commission declared the application (no. 14967/89) admissible as to the complaint under Article 10 and inadmissible as to the remainder. In its report of 29 June 1996 (Article 31), it expressed the opinion by twenty-one votes to eight that there had been a breach of that Article. The full text of the Commission’s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [4].", "FINAL SUBMISSIONS TO THE COURT", "37. The Government concluded their memorial by inviting the Court, as their primary submission, to dismiss the application for failure to exhaust domestic remedies and, in the alternative, to hold that there had been no violation of Article 10 of the Convention.", "38. At the hearing the applicants’ counsel asked the Court to hold that there had been a violation of Articles 10, 8 and 2 of the Convention and to award her clients just satisfaction.", "as to the law", "I. scope of the case", "39. Before the Commission the applicants made two complaints. Firstly, the authorities had not taken appropriate action to reduce the risk of pollution by the Enichem agricoltura chemical factory at Manfredonia (“the factory”) and to avoid the risk of major accidents; that situation, they asserted, infringed their right to life and physical integrity as guaranteed by Article 2 of the Convention. Secondly, the Italian State had failed to take steps to provide information about the risks and how to proceed in the event of a major accident, as they were required to do by Articles 11 § 3 and 17 § 2 of Presidential Decree no. 175/88 (“ DPR 175/88”); as a result the applicants considered that there had been a breach of their right to freedom of information laid down in Article 10 of the Convention.", "40. On 6 July 1995 the Commission, by a majority vote, upheld the Government’s preliminary objection that domestic remedies had not been exhausted in respect of the first issue and declared the remainder of the application admissible, “without prejudging the merits”.", "In its report of 25 June 1996 it considered the case under Article 10 of the Convention and decided that that provision was applicable and had been breached since, at least during the period between the issue of DPR 175/88 in May 1988 and the cessation of fertiliser production in 1994, the relevant authorities were under an obligation to take the necessary steps so that the applicants, who were living in a high-risk area, could “receive adequate information on issues concerning the protection of their environment”. Eight members of the Commission expressed their disagreement in three dissenting opinions, two of which pointed to the possibility of a different approach to the case, on the basis that Article 8 of the Convention was applicable to the complaint declared admissible.", "41. In their memorial to the Court and at the hearing the applicants relied also on Articles 8 and 2 of the Convention, contending that the failure to provide them with the relevant information had infringed their right to respect for their private and family life and their right to life.", "42. Before the Court the Delegate of the Commission merely reiterated the conclusion set out in the report (that there had been a violation of Article 10), whereas the Government argued that the complaints under Articles 8 and 2 fell outside the compass of the case as delimited by the decision on admissibility.", "It is therefore necessary to determine as a preliminary issue the extent of the Court’s jurisdiction ratione materiae.", "43. The Court observes, firstly, that its jurisdiction “extend[s] to all cases concerning the interpretation and application of [the] Convention which are referred to it in accordance with Article 48” (see Article 45 of the Convention as amended in respect of States which have ratified Protocol No. 9) and that “In the event of dispute as to whether the Court has jurisdiction, the matter [is] settled by the decision of the Court” (Article 49).", "44. Secondly, it reiterates that since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 13, § 29).", "The Court has full jurisdiction only within the scope of the “case”, which is determined by the decision on the admissibility of the application. Within the compass thus delimited, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 19, § 56).", "45. In the instant case the grounds based on Articles 8 and 2 were not expressly set out in the application or the applicants’ initial memorials lodged in the proceedings before the Commission. Clearly, however, those grounds were closely connected with the one pleaded, namely that giving information to the applicants, all of whom lived barely a kilometre from the factory, could have had a bearing on their private and family life and their physical integrity.", "46. Having regard to the foregoing and to the Commission’s decision on admissibility, the Court holds that it has jurisdiction to consider the case under Articles 8 and 2 of the Convention as well as under Article 10.", "II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "47. The applicants alleged that they were the victims of a violation of Article 10 of the Convention, which provides:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”", "The alleged breach resulted from the authorities’ failure to take steps to ensure that the public were informed of the risks and of what was to be done in the event of an accident connected with the factory’s operation.", "A. The Government’s preliminary objection", "48. As they had done before the Commission, the Government raised a preliminary objection of failure to exhaust domestic remedies, to which there were two limbs.", "In the first limb the Government argued that it was possible to make an urgent application under Article 700 of the Code of Civil Procedure. If the applicants had feared imminent danger in connection with the operation of the factory, they could and should have sought a court order affording them instant protection of their rights. The Government acknowledged their failure to provide examples of similar cases in which Article 700 had been applied, but said that, regardless of whether that provision could be used against a public body, it could certainly be used against a factory which, as in the present case, had not produced a safety report as required by Article 5 of DPR 175/88 (see paragraph 28 above).", "The second limb concerned the fact that the applicants had not complained to a criminal court about the lack of relevant information from, in particular, the factory, whereas such omissions constituted an offence under Article 21 of DPR 175/88.", "49. The Court considers that neither remedy would have enabled the applicants to achieve their aim.", "Even though the Government were unable to prove that an urgent application would have been effective as environmental cases had still not given rise to any authoritative judicial decision in the relevant area, Article 700 of the Code of Civil Procedure would have been a practicable remedy if the applicants’ complaint had concerned a failure to take measures designed to reduce or eliminate pollution; indeed, that was the Commission’s conclusion when it ruled on the admissibility of the application (see paragraph 40 above). In reality, the complaint in the instant case was that information about the risks and about what to do in the event of an accident had not been provided, whereas an urgent application would probably have resulted in the factory’s operation being suspended.", "As to instituting criminal proceedings, the safety report was submitted by the factory on 6 July 1989 (see paragraph 22 above) and if the applicants had lodged a criminal complaint they would at most have secured the conviction of the factory’s managers, but certainly not the communication of any information.", "The objection must therefore be dismissed.", "B. Merits of the complaint", "50. It remains to be determined whether Article 10 of the Convention is applicable and, if so, whether it has been infringed.", "51. In the Government’s submission, that provision merely guaranteed freedom to receive information without hindrance by States; it did not impose any positive obligation. That was shown by the fact that Resolution 1087 (1996) of the Council of Europe’s Parliamentary Assembly and Directive 90/313/EEC of the Council of the European Communities on freedom of access to information on the environment spoke merely of access, not a right, to information. If a positive obligation to provide information existed, it would be “extremely difficult to implement” because of the need to determine how and when the information was to be disclosed, which authorities were responsible for disclosing it and who was to receive it.", "52. Like the applicants, the Commission was of the opinion that the provision of information to the public was now one of the essential means of protecting the well-being and health of the local population in situations in which the environment was at risk. Consequently, the words “This right shall include freedom ... to receive … information...” in paragraph 1 of Article 10 had to be construed as conferring an actual right to receive information, in particular from the relevant authorities, on members of local populations who had been or might be affected by an industrial or other activity representing a threat to the environment.", "Article 10 imposed on States not just a duty to make available information to the public on environmental matters, a requirement with which Italian law already appeared to comply, by virtue of section 14(3) of Law no. 349 in particular, but also a positive obligation to collect, process and disseminate such information, which by its nature could not otherwise come to the knowledge of the public. The protection afforded by Article 10 therefore had a preventive function with respect to potential violations of the Convention in the event of serious damage to the environment and Article 10 came into play even before any direct infringement of other fundamental rights, such as the right to life or to respect for private and family life, occurred.", "53. The Court does not subscribe to that view. In cases concerning restrictions on freedom of the press it has on a number of occasions recognised that the public has a right to receive information as a corollary of the specific function of journalists, which is to impart information and ideas on matters of public interest (see, among other authorities, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, § 59 (b), and the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 27, § 63). The facts of the present case are, however, clearly distinguishable from those of the aforementioned cases since the applicants complained of a failure in the system set up pursuant to DPR 175/88, which had transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population. Although the prefect of Foggia prepared the emergency plan on the basis of the report submitted by the factory and the plan was sent to the Civil Defence Department on 3 August 1993, the applicants have yet to receive the relevant information (see paragraphs 26 and 27 above).", "The Court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, “basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him” (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 29, § 74). That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion.", "54. In conclusion, Article 10 is not applicable in the instant case.", "55. In the light of what was said in paragraph 45 above, the case falls to be considered under Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "56. The applicants, relying on the same facts, maintained before the Court that they had been the victims of a violation of Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "57. The Court’s task is to determine whether Article 8 is applicable and, if so, whether it has been infringed.", "The Court notes, firstly, that all the applicants live at Manfredonia, approximately a kilometre away from the factory, which, owing to its production of fertilisers and caprolactam, was classified as being high-risk in 1988, pursuant to the criteria laid down in DPR 175/88.", "In the course of its production cycle the factory released large quantities of inflammable gas and other toxic substances, including arsenic trioxide. Moreover, in 1976, following the explosion of the scrubbing tower for the ammonia synthesis gases, several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, escaped and 150 people had to be hospitalised on account of acute arsenic poisoning.", "In addition, in its report of 8 December 1988, a committee of technical experts appointed by the Manfredonia District Council said in particular that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia (see paragraphs 14–16 above).", "The direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable.", "58. The Court considers that Italy cannot be said to have “interfered” with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, p. 17, § 32).", "In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right to respect for their private and family life as guaranteed by Article 8 (see the Lόpez Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55).", "59. On 14 September 1993, pursuant to Article 19 of DPR 175/88, the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the safety report submitted by the factory in July 1989. Those conclusions prescribed improvements to be made to the installations, both in relation to current fertiliser production and in the event of resumed caprolactam production, and provided the prefect with instructions as to the emergency plan – that he had drawn up in 1992 – and the measures required for informing the local population under Article 17 of DPR 175/88.", "In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available (see paragraph 27 above).", "60. The Court reiterates that severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.", "The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants’ right to respect for their private and family life, in breach of Article 8 of the Convention.", "There has consequently been a violation of that provision.", "IV. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION", "61. Referring to the fact that workers from the factory had died of cancer, the applicants also argued that the failure to provide the information in issue had infringed their right to life as guaranteed by Article 2 of the Convention, which provides:", "“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "62. Having regard to its conclusion that there has been a violation of Article 8, the Court finds it unnecessary to consider the case under Article 2 also.", "V. application of article 50 of the convention", "63. Article 50 of the Convention provides:", "“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "64. The applicants sought compensation for “biological” damage; they claimed 20,000,000,000 Italian lire (ITL).", "65. In the Government’s submission, the applicants had not shown that they had sustained any damage and had not even described it in detail. If the Court were to hold that there had been non-pecuniary damage, a finding of a violation would constitute sufficient just satisfaction for it.", "66. The Delegate of the Commission invited the Court to award the applicants compensation that was adequate and proportionate to the considerable damage they had suffered. He suggested a sum of ITL 100,000,000 for each applicant.", "67. The Court considers that the applicants did not show that they had sustained any pecuniary damage as a result of the lack of information of which they complained. As to the rest, it holds that the applicants undoubtedly suffered non-pecuniary damage and awards them ITL 10,000,000 each.", "B. Costs and expenses", "68. The applicants were granted legal aid for the proceedings before the Court in the amount of 16,304 French francs; however, at the end of the hearing their counsel lodged an application with the registry for an additional sum in respect of her fees.", "69. Neither the Government nor the Delegate of the Commission expressed a view on the matter.", "70. Having regard to the amount already granted in legal aid and the lateness of the application (see Rules 39 § 1 and 52 § 1 of Rules of Court B), the Court dismisses the claim.", "C. Other claims", "71. Lastly, the applicants sought an order from the Court requiring the respondent State to decontaminate the entire industrial estate concerned, to carry out an epidemiological study of the area and the local population and to undertake an inquiry to identify the possible serious effects on residents most exposed to substances believed to be carcinogenic.", "72. The Government submitted that those claims were inadmissible.", "73. The Delegate of the Commission expressed the view that a thorough and efficient inquiry by the national authorities together with the publication and communication to the applicants of a full, accurate report on all the relevant aspects of the factory’s operation over the period in question, including the harm actually caused to the environment and people’s health, in addition to the payment of just satisfaction, would meet the obligation laid down in Article 53 of the Convention.", "74. The Court notes that the Convention does not empower it to accede to such a request. It reiterates that it is for the State to choose the means to be used in its domestic legal system in order to comply with the provisions of the Convention or to redress the situation that has given rise to the violation of the Convention (see, mutatis mutandis, the following judgments: Zanghì v. Italy of 19 February 1991, Series A no. 194-C, p. 48, § 26, Demicoli v. Malta of 27 August 1991, Series A no. 210, p. 19, § 45, and Yağcı and Sargın v. Turkey of 8 June 1995, Series A no. 319-A, p. 24, § 81).", "D. Default interest", "75. According to the information available to the Court, the statutory rate of interest applicable in Italy at the date of adoption of the present judgment is 5% per annum." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1938 and currently lives in Lancashire.", "10. In 1953 he joined the British army at 15 years of age. He served with the Royal Engineers between February 1954 and April 1968, when he was discharged for reasons unrelated to the present application.", "In 1981 he was diagnosed as suffering from hypertension and late onset bronchial asthma and in 1989 he was found to have high blood pressure and chronic obstructive airways disease (bronchitis – COAD). He has not worked since 1992 or thereabouts and is registered as an invalid.", "A. The Porton Down tests", "11. The Chemical and Biological Defence Establishment at Porton Down (“Porton Down”) was established during the First World War in order to conduct research into chemical weapons with a view to advancing the protection of the United Kingdom's armed forces against such weapons. The research included tests of gases on humans as well as on animals. Servicemen who participated in the tests were paid extra wages.", "12. The applicant participated in such tests at Porton Down. While there was some debate as to whether he attended in 1962, it was not disputed that he did so in July 1963. His service medical records contained no record of any tests at Porton Down.", "1. The tests in 1962 at Porton Down", "13. The applicant alleged as follows. In the spring of 1962 he was invited to Porton Down; he was medically examined on arrival; he was asked on three or four occasions to enter a sealed and unventilated room, where he was seated and strapped to a chair; over a period of about six hours, drops of mustard gas were applied to patches of tissue which were then taped to his skin; he was told that, if he was unlucky, he might suffer temporary pain or discomfort but otherwise he was not given any, or any proper, warning about the possible consequences of the tests for his health; once the tests were finished he returned to his unit; there was no further medical examination after he left Porton Down. He relied on a memorandum and file note of 13 November 1989 ( see paragraph 24 below) and on the conclusions in this respect of 14 January 2004 of the Pensions Appeal Tribunal (“ the PAT” – see paragraph 63 below) to substantiate his participation in tests in 1962.", "14. While the Government did not deny that participation, they pointed to a number of matters that appeared to militate against such a conclusion: the summary and alphabetical record books did not refer to his attendance in 1962 but only to his attendance in 1963; there was no documentary evidence at all of the 1962 tests whereas certain records existed of his 1963 tests; and if the PAT had accepted his participation in the 1962 tests, this was based solely on his recollections.", "2. The tests in 1963 at Porton Down", "15. The nerve gas (known as “ G-agent ” or “GF”) test is described in the relevant records as “exposure to single- breath GF”. The applicant alleged that he was told before the test that the experiment “could not harm a mouse”; that he was placed in an air-tight, glass-partitioned cubicle containing a face mask, the mask was placed over his mouth and nose, the fitting was checked and the chamber was sealed; that a loudspeaker informed him that the test was about to begin and to inhale normally; that he felt an immediate tightening of the chest muscles and lungs which wore off after the end of the test; and that blood samples were taken at regular intervals during the following twenty-four hours. The Government submitted that diluted GF vapours were put into a gas chamber and, as the name of the test suggested, volunteers took a single breath of air with calculated doses of GF gas through a tube connected to that chamber, they held their breath for two seconds and then exhaled.", "16. The other test involved mustard gas and was described in the records as “H sensitivity and penetration”. According to the applicant, it followed the same format as that in 1962.", "The Government added the following detail: the mustard gas test was designed to test the performance of protective clothing and was carried out in two parts. The first was a sensitivity test to determine an individual's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant's upper arm. If after twenty-four hours the test subject had a small red mark, he or she was deemed too sensitive and did not participate any further in the tests. On the other hand, if the participant was not demonstrably sensitive, the second part consisted of putting a drop of dilute mustard gas solution on three samples of protective clothing left in place on the participant's body and the skin under the clothing was examined after six and then twenty-four hours. The participants were monitored before and after the tests. The rooms were properly ventilated, the dosages were small and safe and the tests were carefully planned and controlled.", "B. The applicant's search for relevant records", "17. From 1981 the applicant was medically treated for breathlessness and high blood pressure and by 1987 these problems had significantly worsened. He began to search for his Porton Down records through what he described as “medical” and “political” channels.", "1. The “ medical” route", "18. In response to his doctor's enquiry, in late 1987 the Ministry of Defence ( MOD ) supplied his doctor with his service medical records on a “medical in confidence” basis. Those records did not refer to the applicant's Porton Down tests.", "19. In a letter of 14 November 1989, Porton Down responded to another enquiry from his doctor. The letter was sent on a “medical in confidence” basis and confirmed the applicant's participation in a GF gas test in July 1963. That GF test had been preceded and succeeded by a full medical examination which revealed no abnormality. The letter also referred (inaccurately, as it later emerged – see paragraph 36 below) to seven blood tests conducted after the GF test and to their results and confirmed that “peak flow meter measurements” had also been taken from the applicant and that “breath- holding tests”, a clothing penetration study (apparently, although not expressly noted, the mustard gas tests) and a battery of personality tests were performed. The results of these tests were not included in the letter and no other records supporting the statements made in the letter were enclosed. His doctor's stamp on it indicates that he decided to tell the applicant that all was normal. The applicant persuaded his doctor to show him the letter in 1994.", "20. By a letter dated 14 December 1989, a consultant informed the applicant's doctor that he doubted that the applicant's bronchial asthma was caused by his exposure to nerve gas. Further tests were to be carried out.", "21. A letter from Dr H. (a professor of environmental toxicology at the University of Leeds and later the court-appointed expert witness in the PAT proceedings – see paragraphs 42-68 below) dated 5 December 1994 to the applicant stated that full and detailed records were required to judge the long - term effects of his participation in the tests and that a long- term epidemiological study would have been useful either to establish that there were long- term effects or to reassure test participants that there were none. His letter of 10 July 1996 repeated his view as to the need for such a study.", "22. An internal Porton Down memorandum of 24 November 1997 noted that certain blood - test figures given in the letter to the applicant's doctor of 14 November 1989 were inaccurate. In addition, it was considered that the applicant's description of the tests was roughly consistent with the procedures in the 1960s. While there were no obvious gaps in the 1960s records, it could not be said that the records were complete: the applicant could have attended in 1962 and his name could have been omitted or incorrectly recorded due to a clerical error.", "2. The “political” route", "23. Inter alia, the applicant carried out a sit-in hunger strike at Porton Down, held a press conference in the House of Commons and requested members of parliament to put parliamentary questions.", "24. Between 11 and 14 November 1989, the applicant went on hunger strike outside Porton Down. On 13 November 1989 he spoke with the Secretary of Porton Down. The latter noted in a memorandum of that date that the applicant's description of the tests was strong enough to indicate that he had been there and he recommended a further search of the records. He also recorded in a file note (of the same date) that the applicant's description of his visits to Porton Down in 1962 and 1963 left him with a level of confidence that he had been a volunteer there on both occasions. This led to the letter of 14 November 1989 to the applicant's doctor ( see paragraph 19 above).", "25. In January 1994 the applicant formed the Porton Down Volunteers Association with the object of seeking recognition and redress for test participants. The association has over 300 members to date.", "26. By a letter dated 26 January 1994, the Chief Executive of Porton Down answered, at the request of the Secretary of State for Defence, a series of questions raised by a member of parliament about chemical and biological warfare testing. The Chief Executive's letter described the test procedure, stating that participants were given a medical examination before and after the tests and recalled for check-ups “from time to time”. It was pointed out that there was no evidence that the health of participants had deteriorated because of their test participation. On 22 June 1994 the Chief Executive confirmed the well-established policy of the MOD of releasing service medical records to a veteran's doctor on a “medical in confidence” basis. The Chief Executive's letter of 7 March 1995 (in response to a parliamentary question to the Minister of State for Defence) noted that the tests did not include any plan for long- term systematic monitoring of participants: any monitoring thereafter was purely ad hoc and sporadic.", "27. On 2 February 1994 the applicant wrote to the MOD requesting copies of his medical records and of reports on the relevant tests. The reply of 9 March 1994 from Porton Down recalled the MOD policy of release on a “medical in confidence” basis. The applicant's doctor had been provided with information in 1989 on this basis. It was “entirely up to your own doctor how much or how little of this information he conveys to you”. Further queries from the applicant led to a similar response from Porton Down by letter dated 20 April 1994.", "28. On 12 December 1994 Lord Henley stated in the House of Lords that the MOD would continue to send veterans to their doctors and would release medical records as appropriate. Information was provided to doctors to allow proper diagnosis and “would be released, if necessary”. He repeated that there was no evidence over the previous forty years that test participants had suffered harm to their health.", "29. In response to a series of parliamentary questions put to the Secretary of State for Defence as to the necessity for a public inquiry, the government's representative replied on 28 February 1995 that there was no evidence that any test participants had suffered any long-term damage to their health in the past four decades. Similar responses as to the lack of evidence of harm to the test participants were given by the Minister of State for Defence in Parliament on 4 April and 2 May 1995 in response to questions concerning the instigation of a study into the long-term health effects of exposure to chemical and biological substances.", "30. On 25 April 1995 the applicant and the Labour Party defence spokesman took part in a press conference on the question of Porton Down volunteers and their requirements.", "31. Following a meeting between them, on 2 December 1997 the Minister of State for Defence wrote to the applicant. He referred to the concerns of the applicant (and other test participants) that information about the tests was being withheld. He confirmed that this was not the case but rather reflected “less than thorough” record-keeping than would be currently expected. Henceforth all volunteers would be able to obtain access to all the information held on them at Porton Down and steps would be taken to declassify reports so as to make that information more accessible.", "Certain copies of test documents were enclosed: (a) the alphabetical record book which recorded the applicant's attendance at Porton Down between 13 and 19 July 1963; (b) the summary record book which referred to the two tests carried out on the applicant involving GF and mustard gas and listed the monitoring procedures that were to be carried out on the applicant (chest X -rays, peak flow meter tests, “ x 3 x alcohol ” quiz, breath- holding tests and blood tests); and (c) a report entitled “Effects of Inhaled GF on Man” which described the single breath GF test and contained an analysis of the results of the tests carried out on fifty-six participants, believed to include the applicant's test. It was indicated that these documents were available to any test participant who requested them.", "This was the first material obtained by the applicant about his participation in the tests.", "The letter went on to note that much GF-related research work had already been published in open literature or was in the Public Record Office. The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published between 1957 and 1987. There was no evidence to date to suggest that any volunteer had suffered long - term adverse effects. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical so none had been or would be carried out.", "32. In a letter dated 31 August 1999 to the PAT, Porton Down indicated that it was well acquainted with the applicant, having received numerous communications from him and from members of parliament.", "33. By a letter dated 3 May 2001, Porton Down informed the applicant that it had discovered some old laboratory notebooks that included information about the 1963 tests: one book included some previously unavailable details of the mustard patch tests. A pre-exposure chest X -ray and the associated report card were also now available. The applicant was to contact Porton Down if he wanted to see this material or obtain copies.", "C. Records submitted by the Government in the present application", "34. As well as those disclosed with the Minister of State's letter of 2 December 1997, the following documents were also submitted to the Court.", "1. With the Government's observations of 9 March 1998", "35. The Government indicated that these were all the relevant records that could be traced: (a) an extract from a laboratory record of results of personality and intelligence tests; (b) extracts from laboratory records of GF blood tests – seven blood samples were taken from the applicant; and (c) an explanation of the GF blood - test results.", "2. With the Government's observations of 5 April 2001", "36. The Government corrected their previous explanations of the seven blood samples (see paragraph 19 above): one was taken on 13 July 1963, a second one prior to the applicant's exposure to GF and the remaining five were taken later. They also corrected other errors relating to information provided in their earlier observations about those tests including the following: “the reference to'25 milligrams of GF [vapour per kilogram of body weight]'appears to have been a typographical error. In fact, calculated doses of GF ranged from 0.16 to 2.84 microgrammes per kilogramme of body weight. ” They also disclosed documents recently discovered following a further search: (a) the applicant's pre-exposure X -ray and its associated report card (see paragraph 33 above); ( b) a report dated August 1942 which described the manner in which the sensitivity tests to mustard gas were performed and entitled “Technique of the Physiological Experiments Carried Out on the Human Subjects at [Porton Down]”; and (c) extracts from a laboratory notebook entitled “Overgarment Tests. Mustard on Men”, relating to mid-July 1963 and referring to the applicant.", "D. The applicant's domestic proceedings", "1. Application for a service pension", "37. On 10 June 1991 the applicant claimed a service pension on the grounds of “hypertension/breathing problems” resulting from the Porton Down tests (and, in addition, from his radiation exposure on Christmas Island during the relevant nuclear tests there). The Department of Social Security ( DSS) obtained copies of his service and civilian medical records together with a report from his doctor, which confirmed that he suffered from hypertension, COAD and late onset bronchial asthma. On 28 January 1992 the Secretary of State rejected his claim for a service pension as there was no causal link demonstrated between the tests and those medical conditions. The applicant did not pursue an appeal at that stage.", "2. Certificate under section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”)", "38. The applicant consulted solicitors in 1994 and obtained legal aid for proceedings. By a letter dated 14 November 1994 to the Secretary of State, his solicitors threatened proceedings, alleging, inter alia, negligence, assault and breach of statutory duty on the part of the MOD, and demanding the release of all medical and laboratory records in the possession of the Secretary of State or of Porton Down as regards the test periods in 1962 and 1963, failing which the applicant would apply to the High Court for pre-action discovery. The applicant's representatives met with MOD representatives in early January 1995 on a “without prejudice” basis and by a letter dated 5 June 1995 requested confirmation from the MOD as to whether a certificate would be issued under section 10 of the 1947 Act (“a section 10 certificate”).", "39. By a letter dated 4 July 1995 to the applicant's solicitors, the claims section of the MOD wrote as follows:", "“War Pensions Agency has informed me that a section 10 certificate in respect of acute bronchitis (1963), a bruised knee and loss of hearing will be regarded as attributable to service and a section 10 certificate will be issued. The other ailments for which [the applicant] claimed a war pension have not been regarded as attributable to service.”", "40. On 3 August 1995 a section 10 certificate was signed by the Secretary of State:", "“In so far as the personal injury of [ the applicant ] is due to anything suffered as a result of his service in the Army between 16 February 1954 and 2 April 1968, I hereby certify that his suffering that thing has been treated as attributable to service for the purpose of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, which relates to disablement or death of members of the Army.”", "41. By a letter dated 8 August 1995, the Treasury Solicitor provided a copy of the section 10 certificate to the applicant's representatives.", "3. The Pensions Appeal Tribunals (“ the PAT”)", "42. Following the judgment of this Court in McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III) and the Government's disclosure of certain documents in their observations in the present case (on 9 March 1998), the applicant requested an adjournment of the present application in order to pursue an appeal to the PAT and, in particular, disclosure of documents under Rule 6 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (“the PAT Rules”). The present application was adjourned.", "43. On 1 June 1998 he lodged his PAT appeal. Since the War Pensions Agency (“ the WPA” – a specialised agency of the Department of Social Security) clarified that a further form was required, on 8 November 1998 the applicant re- lodged the appeal.", "44. In February 1999 the applicant received his “ Statement of Case ”. He obtained two extensions of the time-limit for the submission of his “answer” to the Statement of Case (to take advice from an expert chemical pathologist on the documents already disclosed and on those which were also to be requested during the PAT appeal and to consider the intervening observations of the Government in the present application) and he indicated that he would be making an application under Rule 6(1) of the PAT Rules.", "45. On 30 July 1999 his answer was submitted to the WPA along with a letter which noted that the answer included an application for disclosure of documents under Rule 6(1) of the PAT Rules : paragraph 18 of the answer set out a list of seventeen categories of document required by him under that rule.", "46. On 10 August 1999 the WPA responded by pointing out that enquiries were being made to obtain all the information requested under Rule 6(1) of the PAT Rules. Once received, the WPA would ask for the agreement of the President of the PAT to disclose it.", "47. On the same day the WPA wrote to Porton Down enclosing a copy of the applicant's Rule 6 request and asking for the information as soon as possible so that the agreement of the President of the PAT could be obtained.", "48. On 14 March and 13 April 2000 the WPA sent the supplementary Statement of Case (now incorporating the supplemental medical evidence) to the applicant and to the PAT, respectively.", "49. On 3 August 2000 the President of the PAT responded to the applicant's enquiry, indicating that his case had not been listed as it awaited production of further documentary evidence and the Secretary of State's response. However, since the Rule 6 request should not have been made in the applicant's answer to the Statement of Case, that request had just come to light. The applicant was to confirm to the President if he intended paragraph 18 of his answer to constitute his Rule 6 request and, if so, the President would be grateful to receive any observations that would assist his consideration of the relevance of the documents to the appeal issues. The applicant was also to identify the State department to which a Rule 6 direction should be addressed.", "50. On 9 November 2000 the applicant confirmed to the President of the PAT that paragraph 18 of his answer did indeed constitute his Rule 6 request and he made detailed submissions on the matters requested by the President.", "51. By a letter dated 13 November 2000, the President of the PAT requested the applicant to submit a draft direction and attend a hearing on it since he was concerned that the wording of some parts of the Rule 6 request appeared to be ambiguous and lacking in clarity. The applicant submitted a draft direction ( essentially listing those documents already included in paragraph 18 of his answer ).", "52. By an order dated 1 February 2001, the President of the PAT directed, pursuant to Rule 6(1) of the PAT Rules, disclosure of the scheduled documents by the Secretary of State since the documents “were likely to be relevant to the issues to be determined in the appeal ”.", "53. On 6 July 2001 the Secretary of State responded to the direction of the President of the PAT. It was marked “medical in confidence”. It referred to the documents already submitted by the Government to this Court ( see paragraphs 34-36 above). The Secretary of State was unable to give a definitive response to the request for the fifth category of document required (namely, “any scientific or medical reports, whether published or prepared for internal use by Porton Down, the [MOD] or other government departments or agencies of the volunteer studies or experiments in Porton Down between 1957 and 1968 which were similar or related to the studies or experiments in which [the applicant] was involved”). A full and careful review had been undertaken and was a time-consuming process. Many of the documents identified as being possibly relevant to the request were classified. The Secretary of State had asked for an urgent review of the classification to be undertaken and, once the review was completed, he would let the PAT have his full response. Otherwise the Secretary of State provided various explanations of the documents already submitted by the Government to this Court and details of the precise dates on which the applicant would have participated in the tests, of the levels of exposure to gases and of various headings and abbreviations in the disclosed documents. The only documents (additional to those already submitted to this Court) disclosed to the PAT were the applicant's service and payment records, the latter of which included a payment for attendance for a week at Porton Down in July 1963.", "54. The MOD's letter was passed to the applicant on 25 July 2001. By a letter dated 19 July 2002, the applicant wrote to the PAT apologising for not having responded and explaining the reasons for the delay.", "55. By a letter dated 23 August 2002, the MOD disclosed documents concerning the above-described fifth category: two reports entitled “The feasibility of performing follow- up studies of the health of volunteers attending [Porton Down]” and “The single-breath administration of Sarin”, from which individual names had been blanked out. The feasibility report acknowledged that the records held at Porton Down prior to the late 1970s generally consisted of the name, service number and age of participants at the date of testing but were not “sufficient to allow either a comprehensive morbidity study or mortality study to proceed”. While a study could be carried out on post-1976 test participants, “such a study would be of very limited value and may only serve to draw attention to [Porton Down's] interest in possible long - term health problems experienced by volunteers”. The feasibility report concluded that a comprehensive follow- up study of all volunteers was “impractical”. Porton Down's library catalogue had also mentioned a document entitled “Unique papers relating to early exposure of volunteers to GD [O-Pinacolyl methylphosphonoflouidate, commonly known as Soman] and GF and DM [diphenylaminearsine chloride, commonly known as Adamsite]”. However, a copy of this document could not be located. A letter of 20 August 2002 was also enclosed which certified that nine of the requested documents were “in the nature of departmental minutes or records” and would not therefore be disclosed (Rule 6(1) of the PAT Rules).", "56. A hearing was fixed for 3 October 2002. On 27 September 2002 the applicant was obliged to request an adjournment since his counsel had advised that further questions needed to be put to Dr H. On 30 September 2002 the PAT declined to adjourn, indicating that it was unlikely Dr H. could or would prepare a report.", "57. On 2 October 2002 the MOD wrote to the PAT and the applicant. While nine documents had been previously certified as non-disclosable, ( letter of 23 August 2002 – see paragraph 55 above), seven of those nine documents could now be disclosed. The MOD had “had the opportunity of re-examining the documents ... with a view to assessing whether [they] could be the subject of voluntary disclosure ... in an effort to ensure that everything that can be disclosed has been disclosed and so as to ensure the maximum openness and the maximum assistance to the [PAT]”. Certain blocking out had been done on some disclosed documents to protect the identities of staff involved and to excise irrelevant material. Two documents could still not be disclosed : the first did not appear “to contain anything of relevance” to the applicant's tests and, in any event, “contained information which remains security sensitive and is not properly subject to voluntary disclosure on security grounds”; and the second required permission from the United States before it could be disclosed.", "58. The appeal was scheduled for 3 October 2002. The applicant applied for an adjournment supported by the Veterans Agency (the successor of the WPA – “ the VA”). The PAT decision (delivered on 7 October 2002 ) recorded as follows:", "“The [PAT] are deeply disturbed that this application has proved necessary as a result of the [applicant's] advisers'failure to consider documents disclosed over a year ago, in a timely fashion.", "However, since the [VA] also appear to be without documentation and there is confusion by the [applicant] as to whether he also wishes to appeal for hypertension, we have reluctantly decided to allow the adjournment.", "It is highly unsatisfactory that Court resources have been wasted in this way. To prevent this happening in the future the Tribunal intend to exercise some control over the ongoing progress of the appeal.”", "The PAT was to clarify with the MOD the status of certain classified documents and the extent to which they could be released to the public, and directed the MOD to provide, by 21 October 2002, disclosure of further documents. The MOD, the VA and the applicant were to notify the PAT by 18 November 2002 of the questions and documents it wanted Dr H. to examine. It was intended that the PAT would add its own questions and submit a composite questionnaire to Dr H. who would report in response to the PAT. The applicant was also to confirm his position as regards the hypertension appeal by 28 October 2002.", "59. On 21 October 2002, the MOD disclosed to the PAT three declassified documents. These were forwarded by the PAT to the applicant by a letter dated 8 November 2002, accompanied by a warning that the MOD had released the documents for the purpose of the appeal and that no information in them was to be used for any other purpose without the consent of the MOD. By a letter dated 25 October 2002, the applicant confirmed that his appeal had been intended to cover hypertension also, he explained the reasons for his confusion and he requested an extension of time to so appeal. A hypertension appeal form was lodged with the PAT on 5 December 2002.", "60. By a letter dated 3 December 2002, the PAT wrote to Dr H. enclosing the documents disclosed by the MOD ( at that point ) with two sets of questions (prepared by the applicant and the medical member of the PAT). By a letter dated 19 February 2003, Dr H. provided the PAT with a report. The applicant having noted that Dr H. had omitted to respond to the PAT questions, Dr H. did so in a supplemental report sent to the PAT under cover of a letter dated 14 May 2003.", "61. In a document dated 14 October 2003, the MOD submitted its comments on Dr H .'s reports. On 16 October 2003 the VA submitted a supplementary Statement of Case.", "62. The PAT appeal hearing took place on 23 October 2003. It allowed the hypertension appeal to be heard out of time but, once it became clear that the VA had not processed the appeal documentation filed by the applicant, the PAT reluctantly granted the MOD an adjournment to allow the VA time to “properly consider all the evidential material and prepare a reasoned medical opinion”. The COAD appeal was, however, dismissed.", "63. On 14 January 2004 the PAT delivered its written decision. As to the facts, the PAT accepted that the applicant had undergone tests for mustard gas “some time in 1962 as well as the documented tests in July 1963” despite the fact that there was no reference in his service records or in other research records to the 1962 test. The PAT also found “disquieting” the “difficulties” experienced by the applicant in obtaining the records which were produced to the PAT. The PAT also established the following facts:", "“1. We find that [the applicant] suffered no long - term respiratory effect from skin contact with mustard gas following both tests in 1962 and 1963.", "2. We find that [the applicant] was administered only small doses of mustard gas and GF gas which would have resulted in minimal exposure to mustard gas by off - gassing and a limited and transitory reaction to the GF gas. Although no records relating to doses exist, the mustard gas tests were designed to test the suitability of military clothing to exposure and were not a gas test per se. Furthermore, after a fatality at Porton Down in 1953, safeguards were put in place to ensure that volunteers were only exposed to safe dosages.", "3. The compelling weight of the evidence is that [the applicant] did not receive, in any of the tests, dosages likely to have long- term effects as described in the research papers. In particular, the [PAT expert], although accepting the possibility that given further research through a long- term follow - up study a link might be found, concludes that there is no evidence to link [the applicant's] exposure to either gases with his present condition. We accept [the PAT expert's] conclusion that, given the limited doses and [the applicant's] minimal immediate reactions, this would rule out a link between the tests and the claimed conditions.", "4. We particularly rely on [Dr H .'s] expert report. He has analysed the specific data relevant to [the applicant's] case and considered the conditions for which he is claiming in relation to that specific data. The research papers relied on by the [applicant], although of some evidential value, are very general and speculative. We therefore prefer the evidence, and the conclusions reached by [Dr H .] in his reports. ”", "The PAT also accepted, as a matter of law, that it was sufficient to show that the proved service event was only one of the causes of the condition even if there were other contributory factors. However, it stated :", "“2. We do not accept that the lack of possible evidence of other follow-up tests is sufficient to constitute reliable evidence.", "3. We find that there is some reliable evidence surrounding the Porton Down tests for which [the applicant] volunteered. However, this evidence tends, if anything, to support the view that there is in fact no link between those tests and [the applicant's] current conditions. The test of reasonable doubt is not therefore met.", "4. There is no reliable evidence to suggest a causal link between the tests for either mustard gas or GF gas and the claimed condition.", "5. [The PAT expert's] views that'he cannot exclude the possibility'of a link between exposure to GF and/or mustard gas and the claimed condition, does not meet the'reasonable doubt'test. Furthermore, he'rules out'exposure to GF as a cause and deems it'unlikely'that mustard gas is a cause.", "6. Finally, [the applicant's counsel] invites us to allow the appeal for reasons which can be summarised as'general fairness'. The [PAT] does not have legislative or discretionary power to do so. The decision of the [PAT] is to disallow the appeal for [COAD].”", "64. On 4 February 2004 the applicant applied to the PAT for leave to appeal to the High Court (on the COAD matter) and for a stay of the hypertension appeal then pending before the PAT. On 26 April 2004 leave was refused, the PAT's reserved decision being delivered on 28 April 2004.", "65. On 11 May 2004 the applicant applied for leave to appeal to the High Court. On 13 July 2004 leave was granted.", "66. The applicant's appeal notice and supporting skeleton argument were submitted on 10 August 2004. The appeal was listed to be heard on 7 October 2004.", "67. On 8 October 2004 the High Court allowed the appeal and referred the matter back to the PAT for a further hearing.", "68. On 7 March 2005 a directions hearing was held before the PAT. It ordered the hypertension and COAD appeals to be heard together and mutual disclosure of any further documents relevant to the appeal by 18 April 2005. On the latter date the Treasury Solicitor produced a “schedule of disclosure” listing and disclosing eleven documents: apart from three items, the applicant had not seen them before. The Treasury Solicitor maintained that disclosure of most of the documents (including two sets of minutes of meetings which Rule 6 specifies can be withheld) was not obligatory as they were of marginal relevance, noted that all documents had been downgraded to “unclassified” and indicated that the MOD would endeavour to produce the annexes referred to in certain documents.", "E. Information services and health studies", "69. The armed forces have, since 1998, put in place a service to deal with enquiries from Porton Down test participants (“the 1998 Scheme”). The relevant information pamphlet noted that participants could request their test records, that a search would be carried out for references to that person and for additional evidence of actual procedures, that a summary would be provided and that, if the person wanted to go to Porton Down, he or she could obtain the actual records. While the pamphlet noted that reasonably comprehensive records had existed since 1942, individuals had to accept that old records in some cases were very sparse, that record keeping in years gone by was not up to current standards and that in certain cases a person's attendance might not even have been marked. The pamphlet claimed that no participant was worse off after the Porton Down tests.", "70. In 2001 the Porton Down Volunteers Medical Assessment Programme was established by the MOD to investigate health concerns of Porton Down test participants. The study involved 111 participants but no control group. The report, published in April 2004, was entitled “Clinical Findings in 111 Ex-Porton Down Volunteers”. It noted that over 20,000 had participated in the tests since Porton Down's establishment in 1916 and that 3, 000 had participated in nerve gas tests and 6, 000 in mustard gas tests, with some servicemen having been exposed to both. It concluded that:", "“On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age.”", "71. From July 2002 the MOD funded “an initial pilot research project” on mortality and cancer incidence among Porton Down test participants. It compared 500 participants with a control group of 500 other servicemen and the decision was taken that a full-scale epidemiological study should be undertaken. By mid-2003 this had begun and it was expected to take about two years to complete.", "72. Further to the death of Aircraftsman Maddison in May 1953 after being exposed to Sarin gas (also referred to as GB gas, a nerve agent related to GF), a coroner's inquest was held and recorded “death by misadventure”. An application was brought for a fresh inquest alleging, inter alia, that incomplete evidence had been brought before the coroner and in November 2002 the Court of Appeal ordered a fresh inquest. It concluded on 15 November 2004 with the jury finding that the cause of Mr Maddison's death was the “application of a nerve agent in a non-therapeutic experiment”. Judicial review proceedings appear to be pending.", "In or around 2004- 05 a non-governmental organisation (“Porton Down Veterans”) discovered during searches in the Public Record Office two letters of May and August 1953 containing legal advice from the Treasury Solicitor to the MOD about Mr Maddison's case and about section 10 of the 1947 Act. That organisation sent this material to the Veterans Policy Unit – Legacy Health Issues of the MOD on 7 February 2005. The Treasury Solicitor's letter of August 1953 noted as follows:", "“When the case was referred to me previously I did consider the relevance of section 10 of the Crown Proceedings Act 1947 but I came to the conclusion that it had no application. On the information before me I am still of that opinion. Subsection (1) of that section, which deals with injuries caused by acts of members of the Armed Forces, can have no application since the administration of the GB gas to ... Maddison was (so I understand) carried out by [civilian] personnel and not by any member of the Armed Forces. Subsection (2) also seems inapplicable. [It] provides that no proceedings in tort are to lie against the Crown for death or personal injury due to anything suffered by a member of the Armed Forces if that thing is suffered by him'in consequence of the nature or condition of any equipment or supplies used for the purposes of the Armed Forces of the Crown'. As I understand the facts of this case, GB gas cannot be said to be a'supply used for the purposes of the Armed Forces'at all, it being purely an experimental substance and one which has never been used for the purposes of the Armed Forces. If this is correct, then section 10 of the 1947 Act cannot protect the Crown or the Minister from liability.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Civil actions by servicemen against the Crown", "1. Prior to 1947", "73. It was a well-established and unqualified common- law rule that the Crown was neither directly nor vicariously liable in tort.", "74. The rule was counterbalanced in several ways. Actions against the errant serviceman would be permitted in which case the Crown would invariably (if the defendant was acting in the course of his duty) accept responsibility for any damages awarded. In cases where the individual author of the injury could not be identified, a nominee defendant would be appointed to enable the claim to proceed. In addition, from 1919 a serviceman injured in the course of war service was entitled to a disability pension and his spouse to a pension. The scope of these entitlements later widened to include disability or death caused by injury attributable to any service in the armed forces (war service or not). A feature of these successive schemes was that entitlement to a pension did not depend on proof of fault against the Crown.", "75. Further to strong criticism of the Crown's position as litigant, in the 1920s legislation was envisaged that would make the Crown liable in tort. The 1924 terms of reference of the drafting committee were to prepare a bill to provide, inter alia, that the Crown should become liable to be sued in tort. Clause 11 of the draft bill produced in 1927 (and never adopted) provided, under the heading “Substantive Rights”, that : “Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort. ” This provision was made subject to clause 29(1 ) ( g) which read:", "“Except as therein otherwise expressly provided, nothing in this Act shall–", "...", "(g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid ... ”", "2. The Crown Proceedings Act 1947 (“the 1947 Act”)", "76. The 1947 Act made far-reaching changes, both substantive and procedural, to the Crown's liability to be sued.", "77. The 1947 Act was divided into four parts: Part I “Substantive law” (sections 1-12 of the Act); Part II “Jurisdiction and procedure”; Part III “Judgments and execution”; and Part IV “ Miscellaneous”.", "78. Section 1 provides for the Crown to be sued as of right rather than by a petition of right sanctioned by Royal fiat.", "79. Section 2 of the 1947 Act provides:", "“ Liability of the Crown in tort", "(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject :–", "(a) in respect of torts committed by its servants or agents;", "(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and", "(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:", "Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate.”", "80. Members of the armed forces were to be treated differently. If they died or were injured in the course of their duties, the Crown could not be sued in tort once the Secretary of State certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension. In particular, section 10 of the 1947 Act was entitled “Provisions relating to the armed forces” and provided as follows:", "“(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if –", "(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown; and", "(b) the [Secretary of State] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:", "Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.", "(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if –", "(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and", "(b) the [ Secretary of State] certifies as mentioned in the preceding subsection;", "nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.", "(3) ... a Secretary of State, if satisfied that it is the fact : –", "(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or", "(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;", "may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies.”", "The words in section 2 of the 1947 Act “subject to the provisions of this Act” rendered section 2 subject to the provisions of section 10 of the 1947 Act.", "3. The Crown Proceedings (Armed Forces) Act 1987 (“the 1987 Act”)", "81. The exception contained in section 10 of the 1947 Act was removed by the 1987 Act. This removal was not retrospective. Accordingly, after 1987 claims in tort by members of the armed forces (or their estates) who had died or been injured as a result of conduct that took place prior to 1987 could not proceed if the Secretary of State issued the relevant certificate. The reasons the law was prospective only were explained by the member of parliament introducing the bill as follows (Hansard, HC, 13 February 1987, col. 572):", "“Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would be clearly wrong to impose retrospective liability on a serviceman for past actions, even if the Crown, his employer, were to stand behind him. That would involve individuals who are alleged to be guilty of negligence over the years being brought to book in a court of law for actions [for] which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, ... where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants? How could there be a logical cut-off point for considering claims either by the [MOD] or the courts. How could those whose claims which fell on the wrong side of the arbitrary line be satisfied? How could the [MOD], and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available?", "Those are practical questions to which, sadly, there are no ready answers. For that reason, I believe that the only reasonable course of action is to legislate for the repeal of section 10 from the date of enactment.”", "4. The Limitation Act 1980", "82. Section 11 of this Act provides that any action for damages for personal injury must be brought within three years of the cause of action arising.", "B. The case of Matthews v. Ministry of Defence", "83. Mr Matthews served in the Royal Navy between 1955 and 1968. In 2001 he brought proceedings in negligence against the MOD (alleging the MOD's negligence and breach of statutory duty and its vicarious liability for the negligence and breach of duty of his fellow servicemen) claiming that he had suffered personal injury as a result of his exposure to asbestos fibres and dust while performing his duties as a serviceman.", "1. The High Court's judgment of 22 January 2002 ( [2002] EWHC 13 (QB) )", "84. On the preliminary issue of whether the MOD could be sued under section 10 of the 1947 Act, the High Court found that provision to be incompatible with Article 6 § 1 of the Convention.", "85. In deciding whether section 10 amounted to a procedural or substantive limitation on his rights, the High Court considered that the issue turned on whether a section 10 certificate extinguished not only Mr Matthews'right to sue for damages but also his primary right arising from the Crown's duty of care:", "“If, after the passing of the 1947 Act, he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, section 10 merely extinguished his secondary right to claim damages for its breach, and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right. ”", "In concluding that section 10 amounted to a procedural bar to an existing right of action in tort and in thus finding Article 6 applicable, the High Court relied, in particular, on Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (judgment of 10 July 1998, Reports 1998-IV) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI).", "86. The limitation therefore had to be subjected to a proportionality test. In this respect, the High Court concluded that the disadvantages of a pension scheme were such that access to it was an “exceptionally, indeed an unacceptably” high price to pay for the advantage of not having to prove fault, an advantage that would only apply when the question of the fault of the other party was in doubt. Neither was the High Court convinced that the choice to repeal the 1947 Act prospectively was proportionate, considering, inter alia, that the finding of liability for conduct that was not a basis for liability when it took place was far less pernicious a solution than denying proper damages to persons injured as a result of negligence.", "2. The Court of Appeal's judgment of 29 May 2002 ( [2002] EWCA Civ 773 )", "87. The Court of Appeal allowed the MOD's appeal. Section 10 had a substantive and not procedural effect and the High Court's reliance on Fogarty, cited above, was mistaken. The Master of the Rolls stated that:", "“The requirement in section 10 for a certificate from the Secretary of State as a precondition to defeating a claimant's cause of action is an unusual one and not easily analysed, and it cannot be treated simply as an option to impose a procedural bar on the claim. ”", "88. In so finding, the Court of Appeal rejected the MOD's objection, based on Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 ‑ VIII ) and, more recently, R. v. Belgium (no. 33919/96, 27 February 2001), to the applicability of Article 6 § 1, the Court of Appeal finding that Pellegrin was concerned solely with “disputes raised by servants of the State over their conditions of service” whereas the proceedings before the Court of Appeal concerned the nature and effect of section 10 of the 1947 Act on a claim in tort against the MOD.", "3. The House of Lords'judgment of 23 February 2003 ( [2003] UKHL 4 )", "89. The applicant appealed, arguing that the Court of Appeal had ignored a clear principle established by Fogarty. The MOD did not pursue the Pellegrin argument.", "90. The House of Lords (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Walker of Gestingthorpe) unanimously rejected the appeal. The House of Lords considered the maintenance of the distinction between procedural and substantive limitations on access to a court to be a necessary one since Article 6 was concerned with procedural fairness and the integrity of a State's judicial system rather than with the substantive content of its national law. However, the House of Lords acknowledged the difficulty in tracing the borderline between the substantive and procedural, considering the Convention jurisprudence to be indicative of some difficulty in this respect. Drawing on the text, historical context, legislative intent and the actual operation of section 10 of the 1947 Act and, further, on a comprehensive analysis of the Convention jurisprudence and applicable principles, the House of Lords concluded that section 10 of the 1947 Act maintained the existing lack of liability in tort of the Crown to service personnel for injury suffered that was attributable to service and served to ease servicemen towards the no-fault pension option by taking away the need to prove attributability. It amounted therefore to a substantive limitation on the liability of the Crown in tort to servicemen for service injury to which Article 6 § 1 did not apply.", "91. Having reviewed the Convention jurisprudence, Lord Bingham noted that, whatever the difficulty in tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, an accurate analysis of a claimant's substantive rights in domestic law was, nonetheless, an essential first step towards deciding whether he had, for the purposes of the autonomous meaning given to the expression by the Convention, a “civil right” such as would engage Article 6.", "Lord Bingham went on to outline the historical evolution of section 10, considering it clear that there was no parliamentary intention to confer any substantive right to claim damages. “Few common- law rules were better-established or more unqualified”, he began, “than that which precluded any claim in tort against the Crown” and because “there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available”. Claims referred to as “exempted claims” against the Crown for damages for, inter alia, injury sustained by armed forces personnel while on duty were “absolutely barred”. When proposals for reform were put forward in the 1920s, “no cause of action was proposed in relation to the exempted claims”. When the Crown Proceedings Bill was introduced into Parliament in 1947 it again provided that the exempted claims should be “absolutely barred”, but those fulfilling the qualifying condition would be compensated by the award of a pension on a no-fault basis.", "When what was to become section 10(1) was amended uncontentiously in the House of Commons, the intention was not to alter the “essential thrust of the provision as previously drafted”. The object of the new certification procedure was to “ease the path of those denied any right to a common - law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the award of a pension”. Whereas the issue of a certificate under section 10(3) of the 1947 Act was discretionary as shown by the permissive “may”, no such permissive language applied to the issuance of a certificate under section 10(1)(b). “It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate as was the invariable practice of successive Secretaries of State over the next forty years. ” Although different language had been used over the years, “the English courts had consistently regarded section 10(1) as precluding any claim at common law”. It was in fact the “absolute nature of the exclusion imposed by section 10(1)” (coupled with the discrepancy, by 1987, between the value of a pension and of a claim for common- law damages) which fuelled the demand for the revocation of section 10 and led to the 1987 Act. In deciding whether section 10(1) imposed a procedural bar or denied any substantive right, regard had to be had to the practical realities and, in that respect, the Secretary of State's practice had been “uniform and unvarying” so that any practitioner would have advised Mr Matthews that a section 10 certificate was “bound to be issued”. Lord Bingham found Fogarty to be “categorically different” from Matthews and concluded, for reasons closely reflecting those of the Court of Appeal and of Lord Walker (see below), that the appeal was to be rejected.", "92. As regards the distinction between substantive and procedural bars to a judicial remedy, Lord Walker conducted a comprehensive analysis of the Convention jurisprudence, highlighting what he considered to be inconsistencies and the difficulties in applying it:", "“127. The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the Strasbourg jurisprudence on Article 6 § 1, but the cases do not speak with a single clear voice. That is hardly surprising. The distinction, although easy to grasp in extreme cases, becomes much more debatable close to the borderline, especially as different legal systems draw the line in different places ...", "...", "130. I have already referred to several of the most important Strasbourg cases, but it is useful to see how two contrasting themes have developed since the seminal Golder decision in 1975. Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant's access to the court, whether or not the restriction should be classified as procedural in nature. Others attach importance to the distinction between substance and procedure.", "131. The first case to note is Ashingdane v. the United Kingdom ... Section 141 (1) [of the Mental Health Act 1959] imposed substantive restrictions on his rights of action (requiring bad faith or negligence) and subsection (2) imposed a procedural restriction (the need for the Court's permission for the commencement of proceedings). The Commission ... agreed with the parties that'it is immaterial whether the measure is of a substantive or procedural character. It suffices to say that section 141 acted as an unwaivable bar, which effectively restricted the applicant's claim in tort'. But the Commission considered that the restrictions were not arbitrary or unreasonable, being intended to protect hospital staff from ill-founded or vexatious litigation. The Court ... took a similar view.", "132. In Pinder v. the United Kingdom ... (from which Ketterick and Dyer are not significantly different) the Commission took the view ... that section 10 of the 1947 Act brought about the substitution of a no-fault system of pension entitlement for the right to sue for damages, and that that removed the claimant's civil right:'It follows, therefore, that the State does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to “ a pressing social need ” as contended by the applicant .'However the Commission then ... referred to its report in Ashingdane and stated:'These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court, as in the Ashingdane case, but also in respect of a substantive immunity from liability as in the present case. The question, therefore, arises in the present context, whether section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant's substantive civil claims. '", "133. The Commission held that section 10 was not arbitrary or disproportionate ...", "134. Powell and Rayner v. the United Kingdom ... was concerned with the effect of section 76(1) of the Civil Aviation Act 1982 on persons complaining of noise from aircraft travelling to and from Heathrow Airport. Section 76(1) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances, and its flight was not in breach of the provisions of the Act or any order made under it. In unanimously rejecting the claimants'claim under Article 6 § 1 the European Court of Human Rights simply relied on the fact that the applicants had no substantive right to relief under English law. It rejected a subsidiary argument that the claimants'residuary entitlement to sue (in cases not excluded by section 6(1)) was illusory.", "135. The Court's approach in Fayed v. the United Kingdom ... was much less straightforward. ... The Court's discussion of the relevant principles contained ... the following passage ... :'Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. '", "136. It is hard to tell how far the last sentence of this passage goes. The Court then referred ... to the distinction between substantive and procedural restrictions:'It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy .'The Court did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of Article 8 (respect for private life), even though there was in fact no complaint under Article 8.", "137. In Stubbings v. the United Kingdom ... and Tinnelly & Sons Ltd v. the United Kingdom ..., the Court considered whether restrictions on access to the court (in section 2 of the Limitation Act 1980 and section 42 of the Fair Employment ( Northern Ireland ) Act 1976 respectively) were justifiable without adverting expressly to the distinction between substantive and procedural bars. In Waite and Kennedy v. Germany ..., the Commission ... described the immunity as merely a procedural bar, and as such requiring justification. The Court took the same view, regarding ... the claimants'access to some unspecified procedures for alternative dispute resolution as being a material factor.", "138. The two most recent cases are of particular importance. In Z [ and Others ] v. the United Kingdom ..., the Court ... held that there had been no breach of Article 6 § 1 in your Lordships'decision in X v. Bedfordshire County Council [1995] 2 AC 633 as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of five years while their suffering was known to the local authority (but they were not the subject of any care order). ... The whole of the Court's judgment on Article 6 § 1 ... merits careful study, but its essence appears from the following passages ... : ...'The Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in the Ashingdane judgment .'In reaching these conclusions the majority of the Court stated in plain terms that its decision in Osman had been based on a misunderstanding of the English law of negligence.", "139. Finally there is Fogarty v. the United Kingdom ... That case was decided about six months after Z and by a constitution of the Court several of whose members had sat (and some of whom had dissented) in Z. In Fogarty the Court repeated verbatim ... the passage from Fayed which I have already quoted. It rejected ... the United Kingdom's argument that because of the operation of State immunity the claimant did not have a substantive right under domestic law. The Court attached importance to the United States'ability to waive (in fact the judgment said'not choose to claim') immunity as indicating that the bar was procedural. Nevertheless, the Court concluded ... that:'measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity. '", "140. In trying to reconcile the inconsistencies in the Strasbourg jurisprudence it might be tempting to suppose that the Court's wide and rather speculative observations in Fayed (which were not its grounds for decision) marked a diversion which proved, in Z, to be a blind alley. But that explanation immediately runs into the difficulty that in Fogarty, six months after Z, the Court (constituted by many of the same judges) chose to repeat, word for word, the observations made in Fayed. The uncertain shadow of Osman still lies over this area of the law.", "141. Nevertheless [Mr Matthews'counsel] conceded that in order to succeed on the appeal, he had to satisfy your Lordships that section 10 of the 1947 Act constituted a procedural bar. He equated this task with satisfying your Lordships that Mr Matthews had at the commencement of his proceedings a cause of action against the [MOD], and that that cause of action was cut off (or defeated) by the [MOD's] invocation of the section 10 procedure. He treated this event as indistinguishable from the United States government's invocation, in Fogarty, of the defence of State immunity (to be precise, its decision not to waive State immunity). In each case, [Mr Matthews'counsel] argued, the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced.", "142. In my view, [Mr Matthews'counsel's] concession was rightly made. Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that Article 6 is, in principle, concerned with the procedural fairness and integrity of a State's judicial system, not with the substantive content of its national law. The notion that a State should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to Article 6 § 1, as the Commission said in Dyer ... (in a report, specifically dealing with section 10 of the 1947 Act, which has been referred to with approval by the Court in several later cases).", "143. In the circumstances [Mr Matthews'] argument clings ever more closely to the bare fact that Mr Matthews had a cause of action when he issued his claim form, and that his claim could not be struck out as hopeless unless and until the Secretary of State issued a certificate under section 10. But European human rights law is concerned, not with superficial appearances or verbal formulae, but with the realities of the situation ( Van Droogenbroeck v. Belgium ... ). [Mr Matthews'] argument does, with respect, ignore the realities of the situation. It is common ground that the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity (which may be by no means a foregone conclusion, especially in politically sensitive employment cases). The decision whether or not to waive immunity in Fogarty really was a decision about a procedural bar, but I am quite unpersuaded that it provides a parallel with this case. The fact is that section 10 of the 1947 Act did in very many cases before 1987, and still does in cases of latent injury sustained before 1987, substitute a no-fault system of compensation for a claim for damages. This was and is a matter of substantive law and the provision for an official certificate (in order to avoid or at least minimise the risk of inconsistent decisions on causation) does not alter that. Section 10(1)(b), taken on its own, is a provision for the protection of persons with claims against the [MOD]. I respectfully agree with Lord Bingham's analysis of the legislative history of the 1947 Act and with the conclusions which he draws from it.", "144. In these circumstances I do not consider it necessary or desirable to attempt to assess whether section 10, if tested as a procedural bar, would meet the test of proportionality. There would be serious arguments either way and as it is not necessary to express a view I prefer not to do so.”", "93. Lord Hoffmann agreed with Lord Walker's reasoning and conclusions and made certain additional observations. He noted that Mr Matthews'counsel (also counsel for the present applicant) had conceded that, if the 1947 Act simply said that servicemen had no right of action, it would not have infringed Article 6. Mr Matthews argued, however, that the structure of the 1947 Act was such that he had a civil right (a cause of action in tort) until a section 10 certificate was issued; if no certificate had been issued he would have been able to prosecute his action before the courts; and section 10 therefore gave the Secretary of State a power at his discretion to cut off the applicant's action and prevent him from bringing it before the courts. Lord Hoffmann pointed out that, if the purpose of section 10(1 )( b) and (2)(b) had been to give the Secretary of State a discretionary power “to swoop down and prevent people with claims against the Crown from bringing them before the courts”, he would have agreed since such executive interference would run counter to the rule of law and the principle of the separation of powers. However, referring to the historical analysis of Lord Bingham, he considered it clear that section 10 delimited the substantive cause of action and the section 10 certificate was no more than a binding acknowledgment by the Secretary of State of the “attributable to service” requirement for an award of a pension, the quid pro quo for the inability to sue in tort. He too considered distinguishable Tinnelly & Sons Ltd and Others and McElduff and Others ( Matthews did not involve any encroachment by the executive upon the functions of the judicial branch) and Fogarty (having regard to the discretion available to the foreign government to submit or not to jurisdiction).", "94. Lord Hope analysed in some detail the Convention jurisprudence and principles, the history of the 1947 Act, the text and operation of section 10 and the section 10 certification process. He noted:", "“72. The overall context is provided by the fact that section 10 falls within the same Part [I] of the Act as section 2. Section 2, by which the basic rules for the Crown's liability in tort are laid down, is expressed to be'subject to the provisions of this Act'. Section 10 is an integral part of the overall scheme of liability which is described in Part I of the Act. This was all new law. None of the provisions in this Part which preserved the Crown's immunity from suit in particular cases could be said, when the legislation was enacted, to be removing from anybody a right to claim which he previously enjoyed.", "73. As for section 10 itself, ... [i]t proceeds on the assumption that if a claim is made under section 2 of the Act the Secretary of State will have to form a view, on the facts, as to whether or not the case is covered by the immunity. The Secretary of State is told that he cannot have it both ways. He is not allowed to assert the immunity without making a statement in the form of a certificate in the terms which the condition lays down. This has the effect of preventing him, as the minister responsible for the administration of the war pension scheme, from contesting the issue whether the suffering of the thing was attributable to service for the purposes of entitlement to an award under that scheme. This is a matter of substantive law. It is an essential part of the overall scheme for the reform of the law which the 1947 Act laid down. It does not take anything away from the claimant which he had before. On the contrary, it has been inserted into the scheme of the Act for his benefit.”", "Lord Hope concluded, in full agreement with the reasons expressed by Lord Walker, that section 10 amounted to a substantive limitation on the right to sue the Crown in tort.", "95. Lord Millett's judgment also contained a comprehensive assessment of the Court's jurisprudence, the historical context and text of section 10 and the consequent purpose of the section 10 certificate. He noted:", "“ If the serviceman brought proceedings against the Crown for damages, the question at once arose whether his injury was sustained in circumstances which qualified him for a pension, for if it was the Crown was not liable in damages. Sometimes the Secretary of State had already conceded, or the Tribunal had already found, that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown. If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action.", "... In such circumstances the Secretary of State had no discretion whether to grant or withhold a certificate. He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success. It was his duty as a public servant to ascertain the facts and certify or not accordingly.”", "Lord Millett considered it plain that the section 10 certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. As regards Fogarty, and unlike the other Law Lords, he considered that immunities claimed by a State which conformed to generally accepted norms of international law fell outside Article 6 entirely. For the reasons outlined by each of their Lordships with which he agreed, he would also dismiss the appeal.", "C. Service pensions", "1. Entitlement to a service pension", "96. The scheme currently in force for the payment of a service pension in respect of, inter alia, illnesses and injuries attributable to service is contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”).", "97. The basic condition for the award of a pension is that “the disablement or death of a member of the armed forces is due to service” (Article 3 of the Pensions Order). “Disablement” is defined as “physical or mental injury or damage, or loss of physical or mental capacity” (Schedule 4 to the Pensions Order). Where claims are made more than seven years after the termination of service, Article 5(1)(a) provides that the disablement or death is to be treated as “due to service” if it is due to an injury which is either attributable to service after 2 September 1939 or existed before or arose during such service and was and continues to be aggravated by it.", "98. The Pensions Order provides that where, upon reliable evidence, a reasonable doubt exists whether the above conditions are fulfilled, the benefit of that doubt must be given to the claimant (Article 5(4)).", "2. The procedure for pension claims and appeals", "99. The scheme for the payment of pensions is administered by a specialised agency of the DSS, formerly the War Pensions Agency (“WPA”) and now the Veterans Agency (“VA”). On receipt of an application, the VA, inter alia, obtains the claimant's service records (including service medical records) from the MOD and, with the assistance of additional medical evidence if required, assesses whether the claimant is suffering from a disability attributable to service. The Secretary of State decides on the basis of this assessment whether to award a service pension.", "100. A claimant who is refused a war pension by the Secretary of State may appeal to the PAT (see the Pensions Appeal Tribunals Act 1943) in accordance with the PAT Rules. This body is composed of a lawyer, a doctor and a serviceman or ex-serviceman of the same sex and rank as the claimant.", "101. The VA provides the PAT with a Statement of Case, which includes, inter alia, a transcript of the claimant's service records including service medical records, civilian medical records and reports including those prepared at the request of the VA and a statement outlining the Secretary of State's reasons for refusing the application. The claimant may submit an answer to the Statement of Case and/or adduce further evidence. A hearing then takes place. The PAT examination is de novo so that the appellant does not have to show that the Secretary of State's decision was wrong. A further appeal lies to the High Court on a point of law with leave from the PAT or the High Court.", "3. Disclosure of documents before the PAT", "102. Rule 6 of the PAT Rules (“the Rule 6 procedure”) is entitled “Disclosure of official documents and information” and provides as follows:", "“(1) Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President may think fit :", "...", "(2) On receipt of a direction given by the President under this rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorised by him in that behalf, may certify to the President –", "(a) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or", "(b) that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever;", "and where a certificate is given under sub-paragraph (a), the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the tribunal to consider whether the appellant's case will be prejudiced if the appeal proceeds without such disclosure, and, where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, they shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.”", "D. The Access to Health Records Act 1990 (“the 1990 Act”)", "103. Prior to 1991 all medical records (civilian or service) were only disclosed on a “medical in confidence” basis. It was a matter for the doctor to decide if it was in the patient's best interests to see his or her records. The 1990 Act came into force on 1 November 1991 and it sets down the rights of persons to access, inter alia, their service and civilian medical records. It applies only to records compiled after the date of its entry into force and to records compiled “in connection with the care of the applicant”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "104. The applicant complained that section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”) violated his right of access to a court guaranteed by Article 6 § 1 of the Convention, the relevant parts of which provide as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ... ”", "A. The applicant's submissions", "105. The applicant maintained that the essential point, emphasised by the earlier jurisprudence ( see, notably, Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93 ), was the constitutional protection of the domestic courts against executive control and the assumption of arbitrary power by the State. The Commission's decisions in Ketterick v. the United Kingdom (no. 9803/82, Commission decision of 15 October 1982, unreported), Pinder v. the United Kingdom (no. 10096/82, Commission decision of 9 October 1984, unreported), and Dyer v. the United Kingdom (no. 104 75/83, Commission decision of 9 October 1984, Decisions and Reports 39, p. 246), and the Court's judgment in Fayed v. the United Kingdom ( judgment of 21 September 1994, Series A no. 294 ‑ B, pp. 49-50, § 65) accepted this core constitutional safeguard.", "Accordingly, whether section 10 of the 1947 Act could be described as a substantive limitation on his right of access to a court or a procedural one, paragraph 65 of Fayed (as cited in Fogarty, cited above ) meant that it should be subjected to a proportionality test. Lord Walker of the House of Lords had recognised in Matthews the difficulty in suggesting that the principle laid down in Fayed had been qualified by the judgment in Z and Others v. the United Kingdom ( [GC], no. 29392/95, ECHR 2001 ‑ V ) and the applicant considered that there was nothing inconsistent in the latter case with the decision in Dyer or judgment in Fayed.", "106. Alternatively, section 10 was a procedural limitation on his right of access to a court for a determination of his civil rights.", "He had a “civil right” (a cause of action recognised by national law) within the meaning of Article 6 § 1 which was extinguished by the issuance of a section 10 certificate. The concept of civil rights was, and rightly so in the applicant's view, an autonomous Convention notion not solely dependent on domestic classifications. This ensured that a State could not legislate to divest itself of its Article 6 responsibilities and implied that a “civil right ” could have a meaning or content different to domestic law. However, the House of Lords in Matthews analysed the existence of a “civil right” solely by reference to domestic law. It was true that there was an unresolved tension between, on the one hand, the principle that the expression “civil rights” had an autonomous meaning and, on the other, the principle that Article 6 applied only to disputes about civil rights which could be said at least on arguable grounds to be recognised under domestic law. The answer was to view domestic law as regulating whether a right had “some legal basis” in domestic law but not as determining whether there was, in fact, a civil right. Accordingly, the fact that the applicant had, until the issuance of the section 10 certificate, a civil cause of action recognised by domestic law was sufficient to conclude that he had a “civil right” for the purposes of Article 6 of the Convention.", "While the applicant did not contest the historical analysis of Lord Bingham in Matthews, he maintained that the actual operation of section 10 was also pertinent. He had a cause of action until the Secretary of State had, in the exercise of his discretion, issued the section 10 certificate, thereby extinguishing it. It was the existence of this discretion that distinguished his case from Z and Others and rendered it indistinguishable from Fogarty. Section 10 may not have accorded a wide discretion, but it existed and, if not exercised, the cause of action subsisted. Indeed, it took nine months after the issuance of proceedings for the certificate to be issued.", "107. Having regard to the material sent by the Porton Down Veterans to the MOD on 7 February 2005 (see paragraph 72 above) and the Government submissions thereon (paragraph 115 below), the applicant considered that the only relevant point was that, as the Government had recognised, the MOD's change of policy as regards his civil action had no impact on the issues or submissions before the Court except to undermine the Government's assertion that section 10 certificates were invariably granted.", "108. The applicant further rejected the contention, based on Pellegrin, that Article 6 did not apply. Noting that the MOD had not pursued this argument before the House of Lords, he pointed out that the principles laid down in Pellegrin were relevant only to disputes “raised by employees in the public sector over their conditions of service” as was later confirmed in Fogarty. In so far as it was suggested that R. v. Belgium laid down a rule that any dispute between a serviceman and the services fell outside the scope of Article 6, that would be both inconsistent with Pellegrin and wrong in principle. If it was to be maintained that Pellegrin had laid down such a broad rule, that judgment was incorrect.", "109. According to the applicant, the restriction on his right of access to a court was also disproportionate. The legitimate aim pursued by restricting access was identified by the High Court (operational efficiency and discipline during training). However, in 1987 Parliament had clearly considered that any such aim was no longer worth pursuing, it had little to do with someone volunteering for tests and there was no rational connection between section 10 and the aim it purported to pursue, since a section 10 certificate was so broad as to potentially cover situations having no connection with that legitimate aim.", "Even with the pension alternative, the restriction was disproportionate to any such legitimate aim. The breadth of the restriction was greater than necessary to achieve its objective. The pension scheme was manifestly inadequate and this was an exceptionally high price to pay for the advantage of not having to prove fault. The fundamental injustice of section 10 of the 1947 Act was recognised by its repeal in 1987 and, further, service personnel who now discover an injury that was sustained prior to 1987 will be treated less favourably than those with a similar injury sustained after 1987.", "B. The Government's submissions", "110. The Government relied on the judgments of the Court of Appeal and the House of Lords in Matthews, cited above. Both courts had considered in some detail the Convention case-law and decided (the House of Lords unanimously) that Article 6 was inapplicable because section 10 of the 1947 Act was a substantive element of national tort law delimiting the extent of the civil right in question.", "111. Even if difficult, the distinction between substantive and procedural provisions remained necessary. The oft-quoted paragraph 65 of the judgment in Fayed, cited above, provided no basis for ignoring this distinction and the Court of Appeal and the House of Lords convincingly explained why it should be maintained.", "Any creation of a sort of hybrid category would expand the applicability of Article 6 beyond its proper boundaries, turning it from a provision guaranteeing procedural rights to one creating substantive ones, which would, in turn, go against the well-established principle that Article 6 applied only to civil rights which could be said on arguable grounds to be recognised under domestic law. In addition, the Government considered it vital to bear in mind the rationale underlying Article 6: the protection of the rule of law and the proper separation of powers from any threat ( see Golder, cited above, and Lord Hoffmann in Matthews ). A provision entitling the executive to exercise arbitrary discretion to prevent otherwise valid claims from being decided by the courts would threaten the rule of law, whereas section 10 brought with it no such threat as it simply defined the circumstances in which a no-fault pension scheme would replace a claim in tort for damages. Moreover, it was essential to analyse accurately an individual's substantive rights in domestic law taking into account the history and legislative context of the provision and its purpose (as did Lord Bingham). The purpose of the provision could then be measured against the underlying rationale of Article 6 of the Convention.", "112. The core question was therefore the actual characterisation to be given (procedural or substantive) to the relevant limitation. The essential starting - point was an accurate analysis of domestic law and considerable respect had to be shown to the analysis of the restriction by the higher domestic courts. The Government suggested caution as regards the terminology used so that, for example, the use of the word “immunity” was not determinative of the question: indeed, domestic law recognised an immunity from liability (substantive) and immunity from suit (procedural).", "The Government further considered, for the reasons outlined in the judgments in Matthews, that section 10 was a substantive limitation. The uncontroversial starting - point was that, prior to the 1947 Act, there was no common- law right to claim damages in tort from the Crown: section 10 could not therefore have removed or taken away any pre-existing right. The 1947 Act created such a right in section 2 but did so expressly subject to section 10 which preserved the preclusion from claiming damages in cases concerning servicemen. In short, the parliamentary intention behind the 1947 Act was to maintain the pre-existing preclusion in so far as servicemen were concerned. Both sections 2 and 10 were contained in Part I of the Act entitled “Substantive Law”, a title which accurately reflected the nature of Part I which was a composite of provisions laying down the basic rules for the Crown's liability in tort. Both the prior common law and the 1947 Act were rules of general application marking the limits of tortious liability in domestic law: they were expressed in the language of rules of substantive law and the circumstances in which there was no right to claim (the section 10 exception to the section 2 right to claim) were of general application and clearly set out in the statute.", "The certification provisions, properly understood in context, did not indicate the existence of a right to claim removed by some broad discretion of the executive. There was no such right in the first place and the discretion was a narrow one: in this latter respect, the circumstances in which Parliament intended that no action could be brought were fully defined (sections 10(1)(a) and (2)(b)), the narrow discretion therein can be contrasted with the broad discretion in section 10(3) of the 1947 Act, and the discretion was uniformly and invariably exercised. The purpose of the certification provisions was not to confer a broad discretion to take away an existing cause of action but rather to ease the path of servicemen towards an alternative pension by taking away the need to prove a causal link between the injury and service. If a certificate was not issued, a cause of action continued but under section 2 of the 1947 Act. Accordingly, the certification process did not have any purpose or effect that threatened the rule of law or the separation of powers or was inimical to the rationale behind Article 6.", "For these reasons, the Government maintained that the Court of Appeal and the House of Lords correctly concluded in Matthews that section 10 was a substantive provision limiting the scope of the civil right.", "113. Alternatively, the Government submitted that Article 6 was not applicable given the “functional” principles outlined in Pellegrin (§ 66) as applied in R. v. Belgium.", "114. In the further alternative, the Government argued that, even if Article 6 applied, any interference with the applicant's access to a court was proportionate having regard, on the one hand, to the vagaries, costs and other difficulties of an uncertain fault- based action (where the task of determining whether it was just and reasonable to impose a duty of care would be especially difficult) and, on the other, to the certainty and relative efficiency of a no-fault needs-based system. The Commission (in Ketterick, Dyer and Pinder, all cited above ) concluded (as recently as 1984) that the creation of the no-fault pension entitlement was an adequate alternative to the right to sue in negligence. The fact that the State decided in 1987 that the bar on service personnel suing in tort was no longer necessary for claims thereafter did not mean that the prior restriction was inappropriate or disproportionate.", "115. Following receipt of the letter of the Porton Down Veterans of 7 February 2005 (see paragraph 72 above), the Government Agent caused urgent inquiries to be made. In submitting this correspondence to this Court, the Government pointed out that neither they nor the Secretary of State in 1995 (in issuing the section 10 certificate) were aware of these Treasury Solicitor letters until the above-noted letter of 7 February 2005. A policy decision had been taken by the MOD not to “take a section 10(1) point” as regards certain civil claims mounted by some Porton Down volunteers because at least some of the tests (including those conducted on Mr Maddison to which the Treasury Solicitor's letters related) had been conducted by or under the direction and control of civilian personnel and not solely by members of the armed forces. While it was not clear precisely which type of personnel were involved in tests on the applicant, “there appear to have been some armed forces personnel and some civilians involved” in the applicant's tests. The MOD stated that it would be prepared to treat the applicant as falling within the above-noted policy decision. The applicant could now sue for damages in tort given this decision of the MOD. He retained, in addition, the separate right to continue with his claim for a pension in the PAT since the section 10 certificate remained valid for the purpose of those proceedings. When the section 10 certificate was issued in 1995, the Minister believed section 10 to be applicable and, until the Treasury Solicitor's letters of advice were recently produced, that was the belief of the Government Agent. They concluded that it was “at least arguable” that, if the applicant had commenced a civil negligence action following his section 10 certificate (of August 1995), the action would have been barred. According to the Government, therefore, the Article 6 issues he raised before the Court remained live.", "C. The Court's assessment", "1. General principles", "116. The right of access to a court guaranteed by Article 6 in issue in the present case was established in Golder ( cited above, pp. 13 - 18, §§ 28-36). In that case, the Court found the right of access to a court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see, more recently, Z and Others, cited above, § 91).", "117. Article 6 § 1 does not, however, guarantee any particular content for those ( civil ) “ rights” in the substantive law of the Contracting States : the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned ( see Fayed, cited above, pp. 49 -50, § 65). Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law ( see James and Others v. the United Kingdom, judgment of 2 1 February 1986, Series A no. 98, and Z and Others, § 81, and the authorities cited therein, together with McElhinney v. Ireland [GC], no. 31253/96, § 23, 21 November 2001 ).", "118. The applicant maintained that there was a certain tension between this aforementioned principle, on the one hand, and, on the other, the established autonomous meaning accorded by the Court to the notion of “civil rights and obligations”. Connected to this, he questioned the distinction between a restriction which delimits the substantive content properly speaking of the relevant civil right, to which the guarantees of Article 6 § 1 do not apply ( see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, pp. 16-17, § 36, and Z and Others, cited above, § 100), and a restriction which amounts to a procedural bar preventing the bringing of potential claims to court, to which Article 6 could have some application ( see Tinnelly & Sons Ltd and Others and McElduff and Others, p. 1657, § 62; Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 48-49, ECHR 2001 ‑ XI; Fogarty, § 26; and McElhinney, § 25 ). The applicant argued that it was not necessary to maintain that distinction (relying on the Commission decisions in Ketterick, Pinder and Dyer, cited above, together with paragraph 65 (p. 49) of Fayed, as cited in Fogarty, § 25) : any restriction should be subjected to a proportionality test because the important point was to protect the courts from the assumption of arbitrary power and control on the part of the executive.", "119. The Court cannot agree with these submissions of the applicant. It does not find any inconsistency between the autonomous notion of “civil” ( see König v. Germany, judgment of 28 June 1987, Series A no. 27, p. 30, § 89, and, more recently, Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001 ‑ VII) and the requirement that domestic law recognises, at least on arguable grounds, the existence of a “right” ( see James and Others, cited above, pp. 46-47, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, § 80 ). In addition, the Commission decisions in Ketterick, Pinder and Dyer must be read in the light, inter alia, of the judgment in Z and Others (cited above) and, in particular, in the light of the Court's affirmation therein as to the necessity to maintain that procedural/substantive distinction: fine as it may be in a particular case, this distinction remains determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention. In both these respects, the Court would reiterate the fundamental principle that Article 6 does not itself guarantee any particular content of substantive law of the Contracting Parties (see, amongst other authorities, Z and Others, cited above, § 87).", "No implication to the contrary can be drawn, in the Court's view, from paragraph 6 7 of Fayed. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars ( see, for example, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002 ‑ X ) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law.", "120. In assessing therefore whether there is a civil “ right” and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting - point must be the provisions of the relevant domestic law and their interpretation by the domestic courts ( see Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327 ‑ A, p. 19, § 49). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law ( see Z and Others, cited above, § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law.", "121. Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 20-21, § 38). The Court must not be unduly influenced by, for example, the legislative techniques used ( see Fayed, pp. 50-51, § 67) or by the labels put on the relevant restriction in domestic law: as the Government noted, the oft-used word “immunity” can mean an “immunity from liability” (in principle, a substantive limitation) or an “immunity from suit” (suggestive of a procedural limitation).", "2. Application to the present case", "122. The Court has therefore taken as a starting - point the assessment of, and conclusions concerning, section 10 of the 1947 Act by the House of Lords in Matthews, cited above.", "Drawing on the historical context, the text and purpose of, in particular, sections 2 and 10 of the 1947 Act, the House of Lords concluded that section 10 was not intended to confer on servicemen any substantive right to claim damages against the Crown but rather had maintained the existing (and undisputed) absence of liability in tort of the Crown to servicemen in the circumstances covered by that section. The Lords made it clear that prior to 1947 no right of action in tort lay against the Crown on the part of anyone. The doctrine that “the King could do no wrong” meant that the Crown was under no liability in tort at common law. Section 2 of the 1947 Act granted a right of action in tort for the first time against the Crown but the section was made expressly subject to the provisions of section 10 of the Act. Section 10 (which fell within the same part of the 1947 Act as section 2 entitled “ Substantive law” – see Lord Hope in Matthews, paragraph 94 above) provided that no act or omission of a member of the armed forces of the Crown while on duty should subject either that person or the Crown to liability in tort for causing personal injury to another member of the armed forces while on duty. Section 10 did not therefore remove a class of claim from the domestic courts'jurisdiction or confer an immunity from liability which had been previously recognised: such a class of claim had never existed and was not created by the 1947 Act. Section 10 was found therefore to be a provision of substantive law which delimited the rights of servicemen as regards damages claims against the Crown and which provided instead as a matter of substantive law a no-fault pension scheme for injuries sustained in the course of service.", "123. As to whether there exist strong reasons to depart from this conclusion, the applicant mainly argued that the section 10 certificate issued by the Secretary of State operated as a procedural restriction to prevent him from pursuing a right of action which he enjoyed under the 1947 Act from the moment he suffered significant injury. The Court is unable to accept this argument. It finds that section 10 must be interpreted in its context and with the legislative intent and purpose in mind. As explained in detail in the judgments of Lord Bingham and Lord Hope in Matthews, the object of the certification procedure introduced by section 10(1)(b) was not to alter the essential thrust of section 10 as originally drafted – namely, to exclude the Crown's liability altogether – but was rather to facilitate the grant of a pension to injured service personnel by obviating the need to prove that the injury was attributable to service.", "Moreover, Lord Bingham pointed out that the “realities of the situation” were that it was “plainly intended” that the section 10 certificate would be issued where the relevant conditions had been fulfilled and he noted that that had indeed been the uniform and unvarying practice of successive Secretaries of State for forty years, to the extent that any practitioner would have advised Mr Matthews that a section 10 certificate was bound to be issued (see also Lord Walker in Matthews, paragraph 92 above ). This narrow discretion conferred by section 10(1)(b) was to be contrasted with the broader discretion for which section 10(3) of the 1947 Act provided. For the reasons set out in paragraph 126 below, this finding as to the narrow discretion of the Secretary of State is not altered by the fact that the latter has now decided not to maintain “a section 10(1) point” against the applicant.", "The Court finds this discretion conferred on the Secretary of State by section 10 to be fundamentally different in character from the unfettered discretion enjoyed by a foreign government, which was the subject of the Court's examination in Fogarty, not to waive State immunity and thereby to prevent a claim otherwise well-founded in domestic law from being entertained by a domestic court.", "The certification procedure provided for by section 10 is similarly to be distinguished from that considered by the Court in Tinnelly & Sons Ltd and Others and McElduff and Others. In that case, the Fair Employment ( Northern Ireland ) Act 1976 clearly granted a right in national law to claim damages for religious discrimination when tendering for public contracts. Section 42 of the 1976 Act was not aimed at creating an exception for cases in which Parliament (when adopting the 1976 Act) considered discrimination justified but rather allowed the Secretary of State by a conclusive certificate, based on an assertion that the impugned act was done to protect national security, to stop court proceedings that would otherwise have been justified. As observed by Lord Hoffmann, section 10 did not involve such encroachment by the executive into the judicial realm but rather concerned a decision by Parliament in 1947 that, in a case where injuries were sustained by service personnel which were attributable to service, no right of action would be created but rather a no-fault pension scheme was to be put in place, the certificate of the Secretary of State serving only to confirm that the injuries were attributable to service and thereby to facilitate access to that scheme.", "124. Accordingly, this Court finds no reason to differ from the unanimous conclusion of the Court of Appeal and the House of Lords as to the effect of section 10 in domestic law. It considers that the impugned restriction flowed from the applicable principles governing the substantive right of action in domestic law ( see Z and Others, § 100). In such circumstances, the applicant had no ( civil ) “ right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention ( see Powell and Rayner, cited above, pp. 16-17, § 36).", "It is not therefore also necessary to examine the parties'submissions as to the proportionality of that restriction. It is further unnecessary to examine the Government's argument that Article 6 was inapplicable on the basis of the above-cited judgments in Pellegrin and R. v. Belgium.", "125. The Court concludes that Article 6 of the Convention is not applicable and that there has not therefore been a violation of that provision.", "126. Finally, the Court has noted the submissions of the parties concerning the recent discovery of the Treasury Solicitor's letters of advice from 1953 concerning another test participant ( see paragraphs 72, 107 and 115 above). The fact that the Secretary of State has now decided to no longer “take a section 10(1) point” in any civil action of the applicant, does not alter or otherwise affect the above conclusion in respect of section 10 in the applicant's case. That decision merely serves to resolve in the applicant's favour a doubt which has recently emerged (not commented upon by the applicant and remaining unclarified) as to whether the applicant in fact belonged to a category of persons to which the provisions of section 10 applied. Further, it is a decision which concerns the future, the Government having confirmed that the section 10 certificate remains valid for the purposes of the ongoing PAT appeal.", "The Court has, however, returned to these submissions in the context of Article 8 of the Convention below.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "127. The applicant further complained that section 10 of the 1947 Act had also violated his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1, the relevant part of which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "... ”", "128. For the reasons outlined in the context of Article 6, the applicant maintained that he had a “possession” (a claim in negligence against the MOD) until deprived of it, in an unjustified manner, when the Secretary of State issued the section 10 certificate ( see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 21, § 31). The Government pointed out that, while Article 1 of Protocol No. 1 recognised a vested cause of action as a possession, any claim the applicant might otherwise have had in tort was always subject to section 10 of the 1947 Act and was defeasible. There had been, therefore, no interference with the applicant's rights under that provision. Indeed, Mr Matthews ( see Matthews, cited above ) did not pursue this argument before the House of Lords.", "129. The Court reiterates that a proprietary interest in the nature of a claim can only be regarded as a possession where it has a sufficient basis in national law, including settled case-law of the domestic courts confirming it ( see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX ). The applicant argued that he had a “possession” on the same grounds as he maintained that he had a “civil right” within the meaning of Article 6 § 1. For the reasons outlined under Article 6 § 1 above (see paragraphs 122- 24), the Court considers that there was no basis in domestic law for any such claim. The applicant had no “possession” within the meaning of Article 1 of Protocol No. 1 and the guarantees of that provision do not therefore apply.", "130. Accordingly, there has been no violation of Article 1 of Protocol No. 1.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1", "131. The applicant further argued under Article 14 of the Convention ( taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1) that section 10 of the 1947 Act was discriminatory. Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "132. He maintained, for the reasons set out above in the context of Article 6 of the Convention and Article 1 of Protocol No. 1, that the impugned facts fell within the ambit of those Convention provisions. He further argued that he had been treated less favourably than other persons in an analogous position: he referred to other employees who had suffered injury as a result of the negligence or lack of foresight of their employers or, alternatively, to other servicemen injured as a result of activities after 1987. He also considered that difference in treatment to be disproportionate on the same grounds as he maintained the interference with his right of access to a court was unjustified. The Government disagreed.", "133. In the light of its findings ( see paragraphs 124 and 129 above) that the applicant had no “civil right” or “possession” within the meaning of Article 6 § 1 and Article 1 of Protocol No. 1 so that neither Article was applicable, the Court considers that Article 14 is equally therefore inapplicable ( see, amongst many other authorities, Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, p. 585, § 22 ).", "134. There has therefore been no violation of Article 14 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND/OR ARTICLE 1 OF PROTOCOL No. 1", "135. The applicant also complained under Article 13 of the Convention taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1 that he was left without an effective remedy for the unlawful barring of his claim or, alternatively, the unlawful deprivation of his possessions.", "136. The Government contended that there was no arguable claim of a violation of Article 1 of Protocol No. 1 or, consequently, of Article 13 of the Convention, which provides :", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "137. The Court notes that the applicant's complaints under Article 6 and Article 1 of Protocol No. 1 are clearly directed against the provisions of section 10 of the 1947 Act. In this respect, the Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's primary legislation to be challenged before a national authority on the ground that it is contrary to the Convention ( see James and Others, cited above, p. 47, § 85).", "138. Accordingly, there has been no violation of Article 13 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "139. The applicant complained about inadequate access to information about the tests performed on him in Porton Down. He considered that his access to information to allay his fears about the tests was sufficiently linked to his private and family life to raise an issue under Article 8 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The applicant's submissions", "140. The applicant's primary submission was that the State failed to provide him with information about his test participation in breach of its positive obligation to respect his private and family life.", "141. Relying mainly on the Court's judgments in Gaskin v. the United Kingdom (judgment of 7 July 1989, Series A no. 160), Guerra and Others v. Italy (judgment of 19 February 1998, Reports 1998 ‑ I) and McGinley and Egan ( cited above ), he maintained that he had a right to information under Article 8 to allow him to understand and react to the risks and dangers to which he had been exposed. This was a free-standing obligation (unattached to any judicial or other process) to provide an “effective” and “accessible” means for an individual to “seek all relevant and appropriate information”. His particular need for information, and for the means of obtaining it, first arose in 1987 when he initially began to seek his records, well before and separate from any PAT appeal. In any event, attaching the positive obligation to the PAT process was absurd as it would effectively require someone (whether or not he or she was entitled to, or was interested in, a pension) : to engage in a litigious process and, in particular, to apply for a pension and/or threaten litigation under section 2 of the 1947 Act; to hope that any pension application would be unsuccessful at first instance so that he/she could appeal to the PAT; and, before the PAT, to discharge a burden of proof and demonstrate the relevance of the documents to the litigation issues before he/she could obtain an order for disclosure under Rule 6 of the PAT Rules. Rule 6 is designed for the contentious litigation process and not to assuage fear by providing information : the applicants in McGinley and Egan had not relied on the general right to information and their case was therefore distinguishable on the facts.", "142. The applicant maintained that the State did not secure his right to an effective and accessible procedure to obtain the necessary information.", "143. Prior to the 1998 Scheme (see paragraph 69 above) and his PAT appeal, he had made significant attempts, apart from any litigation, to obtain information. The first information disclosed was to his doctor on a “medical in confidence” basis so he did not see it until 1994. It was not, in any event, useful as it contained errors and gaps (it did not mention the mustard gas tests) and was unsubstantiated by underlying records. He obtained some meaningful disclosure in December 1997 and March 1998 but this too was inadequate and it came via extraordinary channels (a meeting with a Minister of State and in the context of his application to this Court ). It did not amount to “all relevant and appropriate information”: there was no mention of the 1962 tests and no information about the 1963 mustard gas test; the standards of record generation (at the time) and maintenance (thereafter) were recognised to be lacking; while it was stated that all documents had been disclosed, this was obviously not the case given later disclosure; and the letter of December 1997 contained assertions unsubstantiated by any records.", "144. The subsequent 1998 Scheme could not remedy this and was itself an inadequate means of obtaining information. The 1998 Scheme began more than ten years after he had begun to seek information and subsequent to his introduction of the present application. The reassurances in the information pamphlet were unconvincing as they were not backed up by an epidemiological study and the pamphlet promised only a summary of records and the possibility of going to Porton Down to inspect records. Indeed, the applicant considered that the 1998 Scheme confirmed the lack of adequate and effective means of obtaining information.", "145. Similarly, the subsequent Rule 6 procedure did not cure this earlier lack of information and it was, in any event, neither effective nor accessible since it was a cumbersome, unwieldy and long procedure allowing incomplete and drip- feed disclosure (the latest being in April 2005).", "The procedure could be conditioned and limited as the President of the PAT wished, Rule 6 providing that the President “may” order disclosure only if the information “is likely to be relevant to any issue to be determined on appeal”. In addition, the applicant considered the Rule 6 procedure to lack effective control: there were no time-limits on disclosure and disclosure was allowed on a piecemeal basis. There were also significant delays in the procedure. The applicant accepted that some delay was attributable to him and he explained the reasons for his delay in responding to the PAT's letter of 25 July 2001 and for applying to adjourn the October 2002 hearing. However, he argued that those delays did not, in any event, lead to the overall delay in the procedure: the MOD continued to make disclosure thereafter and the hearing adjournment was attributable also to the VA which was not ready, to the reasonable confusion as to the scope of the appeal and to the need to put further questions to Dr H. The uncontrolled certification by the MOD of records as undisclosable “departmental minutes or records” also undermined the ability of the Rule 6 procedure to fulfil the positive obligation under Article 8, as did the power to withhold documents on “national security” grounds. The whole Rule 6 procedure was, in the applicant's view, marked by errors, contradictory statements and admissions that certain documents could no longer be found with the consequence that the information at the end of the disclosure process was incomplete. Had Mr McGinley and Mr Egan used the Rule 6 procedure, the Court would have inevitably concluded in its judgment as to the inability, both in principle and in practice, of that procedure to satisfy the positive obligation to provide an accessible and effective means of obtaining information.", "146. Moreover, the applicant maintained that all “relevant and appropriate information” had not been disclosed to him. Apart from the conclusion that could be drawn from the piecemeal disclosure to date, accompanied by unsubstantiated assurances (later contradicted) that all disclosure had been made, the applicant considered that two other factors demonstrated that all relevant and appropriate documents had not been disclosed.", "In the first place, there was, in the applicant's view, an unacceptable failure to create and maintain records which rendered compliance with the Article 8 positive obligation impossible from the outset. Secondly, the Government had, until recently, refused to carry out a long-term follow-up study which was the only effective way to provide information. He considered unconvincing the reasoning and conclusion of the feasibility study report ( see paragraph 55 above), while the recently commissioned study ( see paragraph 70 above) had still not been completed and, further, begged the question as to why it was not done earlier.", "147. As to the proportionality of the State's position, the applicant noted that the Government did not plead a national security justification but rather one based on quite narrow “medical in confidence” grounds. While withholding information on “medical in confidence” grounds could serve a legitimate aim (the interests of health professionals compiling medical records and, consequently, the interests of patients), the applicant was not convinced of this in the present case since the only persons who stood to gain by the Porton Down scientists expressing themselves freely were the scientists themselves. In any event, the “medical in confidence” approach was abandoned generally (in 1991 with the entry into force of the Access to Health Records Act 1990) and specifically as regards Porton Down participants (with the introduction of the 1998 Scheme). This defence to full disclosure was clearly not proportionate having regard to the enormous importance of the information for the applicant; the paucity of the information disclosed and the piecemeal manner in which that had been done; the need for actual and original records to make a proper risk assessment; the anxiety and stress caused by the absence of such a risk assessment; the facts that the tests were in secret, that the participants were forbidden to speak of them and that there were no safeguards against abuse put in place; the toxic and hazardous material to which the participants were exposed; and the lack of an adequate follow-up study which might have generated conclusions to clarify the issue for test participants one way or the other.", "148. Relying on the detailed legal submissions made, and shortcomings highlighted, in the context of his primary Article 8 submission, the applicant advanced two alternative and secondary arguments.", "In the first place, he maintained that the procedures and systems surrounding the tests did not fulfil the procedural requirements inherent in respect for private life, so that the Government had failed adequately to secure and respect his Article 8 interests ( see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 ‑ B).", "Secondly, he argued that the Government had failed to secure his Article 8 rights in that they had failed to adequately investigate and research (or, alternatively, to put in place an adequate system to investigate and research) the potential risks to which they had chosen to expose him. Just as Articles 2 and 3 implied an investigatory requirement ( see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99 ECHR 2002-II; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V), so a similar obligation arose under Article 8 of the Convention.", "B. The Government's submissions", "149. While the Government considered that there was no evidence that the tests had had a negative impact on his health, the key answer to the applicant's complaint was, as found in McGinley and Egan, cited above, that the positive obligation under Article 8 to provide an effective and accessible procedure giving access to all relevant and appropriate information had been fulfilled by the Rule 6 procedure. This was a conclusion of principle not altered by, and indeed confirmed by, the facts of the present case.", "150. The procedure was demonstrably accessible to the applicant and he had successfully relied on and used it. It had been available to him at all relevant times since the illnesses in respect of which he claimed a pension manifested themselves in the late 1980s. He had not appealed to the PAT until November 1998 or made the Rule 6 request until July 1999. Accordingly, the period prior to July 1999 could not be relied upon to assess the accessibility (or indeed the effectiveness) of the Rule 6 procedure. In addition, should the current State epidemiological study provide evidence to support the applicant's case, he could begin his pension claim again.", "151. The Rule 6 procedure was also capable of being effective and, on the facts of the present case, was effective in producing the relevant documents for the applicant in a reasonable period of time.", "152. It was in principle effective since it allowed disclosure of documents directly corresponding to the positive obligation under Article 8. The retention of certain documents on national security or public interest grounds did not undermine its effectiveness and was compatible with the Convention, as it enabled a balance to be struck between the competing interests involved and was not without statutory safeguards (the text of Rule 6 itself). There was no systematic delay or “lack of control” over the Rule 6 procedure.", "It was also effective in the present case. Pursuant to the applicant's request, a Rule 6 order was made setting out in broad terms the simple categories of document to be disclosed. The Secretary of State approached compliance in a timely manner, thoroughly and with an evident disposition to conduct an extensive and wide - ranging search in order to disclose the maximum documents possible. A wide range of test documentation was disclosed: nothing of significance was withheld on national security grounds. The applicant made no further request under Rule 6 for disclosure to the PAT.", "153. If there was some delay attributable to the State after July 1999, it did not undermine the effectiveness of the process and there was no tangible evidence of prejudice to the applicant's case. The applicant had the “responsive documents” well in advance of the PAT hearing and was able to make use of them as he considered appropriate. The delay in furnishing the fifth category of documents (see paragraphs 53 and 55 above) was not surprising given the width of that category, the need to ensure completeness, the time that had elapsed since the tests and the “need to consider serious classification issues”. Moreover, any delay by those authorities was to be measured against the applicant's own delays: Rule 6 was only relied on in July 1999 although it had been available since the late 1980s when the applicant began to look for documents; he caused confusion, and consequently delay, as regards the breadth of the PAT appeal; and, indeed, the Government attributed to the applicant any delay after the Secretary of State's letter of 6 July 2001. Furthermore, and other than the timely disposal of the PAT proceedings, there were no time - sensitive issues as in, for example, the preventative measures in issue in Guerra and Others, cited above.", "Disclosure in stages was not unexpected (given the broad category of documents requested, their age and the numerous checks required) and it was a better option than holding all documents until all had been located. As to the suggestion that the documentation was not complete, the Government pointed out that, as in McGinley and Egan, the State could not be held responsible for any allegation concerning the failure to make or maintain records prior to the State's acceptance of the right of individual petition in 1966. As to the complaint about a refusal to carry out a follow-up study, the Government argued that there was no positive obligation to do so, that on no view could such an obligation arise without compelling evidence that there was a material problem and that, in any event, there was at the time an ongoing epidemiological study to assuage the fears of the servicemen.", "154. Finally, the Government also referred to the medical responses in 1987 and 1989, to meetings and correspondence with the Secretary of State in 1997, to the 1998 Scheme and to the ongoing epidemiological study, to conclude that the applicant had had access to all relevant information.", "C. The Court's assessment", "1. Applicability of Article 8", "155. The Government were not definitive about the applicant's participation in tests in 1962 despite the findings of the PAT. The Court considers that it is not necessary for current purposes to resolve this dispute since, in any event, it is accepted that the applicant attended the Chemical and Biological Defence Establishment at Porton Down in 1963 to participate in testing on armed forces personnel of mustard and nerve gas.", "The tests are described in paragraphs 15 and 16 above and involved the applicant's exposure to small doses of both of these agents for research purposes. In the case of mustard gas, the PAT expressly found that the aim was to test the suitability of military clothing to exposure (the PAT finding of fact – see paragraph 63 above) and it would appear from the inhalation of nerve gas, that the aim was to test the reaction of service personnel to it. Even accepting the Government's clarifications about the manner in which those tests were conducted, the Court considers that the issue of access to information, which could either have allayed the applicant's fears or enabled him to assess the danger to which he had been exposed, was sufficiently closely linked to his private life within the meaning of Article 8 as to raise an issue under that provision ( see McGinley and Egan, cited above, pp. 1362-63, § 97). It is not necessary to examine whether the case also gives rise to a separate issue under the family life aspect of this Article.", "156. It follows that Article 8 of the Convention is applicable.", "2. Compliance with Article 8", "157. The applicant considered that the State had failed to provide him with access to information in violation of his rights under Article 8. The Court observes that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck", "between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance ( see Gaskin, cited above, p. 17, § 42).", "158. In Gaskin, a file existed containing details of the applicant's childhood history that he had no opportunity of examining in its entirety. The Court found (p. 20, § 49) that the United Kingdom, in handling his requests for access to those records, was in breach of a positive obligation flowing from Article 8 of the Convention:", "“ ... persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8, taking into account the State's margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in the present case.”", "159. In the later judgment in Guerra and Others (cited above, p. 228, § 60 ), the Court ascertained whether the national authorities had taken the necessary steps to provide the applicants with information concerning risks to their health and well-being :", "“The Court reiterates that severe environmental pollution may affect individuals'well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.", "The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants'right to respect for their private and family life, in breach of Article 8 of the Convention.”", "160. Subsequently, in McGinley and Egan, cited above, the Court also examined whether the State had fulfilled a positive obligation to provide information to the applicant servicemen who had participated in armed forces atmospheric tests of nuclear weapons. It distinguished the judgment in Guerra and Others since, in that case, it was not disputed that the applicants were at risk from the neighbouring factory or that the State had in its possession information which would have enabled them to assess this risk and take steps to avert it, whereas Mr McGinley and Mr Egan had only demonstrated that one set of relevant records remained in the hands of the authorities (radiation level records). It went on (pp. 1363-64) :", "“ 100. ... the Government have asserted that there was no pressing national security reason for retaining information relating to radiation levels ... following the tests.", "101. In these circumstances, given the applicants'interest in obtaining access to the material in question and the apparent absence of any countervailing public interest in retaining it, the Court considers that a positive obligation under Article 8 arose. Where a Government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.", "102. As regards compliance with the above positive obligation, the Court recalls its findings in relation to the complaint under Article 6 § 1, that Rule 6 of the Tribunal Rules provided a procedure which would have enabled the applicants to have requested documents relating to the MOD's assertion that they had not been dangerously exposed to radiation, and that there was no evidence before it to suggest that this procedure would not have been effective in securing disclosure of the documents sought ... However, neither of the applicants chose to avail themselves of this procedure or, according to the evidence presented to the Court, to request from the competent authorities at any other time the production of the documents in question.", "For these reasons the present case is different from that of Gaskin ..., where the applicant had made an application to the High Court for discovery of the records to which he sought access.", "103. The Court considers that, in providing the above Rule 6 procedure, the State has fulfilled its positive obligation under Article 8 in relation to these applicants. It follows that there has been no violation of this provision.”", "161. The present applicant's uncertainty, as to whether or not he had been put at risk through his participation in the tests carried out at Porton Down, could reasonably be accepted to have caused him substantial anxiety and stress ( see McGinley and Egan, p. 1363, § 99). Indeed, the clear evidence is that it did. From the onset of his medical problems in 1987, he single-mindedly pursued through various means ( detailed in paragraphs 17 - 33 above) any relevant information that could inform him about his test participation and assuage his anxiety as to the consequences. While the PAT found, relying on its expert's report, that there was no reliable evidence to suggest a causal link between the tests and the applicant's claimed medical conditions, that was not until 2004 and, in any event, the High Court has since allowed his appeal and sent the matter back to the PAT, before which the matter is pending. Moreover, as is now clear, a significant number of “relevant records” of the 1963 tests were still in existence in 1966, the date of the respondent State's declarations under Article 25 and 46 of the Convention ( see McGinley and Egan, p. 1360, § 88): the documents included with the letter of 2 December 19 9 7 from the Minister of State for Defence; those documents referred to in the letter of 3 May 2001 from Porton Down; the records submitted with the Government's observations in the present case (on 9 March 1998 and 5 April 2001); and the additional documents disclosed to the PAT on 6 July 2001, 23 August 2002, 2 and 21 October 2002 and on 18 April 2005.", "On the other hand, the Government have not asserted that there was any pressing reason for withholding the above-noted information although they commented on the vagaries of locating old records that had inevitably become dispersed. Reasons of “medical confidence” were not pleaded by the Government and such reasons would, in any event, be inconsistent with the dilution of the notion in the 1990 Act and the apparent decision not to raise it in the context of the 1998 Scheme and Porton Down records. Following certain revisions of their position and declassification of documents (see paragraphs 53, 55, 57, 59 and 68 above), the Government submitted that, “nothing of significance” had been withheld on national security grounds ( see paragraph 152 above).", "162. In such circumstances, the Court considers that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicant to have access to “all relevant and appropriate information” ( see McGinley and Egan, cited above, pp. 1363-64, § 101) which would allow him to assess any risk to which he had been exposed during his participation in the tests ( see Guerra and Others, p. 228, § 60).", "163. As to compliance with this positive obligation, the Government mainly relied on the Court's conclusion in McGinley and Egan that the Rule 6 procedure before the PAT fulfilled this obligation.", "164. The Court considers that that conclusion does not apply in the present case since the essential complaints of Mr McGinley and Mr Egan and the present applicant are not comparable. The search for documents by the former was inextricably bound up with their domestic applications for pensions in respect of illnesses they maintained were caused by their participation in nuclear tests. In contrast, the present applicant had made numerous attempts to obtain the relevant records (outlined in paragraphs 17 ‑ 33 above) independently of any litigation and, in particular, of a pension application. Indeed, even when he applied for a pension in 1991, he continued to seek documents in parallel with that application since the Rule 6 procedure was not, in any event, available at first instance. If the present applicant appealed to the PAT it was because he felt constrained to do so in order to make his Rule 6 request for documents following the judgment of this Court in McGinley and Egan in June 1998.", "165. The Court's judgment in McGinley and Egan did not imply that a disclosure procedure linked to litigation could, as a matter of principle, fulfil the positive obligation of disclosure to an individual, such as the present applicant, who has consistently pursued such disclosure independently of any litigation. Consistently with judgments in Guerra and Others and Gaskin and as the applicant argued, it is an obligation of disclosure (of the nature summarised in paragraph 162 above) not requiring the individual to litigate to obtain it.", "166. The Government also relied more generally upon the disclosure that had been made through the “medical” and “political” channels and upon the other information services and health studies ( see paragraphs 17-33 and 69-71 above). However, the Court does not consider that, either individually or collectively, these could constitute the kind of structured disclosure process envisaged by Article 8. In any event, it is evident that those processes resulted in partial disclosure only given the later disclosure of relevant records, notably during the present application and the PAT appeal.", "In particular, the applicant's doctor was given information in 1987 and 1989. However, the applicant did not see it until 1994 given the “medical in confidence” basis of disclosure, the information did not refer to the mustard gas tests, it was not accompanied by the underlying records and it was, in any event, incorrect as regards certain matters (see paragraphs 19 and 36 above). Having been refused disclosure of further information, the applicant was given access for the first time to original records in 1997: this was an ad hoc procedure adopted in response to his tenacious pursuit of the information (see paragraphs 1 9 -33 above) and it constituted but the first of many instalments.", "Moreover, none of the processes described as “ information services and health studies” ( see paragraphs 69-71 above) began until almost ten years after the applicant had commenced his search for records and, further, after he had introduced his application to the Court.", "As to the 1998 Scheme, the Court notes the difficulties experienced by the authorities, even in a judicial context before the PAT, in providing records pursuant to the Rule 6 order of the President of the PAT. Even taking into account only the period following the making of the Rule 6 order by the President in February 2001, the disclosure has been piecemeal (over five occasions listed in paragraph 161 above, the most recent being in April 2005), the State reviewed its position on the classification of certain material on several occasions during that period (see paragraphs 53, 55, 57, 59 and 68 above ) and, over four years after the Rule 6 order, disclosure remains incomplete (see the letter of 18 April 2005, paragraph 68 above). Indeed, the PAT described as “disquieting” the difficulties experienced by the applicant in obtaining the records produced to the PAT. In the same vein, it is also illustrative that none of the authorities dealing with the Rule 6 procedure or the present application was aware until recently of the Treasury Solicitor's letters from 1953 (see paragraph 72 above). These demonstrated difficulties in making comprehensive and structured disclosure to date undermines, in the Court's view, any suggestion that an individual going to Porton Down to review records retained there (the 1998 Scheme) could lead to the provision of all relevant and appropriate information to that person. It is undoubtedly the case that certain records (existing after 1996) were, given their age and nature, somewhat dispersed so that the location of all relevant records was, and could still be, difficult. However, it is equally the case that the absence of any obligation to disclose and inform facilitates this dispersal of records and undermines an individual's right to obtain the relevant and appropriate disclosure.", "Finally, the Porton Down Volunteers Medical Assessment Programme involved only 111 participants and no control group whereas 3, 000 service personnel had participated in nerve gas tests and 6, 000 in mustard gas tests, with some having been involved in both types of test. The full-scale epidemiological study did not begin until 2003 and has not yet been completed.", "167. In such circumstances, the Court considers that the State has not fulfilled the positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information that would allow him to assess any risk to which he had been exposed during his participation in the tests.", "168. It is not therefore necessary to examine the applicant's additional submission that the positive obligation required the completion of a “long - term follow - up study” ( see paragraph 146 above) or the applicant's alternative and secondary arguments outlined in paragraph 148 above.", "169. In conclusion, there has been a violation of Article 8 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "170. The applicant also complained about the inadequate provision of information under Article 10 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for preventing the disclosure of information received in confidence ... ”", "171. While the applicant acknowledged that the Court had preferred to examine such questions under Article 8 to date, he maintained that as a matter of principle the right to seek access to information was an important and inherent part of the protection of Article 10 of the Convention. The Government did not agree.", "172. The Court reiterates its conclusion in Leander v. Sweden ( judgment of 26 March 1987, Series A no. 116, p. 29, § 74) and in Gaskin ( cited above, p. 21, § 52) and, more recently, confirmed in Guerra and Others ( cited above, p. 226, § 53), that the freedom to receive information “prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” and that that freedom “cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to ... disseminate information of its own motion ”. It sees no reason not to apply this established jurisprudence.", "173. There has thus been no interference with the applicant's right to receive information as protected by Article 10 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "174. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "175. As regards pecuniary loss, the applicant considered that the failure to disclose information and the application to him of the section 10 certificate denied him the opportunity to bring proceedings in tort against the MOD armed with the necessary evidence to establish the relevant causal link. Access to the PAT did not assist since the pension system was not an adequate substitute for a civil claim and since the PAT was constrained by the limited evidence available to it which resulted, in turn, from the State's failure to create and properly retain records, to carry out proper short and long- term monitoring of participants and to commission follow-up work and epidemiological studies. While he did not specify the level of damages sought for this loss of opportunity, he indicated that it represented his loss of earnings due to ill-health resulting from his test participation.", "As to his alleged non-pecuniary loss, he claimed to have been denied access to the relevant information for a very long time. This coupled with unsubstantiated assertions by the authorities that no harm was done by the tests only served to cause him substantial anxiety, stress and uncertainty. He made considerable efforts (medical, political and judicial) to obtain the information over almost twenty years. He did not believe that the Rule 6 procedure was the answer and, in any event, he maintained that he still had not had access to all information. The finding of a violation would not adequately compensate him and he considered that it warranted a substantial award, although he did not specify a sum.", "176. The Government observed, as regards both the pecuniary and non-pecuniary loss alleged, that the applicant had access, at all material times, to a pension scheme ( in substitution for a civil action), the PAT and the Rule 6 procedure. He had obtained information under Rule 6, his entitlement to a pension remained open and he would obtain a pension if he were to meet the threshold for an award.", "177. The Court notes that it has not found a violation of Article 6 as regards the impugned section 10 certificate. In addition, the Court's finding of a violation was based on the applicant's right per se to information about his test participation independently of any litigation. In any event, it is not possible to speculate as to the applicant's prospects of establishing a causal link between his test participation and ill-health had he been provided with an “effective and accessible procedure” giving access to “all relevant and appropriate information”.", "178. Nonetheless, the Court considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety: the tests concerned substances which, in theory, were military weapons; he had been ill with chronic respiratory problems since 1987 when he began his search for information; he made substantial and determined efforts to obtain this information through various channels (medical, political and judicial) over a long period of time; disclosure has been gradual and is apparently not complete ( see paragraphs 161 and 166 above). The Court considers that this non-pecuniary loss cannot be compensated solely by the finding of violation.", "179. Having regard to awards made in similar cases, the Court awards, on an equitable basis, 8, 000 euros (EUR), which sum is to be converted into pounds sterling at the date of settlement.", "B. Costs and expenses", "180. The applicant claimed a total sum ( inclusive of value - added tax – VAT) of 100,109.67 pounds sterling (GBP ) in legal costs and expenses for the PAT proceedings and the present application, including the anticipated costs of the hearing before this Court in October 2004.", "In particular, he claimed GBP 86,663.84 as regards the present application, including the fees of a solicitor and a trainee solicitor (almost 100 hours work) and of three counsel (including one Queen's Counsel). The legal costs and expenses of the domestic PAT proceedings amounted to GBP 13, 445.83, including the fees of a solicitor and trainee (for approximately 40 hours work) and of two counsel (one of whom had not been involved in the present application). The relevant fee notes and vouchers were submitted detailing the costs. The applicant did not claim the costs and expenses of his appeal to the High Court from the PAT since Rule 28 of the PAT Rules provided that he was entitled to his costs once leave to appeal was granted.", "181. The Government considered the claims concerning the proceedings before this Court to be excessive. They considered unnecessary the appointment of three counsel (for the present proceedings) and contended that the solicitors'fees should, in any event, have been lower. Certain items of work were vaguely described and counsels'fee rates had not been included. They challenged the necessity for the applicant's lengthy submissions before the Grand Chamber. They maintained that GBP 29,000 would be a reasonable sum in legal costs and expenses for the Convention proceedings. The Government did not comment on the costs and expenses claimed for the PAT proceedings.", "182. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred (in the case of domestic proceedings, in seeking redress for the violations of the Convention found or preventing a violation occurring ) and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Stašaitis v. Lithuania, no. 47679/99, § § 102- 03, 21 March 2002 ).", "183. On the one hand, the present application was of some complexity. It required an examination in a Chamber and in the Grand Chamber including several rounds of observations and an oral hearing. It was adjourned for a number of years pending the applicant's PAT appeal. During the adjournment, the applicant kept the Court informed of progress and thereafter continued the PAT proceedings at the same time as the present application. It is reasonable to accept as necessarily incurred the PAT costs to date (excluding the High Court appeal costs which are not claimed), despite the finding under Article 8 above, given not least that those proceedings have led to disclosure of much documentation as recently as April 2005. Further costs, both in terms of the present application and the PAT proceedings, have been incurred since the date of the oral hearing, the date to which the applicant had estimated his costs and expenses.", "184. On the other hand, the Court considers excessive the appointment of three counsel as well as a solicitor (and a trainee solicitor) to the present application and two counsel (together with a solicitor and trainee) to the PAT proceedings. It is not explained why one of the counsel working on the PAT appeal was not involved in the application to this Court: this would have led to some duplication of work. In addition, and as the Government pointed out, certain items of work in counsels'fee notes are not clearly explained and they have not noted their rates. Moreover, the estimated fees for the hearing before this Court (approximately GBP 37,000 including the travel, accommodation and legal fees of three counsel as well as of a solicitor) are unreasonably high. Furthermore, the applicant's claim under Article 6, which was a significant part of the application, was unsuccessful so that the costs and expenses allowed should be reduced ( see Z and Others, cited above, § 134).", "185. Making its assessment on an equitable basis, the Court awards the sum of EUR 47,000 in respect of the costs and expenses of the PAT proceedings and the present application (which sum is to be converted into pounds sterling at the rate applicable on the date of settlement and is inclusive of any VAT which may be chargeable) less EUR 3,228.72 in legal aid already paid by the Council of Europe.", "C. Default interest", "186. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "9. The applicant was born in 1938 and currently lives in Lancashire.", "10. In 1953 he joined the British army at 15 years of age. He served with the Royal Engineers between February 1954 and April 1968, when he was discharged for reasons unrelated to the present application.", "In 1981 he was diagnosed as suffering from hypertension and late onset bronchial asthma and in 1989 he was found to have high blood pressure and chronic obstructive airways disease (bronchitis – COAD). He has not worked since 1992 or thereabouts and is registered as an invalid.", "A. The Porton Down tests", "11. The Chemical and Biological Defence Establishment at Porton Down (“Porton Down”) was established during the First World War in order to conduct research into chemical weapons with a view to advancing the protection of the United Kingdom's armed forces against such weapons. The research included tests of gases on humans as well as on animals. Servicemen who participated in the tests were paid extra wages.", "12. The applicant participated in such tests at Porton Down. While there was some debate as to whether he attended in 1962, it was not disputed that he did so in July 1963. His service medical records contained no record of any tests at Porton Down.", "1. The tests in 1962 at Porton Down", "13. The applicant alleged as follows. In the spring of 1962 he was invited to Porton Down; he was medically examined on arrival; he was asked on three or four occasions to enter a sealed and unventilated room, where he was seated and strapped to a chair; over a period of about six hours, drops of mustard gas were applied to patches of tissue which were then taped to his skin; he was told that, if he was unlucky, he might suffer temporary pain or discomfort but otherwise he was not given any, or any proper, warning about the possible consequences of the tests for his health; once the tests were finished he returned to his unit; there was no further medical examination after he left Porton Down. He relied on a memorandum and file note of 13 November 1989 ( see paragraph 24 below) and on the conclusions in this respect of 14 January 2004 of the Pensions Appeal Tribunal (“ the PAT” – see paragraph 63 below) to substantiate his participation in tests in 1962.", "14. While the Government did not deny that participation, they pointed to a number of matters that appeared to militate against such a conclusion: the summary and alphabetical record books did not refer to his attendance in 1962 but only to his attendance in 1963; there was no documentary evidence at all of the 1962 tests whereas certain records existed of his 1963 tests; and if the PAT had accepted his participation in the 1962 tests, this was based solely on his recollections.", "2. The tests in 1963 at Porton Down", "15. The nerve gas (known as “ G-agent ” or “GF”) test is described in the relevant records as “exposure to single- breath GF”. The applicant alleged that he was told before the test that the experiment “could not harm a mouse”; that he was placed in an air-tight, glass-partitioned cubicle containing a face mask, the mask was placed over his mouth and nose, the fitting was checked and the chamber was sealed; that a loudspeaker informed him that the test was about to begin and to inhale normally; that he felt an immediate tightening of the chest muscles and lungs which wore off after the end of the test; and that blood samples were taken at regular intervals during the following twenty-four hours. The Government submitted that diluted GF vapours were put into a gas chamber and, as the name of the test suggested, volunteers took a single breath of air with calculated doses of GF gas through a tube connected to that chamber, they held their breath for two seconds and then exhaled.", "16. The other test involved mustard gas and was described in the records as “H sensitivity and penetration”. According to the applicant, it followed the same format as that in 1962.", "The Government added the following detail: the mustard gas test was designed to test the performance of protective clothing and was carried out in two parts. The first was a sensitivity test to determine an individual's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant's upper arm. If after twenty-four hours the test subject had a small red mark, he or she was deemed too sensitive and did not participate any further in the tests. On the other hand, if the participant was not demonstrably sensitive, the second part consisted of putting a drop of dilute mustard gas solution on three samples of protective clothing left in place on the participant's body and the skin under the clothing was examined after six and then twenty-four hours. The participants were monitored before and after the tests. The rooms were properly ventilated, the dosages were small and safe and the tests were carefully planned and controlled.", "B. The applicant's search for relevant records", "17. From 1981 the applicant was medically treated for breathlessness and high blood pressure and by 1987 these problems had significantly worsened. He began to search for his Porton Down records through what he described as “medical” and “political” channels.", "1. The “ medical” route", "18. In response to his doctor's enquiry, in late 1987 the Ministry of Defence ( MOD ) supplied his doctor with his service medical records on a “medical in confidence” basis. Those records did not refer to the applicant's Porton Down tests.", "19. In a letter of 14 November 1989, Porton Down responded to another enquiry from his doctor. The letter was sent on a “medical in confidence” basis and confirmed the applicant's participation in a GF gas test in July 1963. That GF test had been preceded and succeeded by a full medical examination which revealed no abnormality. The letter also referred (inaccurately, as it later emerged – see paragraph 36 below) to seven blood tests conducted after the GF test and to their results and confirmed that “peak flow meter measurements” had also been taken from the applicant and that “breath- holding tests”, a clothing penetration study (apparently, although not expressly noted, the mustard gas tests) and a battery of personality tests were performed. The results of these tests were not included in the letter and no other records supporting the statements made in the letter were enclosed. His doctor's stamp on it indicates that he decided to tell the applicant that all was normal. The applicant persuaded his doctor to show him the letter in 1994.", "20. By a letter dated 14 December 1989, a consultant informed the applicant's doctor that he doubted that the applicant's bronchial asthma was caused by his exposure to nerve gas. Further tests were to be carried out.", "21. A letter from Dr H. (a professor of environmental toxicology at the University of Leeds and later the court-appointed expert witness in the PAT proceedings – see paragraphs 42-68 below) dated 5 December 1994 to the applicant stated that full and detailed records were required to judge the long - term effects of his participation in the tests and that a long- term epidemiological study would have been useful either to establish that there were long- term effects or to reassure test participants that there were none. His letter of 10 July 1996 repeated his view as to the need for such a study.", "22. An internal Porton Down memorandum of 24 November 1997 noted that certain blood - test figures given in the letter to the applicant's doctor of 14 November 1989 were inaccurate. In addition, it was considered that the applicant's description of the tests was roughly consistent with the procedures in the 1960s. While there were no obvious gaps in the 1960s records, it could not be said that the records were complete: the applicant could have attended in 1962 and his name could have been omitted or incorrectly recorded due to a clerical error.", "2. The “political” route", "23. Inter alia, the applicant carried out a sit-in hunger strike at Porton Down, held a press conference in the House of Commons and requested members of parliament to put parliamentary questions.", "24. Between 11 and 14 November 1989, the applicant went on hunger strike outside Porton Down. On 13 November 1989 he spoke with the Secretary of Porton Down. The latter noted in a memorandum of that date that the applicant's description of the tests was strong enough to indicate that he had been there and he recommended a further search of the records. He also recorded in a file note (of the same date) that the applicant's description of his visits to Porton Down in 1962 and 1963 left him with a level of confidence that he had been a volunteer there on both occasions. This led to the letter of 14 November 1989 to the applicant's doctor ( see paragraph 19 above).", "25. In January 1994 the applicant formed the Porton Down Volunteers Association with the object of seeking recognition and redress for test participants. The association has over 300 members to date.", "26. By a letter dated 26 January 1994, the Chief Executive of Porton Down answered, at the request of the Secretary of State for Defence, a series of questions raised by a member of parliament about chemical and biological warfare testing. The Chief Executive's letter described the test procedure, stating that participants were given a medical examination before and after the tests and recalled for check-ups “from time to time”. It was pointed out that there was no evidence that the health of participants had deteriorated because of their test participation. On 22 June 1994 the Chief Executive confirmed the well-established policy of the MOD of releasing service medical records to a veteran's doctor on a “medical in confidence” basis. The Chief Executive's letter of 7 March 1995 (in response to a parliamentary question to the Minister of State for Defence) noted that the tests did not include any plan for long- term systematic monitoring of participants: any monitoring thereafter was purely ad hoc and sporadic.", "27. On 2 February 1994 the applicant wrote to the MOD requesting copies of his medical records and of reports on the relevant tests. The reply of 9 March 1994 from Porton Down recalled the MOD policy of release on a “medical in confidence” basis. The applicant's doctor had been provided with information in 1989 on this basis. It was “entirely up to your own doctor how much or how little of this information he conveys to you”. Further queries from the applicant led to a similar response from Porton Down by letter dated 20 April 1994.", "28. On 12 December 1994 Lord Henley stated in the House of Lords that the MOD would continue to send veterans to their doctors and would release medical records as appropriate. Information was provided to doctors to allow proper diagnosis and “would be released, if necessary”. He repeated that there was no evidence over the previous forty years that test participants had suffered harm to their health.", "29. In response to a series of parliamentary questions put to the Secretary of State for Defence as to the necessity for a public inquiry, the government's representative replied on 28 February 1995 that there was no evidence that any test participants had suffered any long-term damage to their health in the past four decades. Similar responses as to the lack of evidence of harm to the test participants were given by the Minister of State for Defence in Parliament on 4 April and 2 May 1995 in response to questions concerning the instigation of a study into the long-term health effects of exposure to chemical and biological substances.", "30. On 25 April 1995 the applicant and the Labour Party defence spokesman took part in a press conference on the question of Porton Down volunteers and their requirements.", "31. Following a meeting between them, on 2 December 1997 the Minister of State for Defence wrote to the applicant. He referred to the concerns of the applicant (and other test participants) that information about the tests was being withheld. He confirmed that this was not the case but rather reflected “less than thorough” record-keeping than would be currently expected. Henceforth all volunteers would be able to obtain access to all the information held on them at Porton Down and steps would be taken to declassify reports so as to make that information more accessible.", "Certain copies of test documents were enclosed: (a) the alphabetical record book which recorded the applicant's attendance at Porton Down between 13 and 19 July 1963; (b) the summary record book which referred to the two tests carried out on the applicant involving GF and mustard gas and listed the monitoring procedures that were to be carried out on the applicant (chest X -rays, peak flow meter tests, “ x 3 x alcohol ” quiz, breath- holding tests and blood tests); and (c) a report entitled “Effects of Inhaled GF on Man” which described the single breath GF test and contained an analysis of the results of the tests carried out on fifty-six participants, believed to include the applicant's test. It was indicated that these documents were available to any test participant who requested them.", "This was the first material obtained by the applicant about his participation in the tests.", "The letter went on to note that much GF-related research work had already been published in open literature or was in the Public Record Office. The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published between 1957 and 1987. There was no evidence to date to suggest that any volunteer had suffered long - term adverse effects. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical so none had been or would be carried out.", "32. In a letter dated 31 August 1999 to the PAT, Porton Down indicated that it was well acquainted with the applicant, having received numerous communications from him and from members of parliament.", "33. By a letter dated 3 May 2001, Porton Down informed the applicant that it had discovered some old laboratory notebooks that included information about the 1963 tests: one book included some previously unavailable details of the mustard patch tests. A pre-exposure chest X -ray and the associated report card were also now available. The applicant was to contact Porton Down if he wanted to see this material or obtain copies.", "C. Records submitted by the Government in the present application", "34. As well as those disclosed with the Minister of State's letter of 2 December 1997, the following documents were also submitted to the Court.", "1. With the Government's observations of 9 March 1998", "35. The Government indicated that these were all the relevant records that could be traced: (a) an extract from a laboratory record of results of personality and intelligence tests; (b) extracts from laboratory records of GF blood tests – seven blood samples were taken from the applicant; and (c) an explanation of the GF blood - test results.", "2. With the Government's observations of 5 April 2001", "36. The Government corrected their previous explanations of the seven blood samples (see paragraph 19 above): one was taken on 13 July 1963, a second one prior to the applicant's exposure to GF and the remaining five were taken later. They also corrected other errors relating to information provided in their earlier observations about those tests including the following: “the reference to'25 milligrams of GF [vapour per kilogram of body weight]'appears to have been a typographical error. In fact, calculated doses of GF ranged from 0.16 to 2.84 microgrammes per kilogramme of body weight. ” They also disclosed documents recently discovered following a further search: (a) the applicant's pre-exposure X -ray and its associated report card (see paragraph 33 above); ( b) a report dated August 1942 which described the manner in which the sensitivity tests to mustard gas were performed and entitled “Technique of the Physiological Experiments Carried Out on the Human Subjects at [Porton Down]”; and (c) extracts from a laboratory notebook entitled “Overgarment Tests. Mustard on Men”, relating to mid-July 1963 and referring to the applicant.", "D. The applicant's domestic proceedings", "1. Application for a service pension", "37. On 10 June 1991 the applicant claimed a service pension on the grounds of “hypertension/breathing problems” resulting from the Porton Down tests (and, in addition, from his radiation exposure on Christmas Island during the relevant nuclear tests there). The Department of Social Security ( DSS) obtained copies of his service and civilian medical records together with a report from his doctor, which confirmed that he suffered from hypertension, COAD and late onset bronchial asthma. On 28 January 1992 the Secretary of State rejected his claim for a service pension as there was no causal link demonstrated between the tests and those medical conditions. The applicant did not pursue an appeal at that stage.", "2. Certificate under section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”)", "38. The applicant consulted solicitors in 1994 and obtained legal aid for proceedings. By a letter dated 14 November 1994 to the Secretary of State, his solicitors threatened proceedings, alleging, inter alia, negligence, assault and breach of statutory duty on the part of the MOD, and demanding the release of all medical and laboratory records in the possession of the Secretary of State or of Porton Down as regards the test periods in 1962 and 1963, failing which the applicant would apply to the High Court for pre-action discovery. The applicant's representatives met with MOD representatives in early January 1995 on a “without prejudice” basis and by a letter dated 5 June 1995 requested confirmation from the MOD as to whether a certificate would be issued under section 10 of the 1947 Act (“a section 10 certificate”).", "39. By a letter dated 4 July 1995 to the applicant's solicitors, the claims section of the MOD wrote as follows:", "“War Pensions Agency has informed me that a section 10 certificate in respect of acute bronchitis (1963), a bruised knee and loss of hearing will be regarded as attributable to service and a section 10 certificate will be issued. The other ailments for which [the applicant] claimed a war pension have not been regarded as attributable to service.”", "40. On 3 August 1995 a section 10 certificate was signed by the Secretary of State:", "“In so far as the personal injury of [ the applicant ] is due to anything suffered as a result of his service in the Army between 16 February 1954 and 2 April 1968, I hereby certify that his suffering that thing has been treated as attributable to service for the purpose of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, which relates to disablement or death of members of the Army.”", "41. By a letter dated 8 August 1995, the Treasury Solicitor provided a copy of the section 10 certificate to the applicant's representatives.", "3. The Pensions Appeal Tribunals (“ the PAT”)", "42. Following the judgment of this Court in McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III) and the Government's disclosure of certain documents in their observations in the present case (on 9 March 1998), the applicant requested an adjournment of the present application in order to pursue an appeal to the PAT and, in particular, disclosure of documents under Rule 6 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (“the PAT Rules”). The present application was adjourned.", "43. On 1 June 1998 he lodged his PAT appeal. Since the War Pensions Agency (“ the WPA” – a specialised agency of the Department of Social Security) clarified that a further form was required, on 8 November 1998 the applicant re- lodged the appeal.", "44. In February 1999 the applicant received his “ Statement of Case ”. He obtained two extensions of the time-limit for the submission of his “answer” to the Statement of Case (to take advice from an expert chemical pathologist on the documents already disclosed and on those which were also to be requested during the PAT appeal and to consider the intervening observations of the Government in the present application) and he indicated that he would be making an application under Rule 6(1) of the PAT Rules.", "45. On 30 July 1999 his answer was submitted to the WPA along with a letter which noted that the answer included an application for disclosure of documents under Rule 6(1) of the PAT Rules : paragraph 18 of the answer set out a list of seventeen categories of document required by him under that rule.", "46. On 10 August 1999 the WPA responded by pointing out that enquiries were being made to obtain all the information requested under Rule 6(1) of the PAT Rules. Once received, the WPA would ask for the agreement of the President of the PAT to disclose it.", "47. On the same day the WPA wrote to Porton Down enclosing a copy of the applicant's Rule 6 request and asking for the information as soon as possible so that the agreement of the President of the PAT could be obtained.", "48. On 14 March and 13 April 2000 the WPA sent the supplementary Statement of Case (now incorporating the supplemental medical evidence) to the applicant and to the PAT, respectively.", "49. On 3 August 2000 the President of the PAT responded to the applicant's enquiry, indicating that his case had not been listed as it awaited production of further documentary evidence and the Secretary of State's response. However, since the Rule 6 request should not have been made in the applicant's answer to the Statement of Case, that request had just come to light. The applicant was to confirm to the President if he intended paragraph 18 of his answer to constitute his Rule 6 request and, if so, the President would be grateful to receive any observations that would assist his consideration of the relevance of the documents to the appeal issues. The applicant was also to identify the State department to which a Rule 6 direction should be addressed.", "50. On 9 November 2000 the applicant confirmed to the President of the PAT that paragraph 18 of his answer did indeed constitute his Rule 6 request and he made detailed submissions on the matters requested by the President.", "51. By a letter dated 13 November 2000, the President of the PAT requested the applicant to submit a draft direction and attend a hearing on it since he was concerned that the wording of some parts of the Rule 6 request appeared to be ambiguous and lacking in clarity. The applicant submitted a draft direction ( essentially listing those documents already included in paragraph 18 of his answer ).", "52. By an order dated 1 February 2001, the President of the PAT directed, pursuant to Rule 6(1) of the PAT Rules, disclosure of the scheduled documents by the Secretary of State since the documents “were likely to be relevant to the issues to be determined in the appeal ”.", "53. On 6 July 2001 the Secretary of State responded to the direction of the President of the PAT. It was marked “medical in confidence”. It referred to the documents already submitted by the Government to this Court ( see paragraphs 34-36 above). The Secretary of State was unable to give a definitive response to the request for the fifth category of document required (namely, “any scientific or medical reports, whether published or prepared for internal use by Porton Down, the [MOD] or other government departments or agencies of the volunteer studies or experiments in Porton Down between 1957 and 1968 which were similar or related to the studies or experiments in which [the applicant] was involved”). A full and careful review had been undertaken and was a time-consuming process. Many of the documents identified as being possibly relevant to the request were classified. The Secretary of State had asked for an urgent review of the classification to be undertaken and, once the review was completed, he would let the PAT have his full response. Otherwise the Secretary of State provided various explanations of the documents already submitted by the Government to this Court and details of the precise dates on which the applicant would have participated in the tests, of the levels of exposure to gases and of various headings and abbreviations in the disclosed documents. The only documents (additional to those already submitted to this Court) disclosed to the PAT were the applicant's service and payment records, the latter of which included a payment for attendance for a week at Porton Down in July 1963.", "54. The MOD's letter was passed to the applicant on 25 July 2001. By a letter dated 19 July 2002, the applicant wrote to the PAT apologising for not having responded and explaining the reasons for the delay.", "55. By a letter dated 23 August 2002, the MOD disclosed documents concerning the above-described fifth category: two reports entitled “The feasibility of performing follow- up studies of the health of volunteers attending [Porton Down]” and “The single-breath administration of Sarin”, from which individual names had been blanked out. The feasibility report acknowledged that the records held at Porton Down prior to the late 1970s generally consisted of the name, service number and age of participants at the date of testing but were not “sufficient to allow either a comprehensive morbidity study or mortality study to proceed”. While a study could be carried out on post-1976 test participants, “such a study would be of very limited value and may only serve to draw attention to [Porton Down's] interest in possible long - term health problems experienced by volunteers”. The feasibility report concluded that a comprehensive follow- up study of all volunteers was “impractical”. Porton Down's library catalogue had also mentioned a document entitled “Unique papers relating to early exposure of volunteers to GD [O-Pinacolyl methylphosphonoflouidate, commonly known as Soman] and GF and DM [diphenylaminearsine chloride, commonly known as Adamsite]”. However, a copy of this document could not be located. A letter of 20 August 2002 was also enclosed which certified that nine of the requested documents were “in the nature of departmental minutes or records” and would not therefore be disclosed (Rule 6(1) of the PAT Rules).", "56. A hearing was fixed for 3 October 2002. On 27 September 2002 the applicant was obliged to request an adjournment since his counsel had advised that further questions needed to be put to Dr H. On 30 September 2002 the PAT declined to adjourn, indicating that it was unlikely Dr H. could or would prepare a report.", "57. On 2 October 2002 the MOD wrote to the PAT and the applicant. While nine documents had been previously certified as non-disclosable, ( letter of 23 August 2002 – see paragraph 55 above), seven of those nine documents could now be disclosed. The MOD had “had the opportunity of re-examining the documents ... with a view to assessing whether [they] could be the subject of voluntary disclosure ... in an effort to ensure that everything that can be disclosed has been disclosed and so as to ensure the maximum openness and the maximum assistance to the [PAT]”. Certain blocking out had been done on some disclosed documents to protect the identities of staff involved and to excise irrelevant material. Two documents could still not be disclosed : the first did not appear “to contain anything of relevance” to the applicant's tests and, in any event, “contained information which remains security sensitive and is not properly subject to voluntary disclosure on security grounds”; and the second required permission from the United States before it could be disclosed.", "58. The appeal was scheduled for 3 October 2002. The applicant applied for an adjournment supported by the Veterans Agency (the successor of the WPA – “ the VA”). The PAT decision (delivered on 7 October 2002 ) recorded as follows:", "“The [PAT] are deeply disturbed that this application has proved necessary as a result of the [applicant's] advisers'failure to consider documents disclosed over a year ago, in a timely fashion.", "However, since the [VA] also appear to be without documentation and there is confusion by the [applicant] as to whether he also wishes to appeal for hypertension, we have reluctantly decided to allow the adjournment.", "It is highly unsatisfactory that Court resources have been wasted in this way. To prevent this happening in the future the Tribunal intend to exercise some control over the ongoing progress of the appeal.”", "The PAT was to clarify with the MOD the status of certain classified documents and the extent to which they could be released to the public, and directed the MOD to provide, by 21 October 2002, disclosure of further documents. The MOD, the VA and the applicant were to notify the PAT by 18 November 2002 of the questions and documents it wanted Dr H. to examine. It was intended that the PAT would add its own questions and submit a composite questionnaire to Dr H. who would report in response to the PAT. The applicant was also to confirm his position as regards the hypertension appeal by 28 October 2002.", "59. On 21 October 2002, the MOD disclosed to the PAT three declassified documents. These were forwarded by the PAT to the applicant by a letter dated 8 November 2002, accompanied by a warning that the MOD had released the documents for the purpose of the appeal and that no information in them was to be used for any other purpose without the consent of the MOD. By a letter dated 25 October 2002, the applicant confirmed that his appeal had been intended to cover hypertension also, he explained the reasons for his confusion and he requested an extension of time to so appeal. A hypertension appeal form was lodged with the PAT on 5 December 2002.", "60. By a letter dated 3 December 2002, the PAT wrote to Dr H. enclosing the documents disclosed by the MOD ( at that point ) with two sets of questions (prepared by the applicant and the medical member of the PAT). By a letter dated 19 February 2003, Dr H. provided the PAT with a report. The applicant having noted that Dr H. had omitted to respond to the PAT questions, Dr H. did so in a supplemental report sent to the PAT under cover of a letter dated 14 May 2003.", "61. In a document dated 14 October 2003, the MOD submitted its comments on Dr H .'s reports. On 16 October 2003 the VA submitted a supplementary Statement of Case.", "62. The PAT appeal hearing took place on 23 October 2003. It allowed the hypertension appeal to be heard out of time but, once it became clear that the VA had not processed the appeal documentation filed by the applicant, the PAT reluctantly granted the MOD an adjournment to allow the VA time to “properly consider all the evidential material and prepare a reasoned medical opinion”. The COAD appeal was, however, dismissed.", "63. On 14 January 2004 the PAT delivered its written decision. As to the facts, the PAT accepted that the applicant had undergone tests for mustard gas “some time in 1962 as well as the documented tests in July 1963” despite the fact that there was no reference in his service records or in other research records to the 1962 test. The PAT also found “disquieting” the “difficulties” experienced by the applicant in obtaining the records which were produced to the PAT. The PAT also established the following facts:", "“1. We find that [the applicant] suffered no long - term respiratory effect from skin contact with mustard gas following both tests in 1962 and 1963.", "2. We find that [the applicant] was administered only small doses of mustard gas and GF gas which would have resulted in minimal exposure to mustard gas by off - gassing and a limited and transitory reaction to the GF gas. Although no records relating to doses exist, the mustard gas tests were designed to test the suitability of military clothing to exposure and were not a gas test per se. Furthermore, after a fatality at Porton Down in 1953, safeguards were put in place to ensure that volunteers were only exposed to safe dosages.", "3. The compelling weight of the evidence is that [the applicant] did not receive, in any of the tests, dosages likely to have long- term effects as described in the research papers. In particular, the [PAT expert], although accepting the possibility that given further research through a long- term follow - up study a link might be found, concludes that there is no evidence to link [the applicant's] exposure to either gases with his present condition. We accept [the PAT expert's] conclusion that, given the limited doses and [the applicant's] minimal immediate reactions, this would rule out a link between the tests and the claimed conditions.", "4. We particularly rely on [Dr H .'s] expert report. He has analysed the specific data relevant to [the applicant's] case and considered the conditions for which he is claiming in relation to that specific data. The research papers relied on by the [applicant], although of some evidential value, are very general and speculative. We therefore prefer the evidence, and the conclusions reached by [Dr H .] in his reports. ”", "The PAT also accepted, as a matter of law, that it was sufficient to show that the proved service event was only one of the causes of the condition even if there were other contributory factors. However, it stated :", "“2. We do not accept that the lack of possible evidence of other follow-up tests is sufficient to constitute reliable evidence.", "3. We find that there is some reliable evidence surrounding the Porton Down tests for which [the applicant] volunteered. However, this evidence tends, if anything, to support the view that there is in fact no link between those tests and [the applicant's] current conditions. The test of reasonable doubt is not therefore met.", "4. There is no reliable evidence to suggest a causal link between the tests for either mustard gas or GF gas and the claimed condition.", "5. [The PAT expert's] views that'he cannot exclude the possibility'of a link between exposure to GF and/or mustard gas and the claimed condition, does not meet the'reasonable doubt'test. Furthermore, he'rules out'exposure to GF as a cause and deems it'unlikely'that mustard gas is a cause.", "6. Finally, [the applicant's counsel] invites us to allow the appeal for reasons which can be summarised as'general fairness'. The [PAT] does not have legislative or discretionary power to do so. The decision of the [PAT] is to disallow the appeal for [COAD].”", "64. On 4 February 2004 the applicant applied to the PAT for leave to appeal to the High Court (on the COAD matter) and for a stay of the hypertension appeal then pending before the PAT. On 26 April 2004 leave was refused, the PAT's reserved decision being delivered on 28 April 2004.", "65. On 11 May 2004 the applicant applied for leave to appeal to the High Court. On 13 July 2004 leave was granted.", "66. The applicant's appeal notice and supporting skeleton argument were submitted on 10 August 2004. The appeal was listed to be heard on 7 October 2004.", "67. On 8 October 2004 the High Court allowed the appeal and referred the matter back to the PAT for a further hearing.", "68. On 7 March 2005 a directions hearing was held before the PAT. It ordered the hypertension and COAD appeals to be heard together and mutual disclosure of any further documents relevant to the appeal by 18 April 2005. On the latter date the Treasury Solicitor produced a “schedule of disclosure” listing and disclosing eleven documents: apart from three items, the applicant had not seen them before. The Treasury Solicitor maintained that disclosure of most of the documents (including two sets of minutes of meetings which Rule 6 specifies can be withheld) was not obligatory as they were of marginal relevance, noted that all documents had been downgraded to “unclassified” and indicated that the MOD would endeavour to produce the annexes referred to in certain documents.", "E. Information services and health studies", "69. The armed forces have, since 1998, put in place a service to deal with enquiries from Porton Down test participants (“the 1998 Scheme”). The relevant information pamphlet noted that participants could request their test records, that a search would be carried out for references to that person and for additional evidence of actual procedures, that a summary would be provided and that, if the person wanted to go to Porton Down, he or she could obtain the actual records. While the pamphlet noted that reasonably comprehensive records had existed since 1942, individuals had to accept that old records in some cases were very sparse, that record keeping in years gone by was not up to current standards and that in certain cases a person's attendance might not even have been marked. The pamphlet claimed that no participant was worse off after the Porton Down tests.", "70. In 2001 the Porton Down Volunteers Medical Assessment Programme was established by the MOD to investigate health concerns of Porton Down test participants. The study involved 111 participants but no control group. The report, published in April 2004, was entitled “Clinical Findings in 111 Ex-Porton Down Volunteers”. It noted that over 20,000 had participated in the tests since Porton Down's establishment in 1916 and that 3, 000 had participated in nerve gas tests and 6, 000 in mustard gas tests, with some servicemen having been exposed to both. It concluded that:", "“On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age.”", "71. From July 2002 the MOD funded “an initial pilot research project” on mortality and cancer incidence among Porton Down test participants. It compared 500 participants with a control group of 500 other servicemen and the decision was taken that a full-scale epidemiological study should be undertaken. By mid-2003 this had begun and it was expected to take about two years to complete.", "72. Further to the death of Aircraftsman Maddison in May 1953 after being exposed to Sarin gas (also referred to as GB gas, a nerve agent related to GF), a coroner's inquest was held and recorded “death by misadventure”. An application was brought for a fresh inquest alleging, inter alia, that incomplete evidence had been brought before the coroner and in November 2002 the Court of Appeal ordered a fresh inquest. It concluded on 15 November 2004 with the jury finding that the cause of Mr Maddison's death was the “application of a nerve agent in a non-therapeutic experiment”. Judicial review proceedings appear to be pending.", "In or around 2004- 05 a non-governmental organisation (“Porton Down Veterans”) discovered during searches in the Public Record Office two letters of May and August 1953 containing legal advice from the Treasury Solicitor to the MOD about Mr Maddison's case and about section 10 of the 1947 Act. That organisation sent this material to the Veterans Policy Unit – Legacy Health Issues of the MOD on 7 February 2005. The Treasury Solicitor's letter of August 1953 noted as follows:", "“When the case was referred to me previously I did consider the relevance of section 10 of the Crown Proceedings Act 1947 but I came to the conclusion that it had no application. On the information before me I am still of that opinion. Subsection (1) of that section, which deals with injuries caused by acts of members of the Armed Forces, can have no application since the administration of the GB gas to ... Maddison was (so I understand) carried out by [civilian] personnel and not by any member of the Armed Forces. Subsection (2) also seems inapplicable. [It] provides that no proceedings in tort are to lie against the Crown for death or personal injury due to anything suffered by a member of the Armed Forces if that thing is suffered by him'in consequence of the nature or condition of any equipment or supplies used for the purposes of the Armed Forces of the Crown'. As I understand the facts of this case, GB gas cannot be said to be a'supply used for the purposes of the Armed Forces'at all, it being purely an experimental substance and one which has never been used for the purposes of the Armed Forces. If this is correct, then section 10 of the 1947 Act cannot protect the Crown or the Minister from liability.”" ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Civil actions by servicemen against the Crown", "1. Prior to 1947", "73. It was a well-established and unqualified common- law rule that the Crown was neither directly nor vicariously liable in tort.", "74. The rule was counterbalanced in several ways. Actions against the errant serviceman would be permitted in which case the Crown would invariably (if the defendant was acting in the course of his duty) accept responsibility for any damages awarded. In cases where the individual author of the injury could not be identified, a nominee defendant would be appointed to enable the claim to proceed. In addition, from 1919 a serviceman injured in the course of war service was entitled to a disability pension and his spouse to a pension. The scope of these entitlements later widened to include disability or death caused by injury attributable to any service in the armed forces (war service or not). A feature of these successive schemes was that entitlement to a pension did not depend on proof of fault against the Crown.", "75. Further to strong criticism of the Crown's position as litigant, in the 1920s legislation was envisaged that would make the Crown liable in tort. The 1924 terms of reference of the drafting committee were to prepare a bill to provide, inter alia, that the Crown should become liable to be sued in tort. Clause 11 of the draft bill produced in 1927 (and never adopted) provided, under the heading “Substantive Rights”, that : “Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort. ” This provision was made subject to clause 29(1 ) ( g) which read:", "“Except as therein otherwise expressly provided, nothing in this Act shall–", "...", "(g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid ... ”", "2. The Crown Proceedings Act 1947 (“the 1947 Act”)", "76. The 1947 Act made far-reaching changes, both substantive and procedural, to the Crown's liability to be sued.", "77. The 1947 Act was divided into four parts: Part I “Substantive law” (sections 1-12 of the Act); Part II “Jurisdiction and procedure”; Part III “Judgments and execution”; and Part IV “ Miscellaneous”.", "78. Section 1 provides for the Crown to be sued as of right rather than by a petition of right sanctioned by Royal fiat.", "79. Section 2 of the 1947 Act provides:", "“ Liability of the Crown in tort", "(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject :–", "(a) in respect of torts committed by its servants or agents;", "(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and", "(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property:", "Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate.”", "80. Members of the armed forces were to be treated differently. If they died or were injured in the course of their duties, the Crown could not be sued in tort once the Secretary of State certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension. In particular, section 10 of the 1947 Act was entitled “Provisions relating to the armed forces” and provided as follows:", "“(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if –", "(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown; and", "(b) the [Secretary of State] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:", "Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.", "(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if –", "(a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and", "(b) the [ Secretary of State] certifies as mentioned in the preceding subsection;", "nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.", "(3) ... a Secretary of State, if satisfied that it is the fact : –", "(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or", "(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;", "may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies.”", "The words in section 2 of the 1947 Act “subject to the provisions of this Act” rendered section 2 subject to the provisions of section 10 of the 1947 Act.", "3. The Crown Proceedings (Armed Forces) Act 1987 (“the 1987 Act”)", "81. The exception contained in section 10 of the 1947 Act was removed by the 1987 Act. This removal was not retrospective. Accordingly, after 1987 claims in tort by members of the armed forces (or their estates) who had died or been injured as a result of conduct that took place prior to 1987 could not proceed if the Secretary of State issued the relevant certificate. The reasons the law was prospective only were explained by the member of parliament introducing the bill as follows (Hansard, HC, 13 February 1987, col. 572):", "“Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would be clearly wrong to impose retrospective liability on a serviceman for past actions, even if the Crown, his employer, were to stand behind him. That would involve individuals who are alleged to be guilty of negligence over the years being brought to book in a court of law for actions [for] which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, ... where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants? How could there be a logical cut-off point for considering claims either by the [MOD] or the courts. How could those whose claims which fell on the wrong side of the arbitrary line be satisfied? How could the [MOD], and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available?", "Those are practical questions to which, sadly, there are no ready answers. For that reason, I believe that the only reasonable course of action is to legislate for the repeal of section 10 from the date of enactment.”", "4. The Limitation Act 1980", "82. Section 11 of this Act provides that any action for damages for personal injury must be brought within three years of the cause of action arising.", "B. The case of Matthews v. Ministry of Defence", "83. Mr Matthews served in the Royal Navy between 1955 and 1968. In 2001 he brought proceedings in negligence against the MOD (alleging the MOD's negligence and breach of statutory duty and its vicarious liability for the negligence and breach of duty of his fellow servicemen) claiming that he had suffered personal injury as a result of his exposure to asbestos fibres and dust while performing his duties as a serviceman.", "1. The High Court's judgment of 22 January 2002 ( [2002] EWHC 13 (QB) )", "84. On the preliminary issue of whether the MOD could be sued under section 10 of the 1947 Act, the High Court found that provision to be incompatible with Article 6 § 1 of the Convention.", "85. In deciding whether section 10 amounted to a procedural or substantive limitation on his rights, the High Court considered that the issue turned on whether a section 10 certificate extinguished not only Mr Matthews'right to sue for damages but also his primary right arising from the Crown's duty of care:", "“If, after the passing of the 1947 Act, he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, section 10 merely extinguished his secondary right to claim damages for its breach, and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right. ”", "In concluding that section 10 amounted to a procedural bar to an existing right of action in tort and in thus finding Article 6 applicable, the High Court relied, in particular, on Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (judgment of 10 July 1998, Reports 1998-IV) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI).", "86. The limitation therefore had to be subjected to a proportionality test. In this respect, the High Court concluded that the disadvantages of a pension scheme were such that access to it was an “exceptionally, indeed an unacceptably” high price to pay for the advantage of not having to prove fault, an advantage that would only apply when the question of the fault of the other party was in doubt. Neither was the High Court convinced that the choice to repeal the 1947 Act prospectively was proportionate, considering, inter alia, that the finding of liability for conduct that was not a basis for liability when it took place was far less pernicious a solution than denying proper damages to persons injured as a result of negligence.", "2. The Court of Appeal's judgment of 29 May 2002 ( [2002] EWCA Civ 773 )", "87. The Court of Appeal allowed the MOD's appeal. Section 10 had a substantive and not procedural effect and the High Court's reliance on Fogarty, cited above, was mistaken. The Master of the Rolls stated that:", "“The requirement in section 10 for a certificate from the Secretary of State as a precondition to defeating a claimant's cause of action is an unusual one and not easily analysed, and it cannot be treated simply as an option to impose a procedural bar on the claim. ”", "88. In so finding, the Court of Appeal rejected the MOD's objection, based on Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 ‑ VIII ) and, more recently, R. v. Belgium (no. 33919/96, 27 February 2001), to the applicability of Article 6 § 1, the Court of Appeal finding that Pellegrin was concerned solely with “disputes raised by servants of the State over their conditions of service” whereas the proceedings before the Court of Appeal concerned the nature and effect of section 10 of the 1947 Act on a claim in tort against the MOD.", "3. The House of Lords'judgment of 23 February 2003 ( [2003] UKHL 4 )", "89. The applicant appealed, arguing that the Court of Appeal had ignored a clear principle established by Fogarty. The MOD did not pursue the Pellegrin argument.", "90. The House of Lords (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Walker of Gestingthorpe) unanimously rejected the appeal. The House of Lords considered the maintenance of the distinction between procedural and substantive limitations on access to a court to be a necessary one since Article 6 was concerned with procedural fairness and the integrity of a State's judicial system rather than with the substantive content of its national law. However, the House of Lords acknowledged the difficulty in tracing the borderline between the substantive and procedural, considering the Convention jurisprudence to be indicative of some difficulty in this respect. Drawing on the text, historical context, legislative intent and the actual operation of section 10 of the 1947 Act and, further, on a comprehensive analysis of the Convention jurisprudence and applicable principles, the House of Lords concluded that section 10 of the 1947 Act maintained the existing lack of liability in tort of the Crown to service personnel for injury suffered that was attributable to service and served to ease servicemen towards the no-fault pension option by taking away the need to prove attributability. It amounted therefore to a substantive limitation on the liability of the Crown in tort to servicemen for service injury to which Article 6 § 1 did not apply.", "91. Having reviewed the Convention jurisprudence, Lord Bingham noted that, whatever the difficulty in tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, an accurate analysis of a claimant's substantive rights in domestic law was, nonetheless, an essential first step towards deciding whether he had, for the purposes of the autonomous meaning given to the expression by the Convention, a “civil right” such as would engage Article 6.", "Lord Bingham went on to outline the historical evolution of section 10, considering it clear that there was no parliamentary intention to confer any substantive right to claim damages. “Few common- law rules were better-established or more unqualified”, he began, “than that which precluded any claim in tort against the Crown” and because “there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available”. Claims referred to as “exempted claims” against the Crown for damages for, inter alia, injury sustained by armed forces personnel while on duty were “absolutely barred”. When proposals for reform were put forward in the 1920s, “no cause of action was proposed in relation to the exempted claims”. When the Crown Proceedings Bill was introduced into Parliament in 1947 it again provided that the exempted claims should be “absolutely barred”, but those fulfilling the qualifying condition would be compensated by the award of a pension on a no-fault basis.", "When what was to become section 10(1) was amended uncontentiously in the House of Commons, the intention was not to alter the “essential thrust of the provision as previously drafted”. The object of the new certification procedure was to “ease the path of those denied any right to a common - law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the award of a pension”. Whereas the issue of a certificate under section 10(3) of the 1947 Act was discretionary as shown by the permissive “may”, no such permissive language applied to the issuance of a certificate under section 10(1)(b). “It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate as was the invariable practice of successive Secretaries of State over the next forty years. ” Although different language had been used over the years, “the English courts had consistently regarded section 10(1) as precluding any claim at common law”. It was in fact the “absolute nature of the exclusion imposed by section 10(1)” (coupled with the discrepancy, by 1987, between the value of a pension and of a claim for common- law damages) which fuelled the demand for the revocation of section 10 and led to the 1987 Act. In deciding whether section 10(1) imposed a procedural bar or denied any substantive right, regard had to be had to the practical realities and, in that respect, the Secretary of State's practice had been “uniform and unvarying” so that any practitioner would have advised Mr Matthews that a section 10 certificate was “bound to be issued”. Lord Bingham found Fogarty to be “categorically different” from Matthews and concluded, for reasons closely reflecting those of the Court of Appeal and of Lord Walker (see below), that the appeal was to be rejected.", "92. As regards the distinction between substantive and procedural bars to a judicial remedy, Lord Walker conducted a comprehensive analysis of the Convention jurisprudence, highlighting what he considered to be inconsistencies and the difficulties in applying it:", "“127. The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the Strasbourg jurisprudence on Article 6 § 1, but the cases do not speak with a single clear voice. That is hardly surprising. The distinction, although easy to grasp in extreme cases, becomes much more debatable close to the borderline, especially as different legal systems draw the line in different places ...", "...", "130. I have already referred to several of the most important Strasbourg cases, but it is useful to see how two contrasting themes have developed since the seminal Golder decision in 1975. Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant's access to the court, whether or not the restriction should be classified as procedural in nature. Others attach importance to the distinction between substance and procedure.", "131. The first case to note is Ashingdane v. the United Kingdom ... Section 141 (1) [of the Mental Health Act 1959] imposed substantive restrictions on his rights of action (requiring bad faith or negligence) and subsection (2) imposed a procedural restriction (the need for the Court's permission for the commencement of proceedings). The Commission ... agreed with the parties that'it is immaterial whether the measure is of a substantive or procedural character. It suffices to say that section 141 acted as an unwaivable bar, which effectively restricted the applicant's claim in tort'. But the Commission considered that the restrictions were not arbitrary or unreasonable, being intended to protect hospital staff from ill-founded or vexatious litigation. The Court ... took a similar view.", "132. In Pinder v. the United Kingdom ... (from which Ketterick and Dyer are not significantly different) the Commission took the view ... that section 10 of the 1947 Act brought about the substitution of a no-fault system of pension entitlement for the right to sue for damages, and that that removed the claimant's civil right:'It follows, therefore, that the State does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to “ a pressing social need ” as contended by the applicant .'However the Commission then ... referred to its report in Ashingdane and stated:'These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court, as in the Ashingdane case, but also in respect of a substantive immunity from liability as in the present case. The question, therefore, arises in the present context, whether section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant's substantive civil claims. '", "133. The Commission held that section 10 was not arbitrary or disproportionate ...", "134. Powell and Rayner v. the United Kingdom ... was concerned with the effect of section 76(1) of the Civil Aviation Act 1982 on persons complaining of noise from aircraft travelling to and from Heathrow Airport. Section 76(1) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances, and its flight was not in breach of the provisions of the Act or any order made under it. In unanimously rejecting the claimants'claim under Article 6 § 1 the European Court of Human Rights simply relied on the fact that the applicants had no substantive right to relief under English law. It rejected a subsidiary argument that the claimants'residuary entitlement to sue (in cases not excluded by section 6(1)) was illusory.", "135. The Court's approach in Fayed v. the United Kingdom ... was much less straightforward. ... The Court's discussion of the relevant principles contained ... the following passage ... :'Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. '", "136. It is hard to tell how far the last sentence of this passage goes. The Court then referred ... to the distinction between substantive and procedural restrictions:'It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy .'The Court did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of Article 8 (respect for private life), even though there was in fact no complaint under Article 8.", "137. In Stubbings v. the United Kingdom ... and Tinnelly & Sons Ltd v. the United Kingdom ..., the Court considered whether restrictions on access to the court (in section 2 of the Limitation Act 1980 and section 42 of the Fair Employment ( Northern Ireland ) Act 1976 respectively) were justifiable without adverting expressly to the distinction between substantive and procedural bars. In Waite and Kennedy v. Germany ..., the Commission ... described the immunity as merely a procedural bar, and as such requiring justification. The Court took the same view, regarding ... the claimants'access to some unspecified procedures for alternative dispute resolution as being a material factor.", "138. The two most recent cases are of particular importance. In Z [ and Others ] v. the United Kingdom ..., the Court ... held that there had been no breach of Article 6 § 1 in your Lordships'decision in X v. Bedfordshire County Council [1995] 2 AC 633 as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of five years while their suffering was known to the local authority (but they were not the subject of any care order). ... The whole of the Court's judgment on Article 6 § 1 ... merits careful study, but its essence appears from the following passages ... : ...'The Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in the Ashingdane judgment .'In reaching these conclusions the majority of the Court stated in plain terms that its decision in Osman had been based on a misunderstanding of the English law of negligence.", "139. Finally there is Fogarty v. the United Kingdom ... That case was decided about six months after Z and by a constitution of the Court several of whose members had sat (and some of whom had dissented) in Z. In Fogarty the Court repeated verbatim ... the passage from Fayed which I have already quoted. It rejected ... the United Kingdom's argument that because of the operation of State immunity the claimant did not have a substantive right under domestic law. The Court attached importance to the United States'ability to waive (in fact the judgment said'not choose to claim') immunity as indicating that the bar was procedural. Nevertheless, the Court concluded ... that:'measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity. '", "140. In trying to reconcile the inconsistencies in the Strasbourg jurisprudence it might be tempting to suppose that the Court's wide and rather speculative observations in Fayed (which were not its grounds for decision) marked a diversion which proved, in Z, to be a blind alley. But that explanation immediately runs into the difficulty that in Fogarty, six months after Z, the Court (constituted by many of the same judges) chose to repeat, word for word, the observations made in Fayed. The uncertain shadow of Osman still lies over this area of the law.", "141. Nevertheless [Mr Matthews'counsel] conceded that in order to succeed on the appeal, he had to satisfy your Lordships that section 10 of the 1947 Act constituted a procedural bar. He equated this task with satisfying your Lordships that Mr Matthews had at the commencement of his proceedings a cause of action against the [MOD], and that that cause of action was cut off (or defeated) by the [MOD's] invocation of the section 10 procedure. He treated this event as indistinguishable from the United States government's invocation, in Fogarty, of the defence of State immunity (to be precise, its decision not to waive State immunity). In each case, [Mr Matthews'counsel] argued, the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced.", "142. In my view, [Mr Matthews'counsel's] concession was rightly made. Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that Article 6 is, in principle, concerned with the procedural fairness and integrity of a State's judicial system, not with the substantive content of its national law. The notion that a State should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to Article 6 § 1, as the Commission said in Dyer ... (in a report, specifically dealing with section 10 of the 1947 Act, which has been referred to with approval by the Court in several later cases).", "143. In the circumstances [Mr Matthews'] argument clings ever more closely to the bare fact that Mr Matthews had a cause of action when he issued his claim form, and that his claim could not be struck out as hopeless unless and until the Secretary of State issued a certificate under section 10. But European human rights law is concerned, not with superficial appearances or verbal formulae, but with the realities of the situation ( Van Droogenbroeck v. Belgium ... ). [Mr Matthews'] argument does, with respect, ignore the realities of the situation. It is common ground that the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity (which may be by no means a foregone conclusion, especially in politically sensitive employment cases). The decision whether or not to waive immunity in Fogarty really was a decision about a procedural bar, but I am quite unpersuaded that it provides a parallel with this case. The fact is that section 10 of the 1947 Act did in very many cases before 1987, and still does in cases of latent injury sustained before 1987, substitute a no-fault system of compensation for a claim for damages. This was and is a matter of substantive law and the provision for an official certificate (in order to avoid or at least minimise the risk of inconsistent decisions on causation) does not alter that. Section 10(1)(b), taken on its own, is a provision for the protection of persons with claims against the [MOD]. I respectfully agree with Lord Bingham's analysis of the legislative history of the 1947 Act and with the conclusions which he draws from it.", "144. In these circumstances I do not consider it necessary or desirable to attempt to assess whether section 10, if tested as a procedural bar, would meet the test of proportionality. There would be serious arguments either way and as it is not necessary to express a view I prefer not to do so.”", "93. Lord Hoffmann agreed with Lord Walker's reasoning and conclusions and made certain additional observations. He noted that Mr Matthews'counsel (also counsel for the present applicant) had conceded that, if the 1947 Act simply said that servicemen had no right of action, it would not have infringed Article 6. Mr Matthews argued, however, that the structure of the 1947 Act was such that he had a civil right (a cause of action in tort) until a section 10 certificate was issued; if no certificate had been issued he would have been able to prosecute his action before the courts; and section 10 therefore gave the Secretary of State a power at his discretion to cut off the applicant's action and prevent him from bringing it before the courts. Lord Hoffmann pointed out that, if the purpose of section 10(1 )( b) and (2)(b) had been to give the Secretary of State a discretionary power “to swoop down and prevent people with claims against the Crown from bringing them before the courts”, he would have agreed since such executive interference would run counter to the rule of law and the principle of the separation of powers. However, referring to the historical analysis of Lord Bingham, he considered it clear that section 10 delimited the substantive cause of action and the section 10 certificate was no more than a binding acknowledgment by the Secretary of State of the “attributable to service” requirement for an award of a pension, the quid pro quo for the inability to sue in tort. He too considered distinguishable Tinnelly & Sons Ltd and Others and McElduff and Others ( Matthews did not involve any encroachment by the executive upon the functions of the judicial branch) and Fogarty (having regard to the discretion available to the foreign government to submit or not to jurisdiction).", "94. Lord Hope analysed in some detail the Convention jurisprudence and principles, the history of the 1947 Act, the text and operation of section 10 and the section 10 certification process. He noted:", "“72. The overall context is provided by the fact that section 10 falls within the same Part [I] of the Act as section 2. Section 2, by which the basic rules for the Crown's liability in tort are laid down, is expressed to be'subject to the provisions of this Act'. Section 10 is an integral part of the overall scheme of liability which is described in Part I of the Act. This was all new law. None of the provisions in this Part which preserved the Crown's immunity from suit in particular cases could be said, when the legislation was enacted, to be removing from anybody a right to claim which he previously enjoyed.", "73. As for section 10 itself, ... [i]t proceeds on the assumption that if a claim is made under section 2 of the Act the Secretary of State will have to form a view, on the facts, as to whether or not the case is covered by the immunity. The Secretary of State is told that he cannot have it both ways. He is not allowed to assert the immunity without making a statement in the form of a certificate in the terms which the condition lays down. This has the effect of preventing him, as the minister responsible for the administration of the war pension scheme, from contesting the issue whether the suffering of the thing was attributable to service for the purposes of entitlement to an award under that scheme. This is a matter of substantive law. It is an essential part of the overall scheme for the reform of the law which the 1947 Act laid down. It does not take anything away from the claimant which he had before. On the contrary, it has been inserted into the scheme of the Act for his benefit.”", "Lord Hope concluded, in full agreement with the reasons expressed by Lord Walker, that section 10 amounted to a substantive limitation on the right to sue the Crown in tort.", "95. Lord Millett's judgment also contained a comprehensive assessment of the Court's jurisprudence, the historical context and text of section 10 and the consequent purpose of the section 10 certificate. He noted:", "“ If the serviceman brought proceedings against the Crown for damages, the question at once arose whether his injury was sustained in circumstances which qualified him for a pension, for if it was the Crown was not liable in damages. Sometimes the Secretary of State had already conceded, or the Tribunal had already found, that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown. If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action.", "... In such circumstances the Secretary of State had no discretion whether to grant or withhold a certificate. He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success. It was his duty as a public servant to ascertain the facts and certify or not accordingly.”", "Lord Millett considered it plain that the section 10 certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. As regards Fogarty, and unlike the other Law Lords, he considered that immunities claimed by a State which conformed to generally accepted norms of international law fell outside Article 6 entirely. For the reasons outlined by each of their Lordships with which he agreed, he would also dismiss the appeal.", "C. Service pensions", "1. Entitlement to a service pension", "96. The scheme currently in force for the payment of a service pension in respect of, inter alia, illnesses and injuries attributable to service is contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”).", "97. The basic condition for the award of a pension is that “the disablement or death of a member of the armed forces is due to service” (Article 3 of the Pensions Order). “Disablement” is defined as “physical or mental injury or damage, or loss of physical or mental capacity” (Schedule 4 to the Pensions Order). Where claims are made more than seven years after the termination of service, Article 5(1)(a) provides that the disablement or death is to be treated as “due to service” if it is due to an injury which is either attributable to service after 2 September 1939 or existed before or arose during such service and was and continues to be aggravated by it.", "98. The Pensions Order provides that where, upon reliable evidence, a reasonable doubt exists whether the above conditions are fulfilled, the benefit of that doubt must be given to the claimant (Article 5(4)).", "2. The procedure for pension claims and appeals", "99. The scheme for the payment of pensions is administered by a specialised agency of the DSS, formerly the War Pensions Agency (“WPA”) and now the Veterans Agency (“VA”). On receipt of an application, the VA, inter alia, obtains the claimant's service records (including service medical records) from the MOD and, with the assistance of additional medical evidence if required, assesses whether the claimant is suffering from a disability attributable to service. The Secretary of State decides on the basis of this assessment whether to award a service pension.", "100. A claimant who is refused a war pension by the Secretary of State may appeal to the PAT (see the Pensions Appeal Tribunals Act 1943) in accordance with the PAT Rules. This body is composed of a lawyer, a doctor and a serviceman or ex-serviceman of the same sex and rank as the claimant.", "101. The VA provides the PAT with a Statement of Case, which includes, inter alia, a transcript of the claimant's service records including service medical records, civilian medical records and reports including those prepared at the request of the VA and a statement outlining the Secretary of State's reasons for refusing the application. The claimant may submit an answer to the Statement of Case and/or adduce further evidence. A hearing then takes place. The PAT examination is de novo so that the appellant does not have to show that the Secretary of State's decision was wrong. A further appeal lies to the High Court on a point of law with leave from the PAT or the High Court.", "3. Disclosure of documents before the PAT", "102. Rule 6 of the PAT Rules (“the Rule 6 procedure”) is entitled “Disclosure of official documents and information” and provides as follows:", "“(1) Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President may think fit :", "...", "(2) On receipt of a direction given by the President under this rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorised by him in that behalf, may certify to the President –", "(a) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or", "(b) that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever;", "and where a certificate is given under sub-paragraph (a), the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the tribunal to consider whether the appellant's case will be prejudiced if the appeal proceeds without such disclosure, and, where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, they shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.”", "D. The Access to Health Records Act 1990 (“the 1990 Act”)", "103. Prior to 1991 all medical records (civilian or service) were only disclosed on a “medical in confidence” basis. It was a matter for the doctor to decide if it was in the patient's best interests to see his or her records. The 1990 Act came into force on 1 November 1991 and it sets down the rights of persons to access, inter alia, their service and civilian medical records. It applies only to records compiled after the date of its entry into force and to records compiled “in connection with the care of the applicant”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "104. The applicant complained that section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”) violated his right of access to a court guaranteed by Article 6 § 1 of the Convention, the relevant parts of which provide as follows:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ... ”", "A. The applicant's submissions", "105. The applicant maintained that the essential point, emphasised by the earlier jurisprudence ( see, notably, Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93 ), was the constitutional protection of the domestic courts against executive control and the assumption of arbitrary power by the State. The Commission's decisions in Ketterick v. the United Kingdom (no. 9803/82, Commission decision of 15 October 1982, unreported), Pinder v. the United Kingdom (no. 10096/82, Commission decision of 9 October 1984, unreported), and Dyer v. the United Kingdom (no. 104 75/83, Commission decision of 9 October 1984, Decisions and Reports 39, p. 246), and the Court's judgment in Fayed v. the United Kingdom ( judgment of 21 September 1994, Series A no. 294 ‑ B, pp. 49-50, § 65) accepted this core constitutional safeguard.", "Accordingly, whether section 10 of the 1947 Act could be described as a substantive limitation on his right of access to a court or a procedural one, paragraph 65 of Fayed (as cited in Fogarty, cited above ) meant that it should be subjected to a proportionality test. Lord Walker of the House of Lords had recognised in Matthews the difficulty in suggesting that the principle laid down in Fayed had been qualified by the judgment in Z and Others v. the United Kingdom ( [GC], no. 29392/95, ECHR 2001 ‑ V ) and the applicant considered that there was nothing inconsistent in the latter case with the decision in Dyer or judgment in Fayed.", "106. Alternatively, section 10 was a procedural limitation on his right of access to a court for a determination of his civil rights.", "He had a “civil right” (a cause of action recognised by national law) within the meaning of Article 6 § 1 which was extinguished by the issuance of a section 10 certificate. The concept of civil rights was, and rightly so in the applicant's view, an autonomous Convention notion not solely dependent on domestic classifications. This ensured that a State could not legislate to divest itself of its Article 6 responsibilities and implied that a “civil right ” could have a meaning or content different to domestic law. However, the House of Lords in Matthews analysed the existence of a “civil right” solely by reference to domestic law. It was true that there was an unresolved tension between, on the one hand, the principle that the expression “civil rights” had an autonomous meaning and, on the other, the principle that Article 6 applied only to disputes about civil rights which could be said at least on arguable grounds to be recognised under domestic law. The answer was to view domestic law as regulating whether a right had “some legal basis” in domestic law but not as determining whether there was, in fact, a civil right. Accordingly, the fact that the applicant had, until the issuance of the section 10 certificate, a civil cause of action recognised by domestic law was sufficient to conclude that he had a “civil right” for the purposes of Article 6 of the Convention.", "While the applicant did not contest the historical analysis of Lord Bingham in Matthews, he maintained that the actual operation of section 10 was also pertinent. He had a cause of action until the Secretary of State had, in the exercise of his discretion, issued the section 10 certificate, thereby extinguishing it. It was the existence of this discretion that distinguished his case from Z and Others and rendered it indistinguishable from Fogarty. Section 10 may not have accorded a wide discretion, but it existed and, if not exercised, the cause of action subsisted. Indeed, it took nine months after the issuance of proceedings for the certificate to be issued.", "107. Having regard to the material sent by the Porton Down Veterans to the MOD on 7 February 2005 (see paragraph 72 above) and the Government submissions thereon (paragraph 115 below), the applicant considered that the only relevant point was that, as the Government had recognised, the MOD's change of policy as regards his civil action had no impact on the issues or submissions before the Court except to undermine the Government's assertion that section 10 certificates were invariably granted.", "108. The applicant further rejected the contention, based on Pellegrin, that Article 6 did not apply. Noting that the MOD had not pursued this argument before the House of Lords, he pointed out that the principles laid down in Pellegrin were relevant only to disputes “raised by employees in the public sector over their conditions of service” as was later confirmed in Fogarty. In so far as it was suggested that R. v. Belgium laid down a rule that any dispute between a serviceman and the services fell outside the scope of Article 6, that would be both inconsistent with Pellegrin and wrong in principle. If it was to be maintained that Pellegrin had laid down such a broad rule, that judgment was incorrect.", "109. According to the applicant, the restriction on his right of access to a court was also disproportionate. The legitimate aim pursued by restricting access was identified by the High Court (operational efficiency and discipline during training). However, in 1987 Parliament had clearly considered that any such aim was no longer worth pursuing, it had little to do with someone volunteering for tests and there was no rational connection between section 10 and the aim it purported to pursue, since a section 10 certificate was so broad as to potentially cover situations having no connection with that legitimate aim.", "Even with the pension alternative, the restriction was disproportionate to any such legitimate aim. The breadth of the restriction was greater than necessary to achieve its objective. The pension scheme was manifestly inadequate and this was an exceptionally high price to pay for the advantage of not having to prove fault. The fundamental injustice of section 10 of the 1947 Act was recognised by its repeal in 1987 and, further, service personnel who now discover an injury that was sustained prior to 1987 will be treated less favourably than those with a similar injury sustained after 1987.", "B. The Government's submissions", "110. The Government relied on the judgments of the Court of Appeal and the House of Lords in Matthews, cited above. Both courts had considered in some detail the Convention case-law and decided (the House of Lords unanimously) that Article 6 was inapplicable because section 10 of the 1947 Act was a substantive element of national tort law delimiting the extent of the civil right in question.", "111. Even if difficult, the distinction between substantive and procedural provisions remained necessary. The oft-quoted paragraph 65 of the judgment in Fayed, cited above, provided no basis for ignoring this distinction and the Court of Appeal and the House of Lords convincingly explained why it should be maintained.", "Any creation of a sort of hybrid category would expand the applicability of Article 6 beyond its proper boundaries, turning it from a provision guaranteeing procedural rights to one creating substantive ones, which would, in turn, go against the well-established principle that Article 6 applied only to civil rights which could be said on arguable grounds to be recognised under domestic law. In addition, the Government considered it vital to bear in mind the rationale underlying Article 6: the protection of the rule of law and the proper separation of powers from any threat ( see Golder, cited above, and Lord Hoffmann in Matthews ). A provision entitling the executive to exercise arbitrary discretion to prevent otherwise valid claims from being decided by the courts would threaten the rule of law, whereas section 10 brought with it no such threat as it simply defined the circumstances in which a no-fault pension scheme would replace a claim in tort for damages. Moreover, it was essential to analyse accurately an individual's substantive rights in domestic law taking into account the history and legislative context of the provision and its purpose (as did Lord Bingham). The purpose of the provision could then be measured against the underlying rationale of Article 6 of the Convention.", "112. The core question was therefore the actual characterisation to be given (procedural or substantive) to the relevant limitation. The essential starting - point was an accurate analysis of domestic law and considerable respect had to be shown to the analysis of the restriction by the higher domestic courts. The Government suggested caution as regards the terminology used so that, for example, the use of the word “immunity” was not determinative of the question: indeed, domestic law recognised an immunity from liability (substantive) and immunity from suit (procedural).", "The Government further considered, for the reasons outlined in the judgments in Matthews, that section 10 was a substantive limitation. The uncontroversial starting - point was that, prior to the 1947 Act, there was no common- law right to claim damages in tort from the Crown: section 10 could not therefore have removed or taken away any pre-existing right. The 1947 Act created such a right in section 2 but did so expressly subject to section 10 which preserved the preclusion from claiming damages in cases concerning servicemen. In short, the parliamentary intention behind the 1947 Act was to maintain the pre-existing preclusion in so far as servicemen were concerned. Both sections 2 and 10 were contained in Part I of the Act entitled “Substantive Law”, a title which accurately reflected the nature of Part I which was a composite of provisions laying down the basic rules for the Crown's liability in tort. Both the prior common law and the 1947 Act were rules of general application marking the limits of tortious liability in domestic law: they were expressed in the language of rules of substantive law and the circumstances in which there was no right to claim (the section 10 exception to the section 2 right to claim) were of general application and clearly set out in the statute.", "The certification provisions, properly understood in context, did not indicate the existence of a right to claim removed by some broad discretion of the executive. There was no such right in the first place and the discretion was a narrow one: in this latter respect, the circumstances in which Parliament intended that no action could be brought were fully defined (sections 10(1)(a) and (2)(b)), the narrow discretion therein can be contrasted with the broad discretion in section 10(3) of the 1947 Act, and the discretion was uniformly and invariably exercised. The purpose of the certification provisions was not to confer a broad discretion to take away an existing cause of action but rather to ease the path of servicemen towards an alternative pension by taking away the need to prove a causal link between the injury and service. If a certificate was not issued, a cause of action continued but under section 2 of the 1947 Act. Accordingly, the certification process did not have any purpose or effect that threatened the rule of law or the separation of powers or was inimical to the rationale behind Article 6.", "For these reasons, the Government maintained that the Court of Appeal and the House of Lords correctly concluded in Matthews that section 10 was a substantive provision limiting the scope of the civil right.", "113. Alternatively, the Government submitted that Article 6 was not applicable given the “functional” principles outlined in Pellegrin (§ 66) as applied in R. v. Belgium.", "114. In the further alternative, the Government argued that, even if Article 6 applied, any interference with the applicant's access to a court was proportionate having regard, on the one hand, to the vagaries, costs and other difficulties of an uncertain fault- based action (where the task of determining whether it was just and reasonable to impose a duty of care would be especially difficult) and, on the other, to the certainty and relative efficiency of a no-fault needs-based system. The Commission (in Ketterick, Dyer and Pinder, all cited above ) concluded (as recently as 1984) that the creation of the no-fault pension entitlement was an adequate alternative to the right to sue in negligence. The fact that the State decided in 1987 that the bar on service personnel suing in tort was no longer necessary for claims thereafter did not mean that the prior restriction was inappropriate or disproportionate.", "115. Following receipt of the letter of the Porton Down Veterans of 7 February 2005 (see paragraph 72 above), the Government Agent caused urgent inquiries to be made. In submitting this correspondence to this Court, the Government pointed out that neither they nor the Secretary of State in 1995 (in issuing the section 10 certificate) were aware of these Treasury Solicitor letters until the above-noted letter of 7 February 2005. A policy decision had been taken by the MOD not to “take a section 10(1) point” as regards certain civil claims mounted by some Porton Down volunteers because at least some of the tests (including those conducted on Mr Maddison to which the Treasury Solicitor's letters related) had been conducted by or under the direction and control of civilian personnel and not solely by members of the armed forces. While it was not clear precisely which type of personnel were involved in tests on the applicant, “there appear to have been some armed forces personnel and some civilians involved” in the applicant's tests. The MOD stated that it would be prepared to treat the applicant as falling within the above-noted policy decision. The applicant could now sue for damages in tort given this decision of the MOD. He retained, in addition, the separate right to continue with his claim for a pension in the PAT since the section 10 certificate remained valid for the purpose of those proceedings. When the section 10 certificate was issued in 1995, the Minister believed section 10 to be applicable and, until the Treasury Solicitor's letters of advice were recently produced, that was the belief of the Government Agent. They concluded that it was “at least arguable” that, if the applicant had commenced a civil negligence action following his section 10 certificate (of August 1995), the action would have been barred. According to the Government, therefore, the Article 6 issues he raised before the Court remained live.", "C. The Court's assessment", "1. General principles", "116. The right of access to a court guaranteed by Article 6 in issue in the present case was established in Golder ( cited above, pp. 13 - 18, §§ 28-36). In that case, the Court found the right of access to a court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see, more recently, Z and Others, cited above, § 91).", "117. Article 6 § 1 does not, however, guarantee any particular content for those ( civil ) “ rights” in the substantive law of the Contracting States : the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned ( see Fayed, cited above, pp. 49 -50, § 65). Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law ( see James and Others v. the United Kingdom, judgment of 2 1 February 1986, Series A no. 98, and Z and Others, § 81, and the authorities cited therein, together with McElhinney v. Ireland [GC], no. 31253/96, § 23, 21 November 2001 ).", "118. The applicant maintained that there was a certain tension between this aforementioned principle, on the one hand, and, on the other, the established autonomous meaning accorded by the Court to the notion of “civil rights and obligations”. Connected to this, he questioned the distinction between a restriction which delimits the substantive content properly speaking of the relevant civil right, to which the guarantees of Article 6 § 1 do not apply ( see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, pp. 16-17, § 36, and Z and Others, cited above, § 100), and a restriction which amounts to a procedural bar preventing the bringing of potential claims to court, to which Article 6 could have some application ( see Tinnelly & Sons Ltd and Others and McElduff and Others, p. 1657, § 62; Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 48-49, ECHR 2001 ‑ XI; Fogarty, § 26; and McElhinney, § 25 ). The applicant argued that it was not necessary to maintain that distinction (relying on the Commission decisions in Ketterick, Pinder and Dyer, cited above, together with paragraph 65 (p. 49) of Fayed, as cited in Fogarty, § 25) : any restriction should be subjected to a proportionality test because the important point was to protect the courts from the assumption of arbitrary power and control on the part of the executive.", "119. The Court cannot agree with these submissions of the applicant. It does not find any inconsistency between the autonomous notion of “civil” ( see König v. Germany, judgment of 28 June 1987, Series A no. 27, p. 30, § 89, and, more recently, Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001 ‑ VII) and the requirement that domestic law recognises, at least on arguable grounds, the existence of a “right” ( see James and Others, cited above, pp. 46-47, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, § 80 ). In addition, the Commission decisions in Ketterick, Pinder and Dyer must be read in the light, inter alia, of the judgment in Z and Others (cited above) and, in particular, in the light of the Court's affirmation therein as to the necessity to maintain that procedural/substantive distinction: fine as it may be in a particular case, this distinction remains determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention. In both these respects, the Court would reiterate the fundamental principle that Article 6 does not itself guarantee any particular content of substantive law of the Contracting Parties (see, amongst other authorities, Z and Others, cited above, § 87).", "No implication to the contrary can be drawn, in the Court's view, from paragraph 6 7 of Fayed. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars ( see, for example, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002 ‑ X ) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law.", "120. In assessing therefore whether there is a civil “ right” and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting - point must be the provisions of the relevant domestic law and their interpretation by the domestic courts ( see Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327 ‑ A, p. 19, § 49). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law ( see Z and Others, cited above, § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law.", "121. Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 20-21, § 38). The Court must not be unduly influenced by, for example, the legislative techniques used ( see Fayed, pp. 50-51, § 67) or by the labels put on the relevant restriction in domestic law: as the Government noted, the oft-used word “immunity” can mean an “immunity from liability” (in principle, a substantive limitation) or an “immunity from suit” (suggestive of a procedural limitation).", "2. Application to the present case", "122. The Court has therefore taken as a starting - point the assessment of, and conclusions concerning, section 10 of the 1947 Act by the House of Lords in Matthews, cited above.", "Drawing on the historical context, the text and purpose of, in particular, sections 2 and 10 of the 1947 Act, the House of Lords concluded that section 10 was not intended to confer on servicemen any substantive right to claim damages against the Crown but rather had maintained the existing (and undisputed) absence of liability in tort of the Crown to servicemen in the circumstances covered by that section. The Lords made it clear that prior to 1947 no right of action in tort lay against the Crown on the part of anyone. The doctrine that “the King could do no wrong” meant that the Crown was under no liability in tort at common law. Section 2 of the 1947 Act granted a right of action in tort for the first time against the Crown but the section was made expressly subject to the provisions of section 10 of the Act. Section 10 (which fell within the same part of the 1947 Act as section 2 entitled “ Substantive law” – see Lord Hope in Matthews, paragraph 94 above) provided that no act or omission of a member of the armed forces of the Crown while on duty should subject either that person or the Crown to liability in tort for causing personal injury to another member of the armed forces while on duty. Section 10 did not therefore remove a class of claim from the domestic courts'jurisdiction or confer an immunity from liability which had been previously recognised: such a class of claim had never existed and was not created by the 1947 Act. Section 10 was found therefore to be a provision of substantive law which delimited the rights of servicemen as regards damages claims against the Crown and which provided instead as a matter of substantive law a no-fault pension scheme for injuries sustained in the course of service.", "123. As to whether there exist strong reasons to depart from this conclusion, the applicant mainly argued that the section 10 certificate issued by the Secretary of State operated as a procedural restriction to prevent him from pursuing a right of action which he enjoyed under the 1947 Act from the moment he suffered significant injury. The Court is unable to accept this argument. It finds that section 10 must be interpreted in its context and with the legislative intent and purpose in mind. As explained in detail in the judgments of Lord Bingham and Lord Hope in Matthews, the object of the certification procedure introduced by section 10(1)(b) was not to alter the essential thrust of section 10 as originally drafted – namely, to exclude the Crown's liability altogether – but was rather to facilitate the grant of a pension to injured service personnel by obviating the need to prove that the injury was attributable to service.", "Moreover, Lord Bingham pointed out that the “realities of the situation” were that it was “plainly intended” that the section 10 certificate would be issued where the relevant conditions had been fulfilled and he noted that that had indeed been the uniform and unvarying practice of successive Secretaries of State for forty years, to the extent that any practitioner would have advised Mr Matthews that a section 10 certificate was bound to be issued (see also Lord Walker in Matthews, paragraph 92 above ). This narrow discretion conferred by section 10(1)(b) was to be contrasted with the broader discretion for which section 10(3) of the 1947 Act provided. For the reasons set out in paragraph 126 below, this finding as to the narrow discretion of the Secretary of State is not altered by the fact that the latter has now decided not to maintain “a section 10(1) point” against the applicant.", "The Court finds this discretion conferred on the Secretary of State by section 10 to be fundamentally different in character from the unfettered discretion enjoyed by a foreign government, which was the subject of the Court's examination in Fogarty, not to waive State immunity and thereby to prevent a claim otherwise well-founded in domestic law from being entertained by a domestic court.", "The certification procedure provided for by section 10 is similarly to be distinguished from that considered by the Court in Tinnelly & Sons Ltd and Others and McElduff and Others. In that case, the Fair Employment ( Northern Ireland ) Act 1976 clearly granted a right in national law to claim damages for religious discrimination when tendering for public contracts. Section 42 of the 1976 Act was not aimed at creating an exception for cases in which Parliament (when adopting the 1976 Act) considered discrimination justified but rather allowed the Secretary of State by a conclusive certificate, based on an assertion that the impugned act was done to protect national security, to stop court proceedings that would otherwise have been justified. As observed by Lord Hoffmann, section 10 did not involve such encroachment by the executive into the judicial realm but rather concerned a decision by Parliament in 1947 that, in a case where injuries were sustained by service personnel which were attributable to service, no right of action would be created but rather a no-fault pension scheme was to be put in place, the certificate of the Secretary of State serving only to confirm that the injuries were attributable to service and thereby to facilitate access to that scheme.", "124. Accordingly, this Court finds no reason to differ from the unanimous conclusion of the Court of Appeal and the House of Lords as to the effect of section 10 in domestic law. It considers that the impugned restriction flowed from the applicable principles governing the substantive right of action in domestic law ( see Z and Others, § 100). In such circumstances, the applicant had no ( civil ) “ right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention ( see Powell and Rayner, cited above, pp. 16-17, § 36).", "It is not therefore also necessary to examine the parties'submissions as to the proportionality of that restriction. It is further unnecessary to examine the Government's argument that Article 6 was inapplicable on the basis of the above-cited judgments in Pellegrin and R. v. Belgium.", "125. The Court concludes that Article 6 of the Convention is not applicable and that there has not therefore been a violation of that provision.", "126. Finally, the Court has noted the submissions of the parties concerning the recent discovery of the Treasury Solicitor's letters of advice from 1953 concerning another test participant ( see paragraphs 72, 107 and 115 above). The fact that the Secretary of State has now decided to no longer “take a section 10(1) point” in any civil action of the applicant, does not alter or otherwise affect the above conclusion in respect of section 10 in the applicant's case. That decision merely serves to resolve in the applicant's favour a doubt which has recently emerged (not commented upon by the applicant and remaining unclarified) as to whether the applicant in fact belonged to a category of persons to which the provisions of section 10 applied. Further, it is a decision which concerns the future, the Government having confirmed that the section 10 certificate remains valid for the purposes of the ongoing PAT appeal.", "The Court has, however, returned to these submissions in the context of Article 8 of the Convention below.", "II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1", "127. The applicant further complained that section 10 of the 1947 Act had also violated his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1, the relevant part of which reads as follows:", "“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.", "... ”", "128. For the reasons outlined in the context of Article 6, the applicant maintained that he had a “possession” (a claim in negligence against the MOD) until deprived of it, in an unjustified manner, when the Secretary of State issued the section 10 certificate ( see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 21, § 31). The Government pointed out that, while Article 1 of Protocol No. 1 recognised a vested cause of action as a possession, any claim the applicant might otherwise have had in tort was always subject to section 10 of the 1947 Act and was defeasible. There had been, therefore, no interference with the applicant's rights under that provision. Indeed, Mr Matthews ( see Matthews, cited above ) did not pursue this argument before the House of Lords.", "129. The Court reiterates that a proprietary interest in the nature of a claim can only be regarded as a possession where it has a sufficient basis in national law, including settled case-law of the domestic courts confirming it ( see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX ). The applicant argued that he had a “possession” on the same grounds as he maintained that he had a “civil right” within the meaning of Article 6 § 1. For the reasons outlined under Article 6 § 1 above (see paragraphs 122- 24), the Court considers that there was no basis in domestic law for any such claim. The applicant had no “possession” within the meaning of Article 1 of Protocol No. 1 and the guarantees of that provision do not therefore apply.", "130. Accordingly, there has been no violation of Article 1 of Protocol No. 1.", "III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1", "131. The applicant further argued under Article 14 of the Convention ( taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1) that section 10 of the 1947 Act was discriminatory. Article 14 reads as follows:", "“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”", "132. He maintained, for the reasons set out above in the context of Article 6 of the Convention and Article 1 of Protocol No. 1, that the impugned facts fell within the ambit of those Convention provisions. He further argued that he had been treated less favourably than other persons in an analogous position: he referred to other employees who had suffered injury as a result of the negligence or lack of foresight of their employers or, alternatively, to other servicemen injured as a result of activities after 1987. He also considered that difference in treatment to be disproportionate on the same grounds as he maintained the interference with his right of access to a court was unjustified. The Government disagreed.", "133. In the light of its findings ( see paragraphs 124 and 129 above) that the applicant had no “civil right” or “possession” within the meaning of Article 6 § 1 and Article 1 of Protocol No. 1 so that neither Article was applicable, the Court considers that Article 14 is equally therefore inapplicable ( see, amongst many other authorities, Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, p. 585, § 22 ).", "134. There has therefore been no violation of Article 14 of the Convention.", "IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND/OR ARTICLE 1 OF PROTOCOL No. 1", "135. The applicant also complained under Article 13 of the Convention taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1 that he was left without an effective remedy for the unlawful barring of his claim or, alternatively, the unlawful deprivation of his possessions.", "136. The Government contended that there was no arguable claim of a violation of Article 1 of Protocol No. 1 or, consequently, of Article 13 of the Convention, which provides :", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "137. The Court notes that the applicant's complaints under Article 6 and Article 1 of Protocol No. 1 are clearly directed against the provisions of section 10 of the 1947 Act. In this respect, the Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's primary legislation to be challenged before a national authority on the ground that it is contrary to the Convention ( see James and Others, cited above, p. 47, § 85).", "138. Accordingly, there has been no violation of Article 13 of the Convention.", "V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "139. The applicant complained about inadequate access to information about the tests performed on him in Porton Down. He considered that his access to information to allay his fears about the tests was sufficiently linked to his private and family life to raise an issue under Article 8 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to respect for his private and family life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The applicant's submissions", "140. The applicant's primary submission was that the State failed to provide him with information about his test participation in breach of its positive obligation to respect his private and family life.", "141. Relying mainly on the Court's judgments in Gaskin v. the United Kingdom (judgment of 7 July 1989, Series A no. 160), Guerra and Others v. Italy (judgment of 19 February 1998, Reports 1998 ‑ I) and McGinley and Egan ( cited above ), he maintained that he had a right to information under Article 8 to allow him to understand and react to the risks and dangers to which he had been exposed. This was a free-standing obligation (unattached to any judicial or other process) to provide an “effective” and “accessible” means for an individual to “seek all relevant and appropriate information”. His particular need for information, and for the means of obtaining it, first arose in 1987 when he initially began to seek his records, well before and separate from any PAT appeal. In any event, attaching the positive obligation to the PAT process was absurd as it would effectively require someone (whether or not he or she was entitled to, or was interested in, a pension) : to engage in a litigious process and, in particular, to apply for a pension and/or threaten litigation under section 2 of the 1947 Act; to hope that any pension application would be unsuccessful at first instance so that he/she could appeal to the PAT; and, before the PAT, to discharge a burden of proof and demonstrate the relevance of the documents to the litigation issues before he/she could obtain an order for disclosure under Rule 6 of the PAT Rules. Rule 6 is designed for the contentious litigation process and not to assuage fear by providing information : the applicants in McGinley and Egan had not relied on the general right to information and their case was therefore distinguishable on the facts.", "142. The applicant maintained that the State did not secure his right to an effective and accessible procedure to obtain the necessary information.", "143. Prior to the 1998 Scheme (see paragraph 69 above) and his PAT appeal, he had made significant attempts, apart from any litigation, to obtain information. The first information disclosed was to his doctor on a “medical in confidence” basis so he did not see it until 1994. It was not, in any event, useful as it contained errors and gaps (it did not mention the mustard gas tests) and was unsubstantiated by underlying records. He obtained some meaningful disclosure in December 1997 and March 1998 but this too was inadequate and it came via extraordinary channels (a meeting with a Minister of State and in the context of his application to this Court ). It did not amount to “all relevant and appropriate information”: there was no mention of the 1962 tests and no information about the 1963 mustard gas test; the standards of record generation (at the time) and maintenance (thereafter) were recognised to be lacking; while it was stated that all documents had been disclosed, this was obviously not the case given later disclosure; and the letter of December 1997 contained assertions unsubstantiated by any records.", "144. The subsequent 1998 Scheme could not remedy this and was itself an inadequate means of obtaining information. The 1998 Scheme began more than ten years after he had begun to seek information and subsequent to his introduction of the present application. The reassurances in the information pamphlet were unconvincing as they were not backed up by an epidemiological study and the pamphlet promised only a summary of records and the possibility of going to Porton Down to inspect records. Indeed, the applicant considered that the 1998 Scheme confirmed the lack of adequate and effective means of obtaining information.", "145. Similarly, the subsequent Rule 6 procedure did not cure this earlier lack of information and it was, in any event, neither effective nor accessible since it was a cumbersome, unwieldy and long procedure allowing incomplete and drip- feed disclosure (the latest being in April 2005).", "The procedure could be conditioned and limited as the President of the PAT wished, Rule 6 providing that the President “may” order disclosure only if the information “is likely to be relevant to any issue to be determined on appeal”. In addition, the applicant considered the Rule 6 procedure to lack effective control: there were no time-limits on disclosure and disclosure was allowed on a piecemeal basis. There were also significant delays in the procedure. The applicant accepted that some delay was attributable to him and he explained the reasons for his delay in responding to the PAT's letter of 25 July 2001 and for applying to adjourn the October 2002 hearing. However, he argued that those delays did not, in any event, lead to the overall delay in the procedure: the MOD continued to make disclosure thereafter and the hearing adjournment was attributable also to the VA which was not ready, to the reasonable confusion as to the scope of the appeal and to the need to put further questions to Dr H. The uncontrolled certification by the MOD of records as undisclosable “departmental minutes or records” also undermined the ability of the Rule 6 procedure to fulfil the positive obligation under Article 8, as did the power to withhold documents on “national security” grounds. The whole Rule 6 procedure was, in the applicant's view, marked by errors, contradictory statements and admissions that certain documents could no longer be found with the consequence that the information at the end of the disclosure process was incomplete. Had Mr McGinley and Mr Egan used the Rule 6 procedure, the Court would have inevitably concluded in its judgment as to the inability, both in principle and in practice, of that procedure to satisfy the positive obligation to provide an accessible and effective means of obtaining information.", "146. Moreover, the applicant maintained that all “relevant and appropriate information” had not been disclosed to him. Apart from the conclusion that could be drawn from the piecemeal disclosure to date, accompanied by unsubstantiated assurances (later contradicted) that all disclosure had been made, the applicant considered that two other factors demonstrated that all relevant and appropriate documents had not been disclosed.", "In the first place, there was, in the applicant's view, an unacceptable failure to create and maintain records which rendered compliance with the Article 8 positive obligation impossible from the outset. Secondly, the Government had, until recently, refused to carry out a long-term follow-up study which was the only effective way to provide information. He considered unconvincing the reasoning and conclusion of the feasibility study report ( see paragraph 55 above), while the recently commissioned study ( see paragraph 70 above) had still not been completed and, further, begged the question as to why it was not done earlier.", "147. As to the proportionality of the State's position, the applicant noted that the Government did not plead a national security justification but rather one based on quite narrow “medical in confidence” grounds. While withholding information on “medical in confidence” grounds could serve a legitimate aim (the interests of health professionals compiling medical records and, consequently, the interests of patients), the applicant was not convinced of this in the present case since the only persons who stood to gain by the Porton Down scientists expressing themselves freely were the scientists themselves. In any event, the “medical in confidence” approach was abandoned generally (in 1991 with the entry into force of the Access to Health Records Act 1990) and specifically as regards Porton Down participants (with the introduction of the 1998 Scheme). This defence to full disclosure was clearly not proportionate having regard to the enormous importance of the information for the applicant; the paucity of the information disclosed and the piecemeal manner in which that had been done; the need for actual and original records to make a proper risk assessment; the anxiety and stress caused by the absence of such a risk assessment; the facts that the tests were in secret, that the participants were forbidden to speak of them and that there were no safeguards against abuse put in place; the toxic and hazardous material to which the participants were exposed; and the lack of an adequate follow-up study which might have generated conclusions to clarify the issue for test participants one way or the other.", "148. Relying on the detailed legal submissions made, and shortcomings highlighted, in the context of his primary Article 8 submission, the applicant advanced two alternative and secondary arguments.", "In the first place, he maintained that the procedures and systems surrounding the tests did not fulfil the procedural requirements inherent in respect for private life, so that the Government had failed adequately to secure and respect his Article 8 interests ( see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 ‑ B).", "Secondly, he argued that the Government had failed to secure his Article 8 rights in that they had failed to adequately investigate and research (or, alternatively, to put in place an adequate system to investigate and research) the potential risks to which they had chosen to expose him. Just as Articles 2 and 3 implied an investigatory requirement ( see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99 ECHR 2002-II; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V), so a similar obligation arose under Article 8 of the Convention.", "B. The Government's submissions", "149. While the Government considered that there was no evidence that the tests had had a negative impact on his health, the key answer to the applicant's complaint was, as found in McGinley and Egan, cited above, that the positive obligation under Article 8 to provide an effective and accessible procedure giving access to all relevant and appropriate information had been fulfilled by the Rule 6 procedure. This was a conclusion of principle not altered by, and indeed confirmed by, the facts of the present case.", "150. The procedure was demonstrably accessible to the applicant and he had successfully relied on and used it. It had been available to him at all relevant times since the illnesses in respect of which he claimed a pension manifested themselves in the late 1980s. He had not appealed to the PAT until November 1998 or made the Rule 6 request until July 1999. Accordingly, the period prior to July 1999 could not be relied upon to assess the accessibility (or indeed the effectiveness) of the Rule 6 procedure. In addition, should the current State epidemiological study provide evidence to support the applicant's case, he could begin his pension claim again.", "151. The Rule 6 procedure was also capable of being effective and, on the facts of the present case, was effective in producing the relevant documents for the applicant in a reasonable period of time.", "152. It was in principle effective since it allowed disclosure of documents directly corresponding to the positive obligation under Article 8. The retention of certain documents on national security or public interest grounds did not undermine its effectiveness and was compatible with the Convention, as it enabled a balance to be struck between the competing interests involved and was not without statutory safeguards (the text of Rule 6 itself). There was no systematic delay or “lack of control” over the Rule 6 procedure.", "It was also effective in the present case. Pursuant to the applicant's request, a Rule 6 order was made setting out in broad terms the simple categories of document to be disclosed. The Secretary of State approached compliance in a timely manner, thoroughly and with an evident disposition to conduct an extensive and wide - ranging search in order to disclose the maximum documents possible. A wide range of test documentation was disclosed: nothing of significance was withheld on national security grounds. The applicant made no further request under Rule 6 for disclosure to the PAT.", "153. If there was some delay attributable to the State after July 1999, it did not undermine the effectiveness of the process and there was no tangible evidence of prejudice to the applicant's case. The applicant had the “responsive documents” well in advance of the PAT hearing and was able to make use of them as he considered appropriate. The delay in furnishing the fifth category of documents (see paragraphs 53 and 55 above) was not surprising given the width of that category, the need to ensure completeness, the time that had elapsed since the tests and the “need to consider serious classification issues”. Moreover, any delay by those authorities was to be measured against the applicant's own delays: Rule 6 was only relied on in July 1999 although it had been available since the late 1980s when the applicant began to look for documents; he caused confusion, and consequently delay, as regards the breadth of the PAT appeal; and, indeed, the Government attributed to the applicant any delay after the Secretary of State's letter of 6 July 2001. Furthermore, and other than the timely disposal of the PAT proceedings, there were no time - sensitive issues as in, for example, the preventative measures in issue in Guerra and Others, cited above.", "Disclosure in stages was not unexpected (given the broad category of documents requested, their age and the numerous checks required) and it was a better option than holding all documents until all had been located. As to the suggestion that the documentation was not complete, the Government pointed out that, as in McGinley and Egan, the State could not be held responsible for any allegation concerning the failure to make or maintain records prior to the State's acceptance of the right of individual petition in 1966. As to the complaint about a refusal to carry out a follow-up study, the Government argued that there was no positive obligation to do so, that on no view could such an obligation arise without compelling evidence that there was a material problem and that, in any event, there was at the time an ongoing epidemiological study to assuage the fears of the servicemen.", "154. Finally, the Government also referred to the medical responses in 1987 and 1989, to meetings and correspondence with the Secretary of State in 1997, to the 1998 Scheme and to the ongoing epidemiological study, to conclude that the applicant had had access to all relevant information.", "C. The Court's assessment", "1. Applicability of Article 8", "155. The Government were not definitive about the applicant's participation in tests in 1962 despite the findings of the PAT. The Court considers that it is not necessary for current purposes to resolve this dispute since, in any event, it is accepted that the applicant attended the Chemical and Biological Defence Establishment at Porton Down in 1963 to participate in testing on armed forces personnel of mustard and nerve gas.", "The tests are described in paragraphs 15 and 16 above and involved the applicant's exposure to small doses of both of these agents for research purposes. In the case of mustard gas, the PAT expressly found that the aim was to test the suitability of military clothing to exposure (the PAT finding of fact – see paragraph 63 above) and it would appear from the inhalation of nerve gas, that the aim was to test the reaction of service personnel to it. Even accepting the Government's clarifications about the manner in which those tests were conducted, the Court considers that the issue of access to information, which could either have allayed the applicant's fears or enabled him to assess the danger to which he had been exposed, was sufficiently closely linked to his private life within the meaning of Article 8 as to raise an issue under that provision ( see McGinley and Egan, cited above, pp. 1362-63, § 97). It is not necessary to examine whether the case also gives rise to a separate issue under the family life aspect of this Article.", "156. It follows that Article 8 of the Convention is applicable.", "2. Compliance with Article 8", "157. The applicant considered that the State had failed to provide him with access to information in violation of his rights under Article 8. The Court observes that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck", "between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance ( see Gaskin, cited above, p. 17, § 42).", "158. In Gaskin, a file existed containing details of the applicant's childhood history that he had no opportunity of examining in its entirety. The Court found (p. 20, § 49) that the United Kingdom, in handling his requests for access to those records, was in breach of a positive obligation flowing from Article 8 of the Convention:", "“ ... persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8, taking into account the State's margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in the present case.”", "159. In the later judgment in Guerra and Others (cited above, p. 228, § 60 ), the Court ascertained whether the national authorities had taken the necessary steps to provide the applicants with information concerning risks to their health and well-being :", "“The Court reiterates that severe environmental pollution may affect individuals'well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.", "The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants'right to respect for their private and family life, in breach of Article 8 of the Convention.”", "160. Subsequently, in McGinley and Egan, cited above, the Court also examined whether the State had fulfilled a positive obligation to provide information to the applicant servicemen who had participated in armed forces atmospheric tests of nuclear weapons. It distinguished the judgment in Guerra and Others since, in that case, it was not disputed that the applicants were at risk from the neighbouring factory or that the State had in its possession information which would have enabled them to assess this risk and take steps to avert it, whereas Mr McGinley and Mr Egan had only demonstrated that one set of relevant records remained in the hands of the authorities (radiation level records). It went on (pp. 1363-64) :", "“ 100. ... the Government have asserted that there was no pressing national security reason for retaining information relating to radiation levels ... following the tests.", "101. In these circumstances, given the applicants'interest in obtaining access to the material in question and the apparent absence of any countervailing public interest in retaining it, the Court considers that a positive obligation under Article 8 arose. Where a Government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.", "102. As regards compliance with the above positive obligation, the Court recalls its findings in relation to the complaint under Article 6 § 1, that Rule 6 of the Tribunal Rules provided a procedure which would have enabled the applicants to have requested documents relating to the MOD's assertion that they had not been dangerously exposed to radiation, and that there was no evidence before it to suggest that this procedure would not have been effective in securing disclosure of the documents sought ... However, neither of the applicants chose to avail themselves of this procedure or, according to the evidence presented to the Court, to request from the competent authorities at any other time the production of the documents in question.", "For these reasons the present case is different from that of Gaskin ..., where the applicant had made an application to the High Court for discovery of the records to which he sought access.", "103. The Court considers that, in providing the above Rule 6 procedure, the State has fulfilled its positive obligation under Article 8 in relation to these applicants. It follows that there has been no violation of this provision.”", "161. The present applicant's uncertainty, as to whether or not he had been put at risk through his participation in the tests carried out at Porton Down, could reasonably be accepted to have caused him substantial anxiety and stress ( see McGinley and Egan, p. 1363, § 99). Indeed, the clear evidence is that it did. From the onset of his medical problems in 1987, he single-mindedly pursued through various means ( detailed in paragraphs 17 - 33 above) any relevant information that could inform him about his test participation and assuage his anxiety as to the consequences. While the PAT found, relying on its expert's report, that there was no reliable evidence to suggest a causal link between the tests and the applicant's claimed medical conditions, that was not until 2004 and, in any event, the High Court has since allowed his appeal and sent the matter back to the PAT, before which the matter is pending. Moreover, as is now clear, a significant number of “relevant records” of the 1963 tests were still in existence in 1966, the date of the respondent State's declarations under Article 25 and 46 of the Convention ( see McGinley and Egan, p. 1360, § 88): the documents included with the letter of 2 December 19 9 7 from the Minister of State for Defence; those documents referred to in the letter of 3 May 2001 from Porton Down; the records submitted with the Government's observations in the present case (on 9 March 1998 and 5 April 2001); and the additional documents disclosed to the PAT on 6 July 2001, 23 August 2002, 2 and 21 October 2002 and on 18 April 2005.", "On the other hand, the Government have not asserted that there was any pressing reason for withholding the above-noted information although they commented on the vagaries of locating old records that had inevitably become dispersed. Reasons of “medical confidence” were not pleaded by the Government and such reasons would, in any event, be inconsistent with the dilution of the notion in the 1990 Act and the apparent decision not to raise it in the context of the 1998 Scheme and Porton Down records. Following certain revisions of their position and declassification of documents (see paragraphs 53, 55, 57, 59 and 68 above), the Government submitted that, “nothing of significance” had been withheld on national security grounds ( see paragraph 152 above).", "162. In such circumstances, the Court considers that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicant to have access to “all relevant and appropriate information” ( see McGinley and Egan, cited above, pp. 1363-64, § 101) which would allow him to assess any risk to which he had been exposed during his participation in the tests ( see Guerra and Others, p. 228, § 60).", "163. As to compliance with this positive obligation, the Government mainly relied on the Court's conclusion in McGinley and Egan that the Rule 6 procedure before the PAT fulfilled this obligation.", "164. The Court considers that that conclusion does not apply in the present case since the essential complaints of Mr McGinley and Mr Egan and the present applicant are not comparable. The search for documents by the former was inextricably bound up with their domestic applications for pensions in respect of illnesses they maintained were caused by their participation in nuclear tests. In contrast, the present applicant had made numerous attempts to obtain the relevant records (outlined in paragraphs 17 ‑ 33 above) independently of any litigation and, in particular, of a pension application. Indeed, even when he applied for a pension in 1991, he continued to seek documents in parallel with that application since the Rule 6 procedure was not, in any event, available at first instance. If the present applicant appealed to the PAT it was because he felt constrained to do so in order to make his Rule 6 request for documents following the judgment of this Court in McGinley and Egan in June 1998.", "165. The Court's judgment in McGinley and Egan did not imply that a disclosure procedure linked to litigation could, as a matter of principle, fulfil the positive obligation of disclosure to an individual, such as the present applicant, who has consistently pursued such disclosure independently of any litigation. Consistently with judgments in Guerra and Others and Gaskin and as the applicant argued, it is an obligation of disclosure (of the nature summarised in paragraph 162 above) not requiring the individual to litigate to obtain it.", "166. The Government also relied more generally upon the disclosure that had been made through the “medical” and “political” channels and upon the other information services and health studies ( see paragraphs 17-33 and 69-71 above). However, the Court does not consider that, either individually or collectively, these could constitute the kind of structured disclosure process envisaged by Article 8. In any event, it is evident that those processes resulted in partial disclosure only given the later disclosure of relevant records, notably during the present application and the PAT appeal.", "In particular, the applicant's doctor was given information in 1987 and 1989. However, the applicant did not see it until 1994 given the “medical in confidence” basis of disclosure, the information did not refer to the mustard gas tests, it was not accompanied by the underlying records and it was, in any event, incorrect as regards certain matters (see paragraphs 19 and 36 above). Having been refused disclosure of further information, the applicant was given access for the first time to original records in 1997: this was an ad hoc procedure adopted in response to his tenacious pursuit of the information (see paragraphs 1 9 -33 above) and it constituted but the first of many instalments.", "Moreover, none of the processes described as “ information services and health studies” ( see paragraphs 69-71 above) began until almost ten years after the applicant had commenced his search for records and, further, after he had introduced his application to the Court.", "As to the 1998 Scheme, the Court notes the difficulties experienced by the authorities, even in a judicial context before the PAT, in providing records pursuant to the Rule 6 order of the President of the PAT. Even taking into account only the period following the making of the Rule 6 order by the President in February 2001, the disclosure has been piecemeal (over five occasions listed in paragraph 161 above, the most recent being in April 2005), the State reviewed its position on the classification of certain material on several occasions during that period (see paragraphs 53, 55, 57, 59 and 68 above ) and, over four years after the Rule 6 order, disclosure remains incomplete (see the letter of 18 April 2005, paragraph 68 above). Indeed, the PAT described as “disquieting” the difficulties experienced by the applicant in obtaining the records produced to the PAT. In the same vein, it is also illustrative that none of the authorities dealing with the Rule 6 procedure or the present application was aware until recently of the Treasury Solicitor's letters from 1953 (see paragraph 72 above). These demonstrated difficulties in making comprehensive and structured disclosure to date undermines, in the Court's view, any suggestion that an individual going to Porton Down to review records retained there (the 1998 Scheme) could lead to the provision of all relevant and appropriate information to that person. It is undoubtedly the case that certain records (existing after 1996) were, given their age and nature, somewhat dispersed so that the location of all relevant records was, and could still be, difficult. However, it is equally the case that the absence of any obligation to disclose and inform facilitates this dispersal of records and undermines an individual's right to obtain the relevant and appropriate disclosure.", "Finally, the Porton Down Volunteers Medical Assessment Programme involved only 111 participants and no control group whereas 3, 000 service personnel had participated in nerve gas tests and 6, 000 in mustard gas tests, with some having been involved in both types of test. The full-scale epidemiological study did not begin until 2003 and has not yet been completed.", "167. In such circumstances, the Court considers that the State has not fulfilled the positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information that would allow him to assess any risk to which he had been exposed during his participation in the tests.", "168. It is not therefore necessary to examine the applicant's additional submission that the positive obligation required the completion of a “long - term follow - up study” ( see paragraph 146 above) or the applicant's alternative and secondary arguments outlined in paragraph 148 above.", "169. In conclusion, there has been a violation of Article 8 of the Convention.", "VI. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION", "170. The applicant also complained about the inadequate provision of information under Article 10 of the Convention, the relevant parts of which read as follows:", "“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...", "2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for preventing the disclosure of information received in confidence ... ”", "171. While the applicant acknowledged that the Court had preferred to examine such questions under Article 8 to date, he maintained that as a matter of principle the right to seek access to information was an important and inherent part of the protection of Article 10 of the Convention. The Government did not agree.", "172. The Court reiterates its conclusion in Leander v. Sweden ( judgment of 26 March 1987, Series A no. 116, p. 29, § 74) and in Gaskin ( cited above, p. 21, § 52) and, more recently, confirmed in Guerra and Others ( cited above, p. 226, § 53), that the freedom to receive information “prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” and that that freedom “cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to ... disseminate information of its own motion ”. It sees no reason not to apply this established jurisprudence.", "173. There has thus been no interference with the applicant's right to receive information as protected by Article 10 of the Convention.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "174. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "175. As regards pecuniary loss, the applicant considered that the failure to disclose information and the application to him of the section 10 certificate denied him the opportunity to bring proceedings in tort against the MOD armed with the necessary evidence to establish the relevant causal link. Access to the PAT did not assist since the pension system was not an adequate substitute for a civil claim and since the PAT was constrained by the limited evidence available to it which resulted, in turn, from the State's failure to create and properly retain records, to carry out proper short and long- term monitoring of participants and to commission follow-up work and epidemiological studies. While he did not specify the level of damages sought for this loss of opportunity, he indicated that it represented his loss of earnings due to ill-health resulting from his test participation.", "As to his alleged non-pecuniary loss, he claimed to have been denied access to the relevant information for a very long time. This coupled with unsubstantiated assertions by the authorities that no harm was done by the tests only served to cause him substantial anxiety, stress and uncertainty. He made considerable efforts (medical, political and judicial) to obtain the information over almost twenty years. He did not believe that the Rule 6 procedure was the answer and, in any event, he maintained that he still had not had access to all information. The finding of a violation would not adequately compensate him and he considered that it warranted a substantial award, although he did not specify a sum.", "176. The Government observed, as regards both the pecuniary and non-pecuniary loss alleged, that the applicant had access, at all material times, to a pension scheme ( in substitution for a civil action), the PAT and the Rule 6 procedure. He had obtained information under Rule 6, his entitlement to a pension remained open and he would obtain a pension if he were to meet the threshold for an award.", "177. The Court notes that it has not found a violation of Article 6 as regards the impugned section 10 certificate. In addition, the Court's finding of a violation was based on the applicant's right per se to information about his test participation independently of any litigation. In any event, it is not possible to speculate as to the applicant's prospects of establishing a causal link between his test participation and ill-health had he been provided with an “effective and accessible procedure” giving access to “all relevant and appropriate information”.", "178. Nonetheless, the Court considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety: the tests concerned substances which, in theory, were military weapons; he had been ill with chronic respiratory problems since 1987 when he began his search for information; he made substantial and determined efforts to obtain this information through various channels (medical, political and judicial) over a long period of time; disclosure has been gradual and is apparently not complete ( see paragraphs 161 and 166 above). The Court considers that this non-pecuniary loss cannot be compensated solely by the finding of violation.", "179. Having regard to awards made in similar cases, the Court awards, on an equitable basis, 8, 000 euros (EUR), which sum is to be converted into pounds sterling at the date of settlement.", "B. Costs and expenses", "180. The applicant claimed a total sum ( inclusive of value - added tax – VAT) of 100,109.67 pounds sterling (GBP ) in legal costs and expenses for the PAT proceedings and the present application, including the anticipated costs of the hearing before this Court in October 2004.", "In particular, he claimed GBP 86,663.84 as regards the present application, including the fees of a solicitor and a trainee solicitor (almost 100 hours work) and of three counsel (including one Queen's Counsel). The legal costs and expenses of the domestic PAT proceedings amounted to GBP 13, 445.83, including the fees of a solicitor and trainee (for approximately 40 hours work) and of two counsel (one of whom had not been involved in the present application). The relevant fee notes and vouchers were submitted detailing the costs. The applicant did not claim the costs and expenses of his appeal to the High Court from the PAT since Rule 28 of the PAT Rules provided that he was entitled to his costs once leave to appeal was granted.", "181. The Government considered the claims concerning the proceedings before this Court to be excessive. They considered unnecessary the appointment of three counsel (for the present proceedings) and contended that the solicitors'fees should, in any event, have been lower. Certain items of work were vaguely described and counsels'fee rates had not been included. They challenged the necessity for the applicant's lengthy submissions before the Grand Chamber. They maintained that GBP 29,000 would be a reasonable sum in legal costs and expenses for the Convention proceedings. The Government did not comment on the costs and expenses claimed for the PAT proceedings.", "182. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred (in the case of domestic proceedings, in seeking redress for the violations of the Convention found or preventing a violation occurring ) and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Stašaitis v. Lithuania, no. 47679/99, § § 102- 03, 21 March 2002 ).", "183. On the one hand, the present application was of some complexity. It required an examination in a Chamber and in the Grand Chamber including several rounds of observations and an oral hearing. It was adjourned for a number of years pending the applicant's PAT appeal. During the adjournment, the applicant kept the Court informed of progress and thereafter continued the PAT proceedings at the same time as the present application. It is reasonable to accept as necessarily incurred the PAT costs to date (excluding the High Court appeal costs which are not claimed), despite the finding under Article 8 above, given not least that those proceedings have led to disclosure of much documentation as recently as April 2005. Further costs, both in terms of the present application and the PAT proceedings, have been incurred since the date of the oral hearing, the date to which the applicant had estimated his costs and expenses.", "184. On the other hand, the Court considers excessive the appointment of three counsel as well as a solicitor (and a trainee solicitor) to the present application and two counsel (together with a solicitor and trainee) to the PAT proceedings. It is not explained why one of the counsel working on the PAT appeal was not involved in the application to this Court: this would have led to some duplication of work. In addition, and as the Government pointed out, certain items of work in counsels'fee notes are not clearly explained and they have not noted their rates. Moreover, the estimated fees for the hearing before this Court (approximately GBP 37,000 including the travel, accommodation and legal fees of three counsel as well as of a solicitor) are unreasonably high. Furthermore, the applicant's claim under Article 6, which was a significant part of the application, was unsuccessful so that the costs and expenses allowed should be reduced ( see Z and Others, cited above, § 134).", "185. Making its assessment on an equitable basis, the Court awards the sum of EUR 47,000 in respect of the costs and expenses of the PAT proceedings and the present application (which sum is to be converted into pounds sterling at the rate applicable on the date of settlement and is inclusive of any VAT which may be chargeable) less EUR 3,228.72 in legal aid already paid by the Council of Europe.", "C. Default interest", "186. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicants are:", "1) Mr Dag Vilnes, born in 1949, who lives in Tønsberg;", "2) Mr Magn Håkon Muledal, born in 1953, who lives in Førde;", "3) Mr Anders Lindahl, born in 1942, who lives in Avaldsnes;", "4) Mr Sigurdur P. Hafsteinsson, born in 1953, who lives in Jersey ( United Kingdom );", "5) Mr Knut Arvid Nygård, born in 1961, who lives in Tananger;", "6) Mr Bjørn Anders Nesdal born in 1958, who lives in Kristiansand;", "7) Mr Per Arne Jakobsen, born in 1954, who lives in Larvik.", "The third applicant is a Swedish national, the fourth applicant is an Icelandic national and the other five applicants are Norwegian nationals.", "A. General background", "9. After the adoption of the 1958 Convention on the Continental Shelf, the Norwegian Government proclaimed in a Royal Decree of 31 May 1963 Norwegian sovereignty over the sea floor and the ground beneath it outside Norway. This was followed up by the 1963 Act on the Exploration and Exploitation of Sub-Sea Natural Resources – the Continental Shelf Act 1963 ( kontinentalsokkelloven ). Drilling in the North Sea area started in June 1966. In this connection diving operations were carried out in part in sheltered waters from barges and smaller boats, for example in relation to the construction and equipment of drilling platforms, and in part in the open sea. During the first years the depths involved were not particularly great. In the Ekofisk oilfield the sea was approximately seventy metres deep, and in the Statfjord oilfield it was approximately 150 metres. To begin with, diving took place from oil rigs, supply ships, drilling ships or pipe-laying ships. From the mid-1970s specially built diving support vessels, operational regardless of weather conditions, were used, and after a while became the usual means.", "For dives down to fifty metres air gas was used, and decompression took place either in the water or at the surface.", "10. For professional North Sea diving, deep and relatively short diving jobs (rarely more than one hour) were described as bounce diving. This was normally performed with a diving bell and a surface decompression chamber. Two divers would access the diving bell at the surface under regular atmospheric pressure. The diving bell would be lowered into the water and down to the work location on the seabed. When the diving bell was in position at the work location and the necessary tools had been lowered, the diving bell would be put under the same pressure as the work location, normally within minutes. The diver could then leave the diving bell and do the job.", "11. Both the diving bell and the diver would be supplied with gas from tanks attached to the diving bell (normally heliox). One of the divers would perform the job while the other would serve as a combined “tender” and stand by the diver in case something went wrong. When the job had been completed the diver would return to the diving bell. Then the diving bell would be lifted to the surface and connected to a decompression chamber, where the divers would complete their decompression. Heliox would normally be replaced by air when the diving bell pressure was similar to the water pressure, at fifty metres. Generally, bounce diving was perceived as stressful, because divers had little time to do the job on the seabed and felt thermal unease (first the increased temperature when the diving bell was put under pressure, and then hypothermia when entering the water, which was five to seven degrees Celsius).", "12. North Sea dives of longer duration were performed as saturation diving. The divers entered chambers at the surface (on the rig or on the diving support vessel) and were put under pressure similar to that which existed on the seabed at the work location. Then the chambers were connected to a diving bell. Two divers would leave the chamber in order to enter the diving bell, which would be lowered to the work location. The divers and the diving bell would be supplied by gas from the surface. The divers would normally wear warm water suits supplied with warm water from the surface. It normally took several hours from the time the diving bell left the chamber at the surface until it was reconnected. Subsequently, the divers were locked back into the chamber. This way of diving ensured continuous work on the seabed, while the divers could rest, sleep and eat in the chamber. After a period of work of several days or weeks, the divers were decompressed.", "13. Until 1 April 1978 the Norwegian Labour Inspection Authority ( Arbeidstilsynet ), an agency ranging under the Ministry of Municipal Affairs and Labour ( Kommunal- og Arbeidsdepartementet ), was the public authority empowered and entrusted with the task of administrative supervision of diving operations and the granting of authorisation for such operations. Thereafter these functions were vested in the Petroleum Directorate ( Oljedirektoratet ), an agency under the Ministry of Oil and Energy ( Olje- og energidepartementet ).", "14. The applicants were among the 350 to 400 persons who were permanently linked to Norway and who took part in diving related to the petroleum industry during the pioneer period (commonly defined as 1965 to 1990 ). After a while it became known that many of them had contracted health problems. Long- term studies carried out at the University of Bergen, the Norwegian Underwater Technology Centre ( Norsk Undervannsteknologisk SenterAS, hereinafter referred to as “NUTEC ” ) and Haukeland Hospital, both located in Bergen, showed possible connections between diving and damage to the central nervous system. Once it emerged that the compensation arrangements available covered the North Sea divers ’ situation only to a limited degree, the Ministry of Municipal Affairs appointed a commission ( Krombergutvalget ) which on 2 November 1993 submitted a report with recommendations. It was left to another commission ( Habberstadutvalget ) to follow up and coordinate their implementation.", "15. On 27 November 2000 the Ministry of Social Affairs and Health proposed in a note to Parliament that divers who had experienced permanent damage to their health should be awarded an amount of up to 200,000 Norwegian kroner (NOK ) ( approximately 26,000 euros (EUR), in a lump sum as compensation, whilst emphasising that the State could not be regarded as having acted unlawfully or in a manner open to criticism, bearing in mind what was known at the time when the diving took place. On 13 June 2000 Parliament requested the Government to set up an independent commission of inquiry to assess all matters related to diving in connection with oil activities in the North Sea during the pioneer period. The Commission of Inquiry, which the Government had appointed on 2 March 2001, was led by High Court Justice Mr P.A. Lossius. On 31 December 2002 it presented its report, entitled ` The Pioneer Divers in the North Sea ( Pionerdykkerne i Nordsjøen ), Norges Offentlige Utredninger (“ NOU ” Official Norwegian Report) 2003 :5 ’. The Commission considered that the State had strict legal liability, and should therefore bear the financial responsibility for compensation for injuries sustained by divers as a result of diving in the North Sea and for disorders that they might develop. It recommended the establishment of a State - funded compensation scheme to cover their financial losses, and that licensees and operators should be invited to participate in funding the scheme. An English summary of the report included, inter alia, the following observations:", "“ 7.4 Assessments and conclusions after the survey", "Although the Commission of Inquiry could have hoped for a better basis for their assessments of the pioneer divers ’ state of health, it considers that the data obtained permit a qualitatively useful description of the situation. What is most striking is the wide variation: many subjects have managed well, indeed some very well, while a not insignificant share are struggling with serious medical problems.", "However, a large number, about three out of four, have experienced diving accidents or diving disorders. More than half have suffered decompression sickness, many of them a number of times. The fact that one in five divers has lost consciousness during dives is very serious. This can trigger post-traumatic stress syndrome in genetically predisposed individuals.", "A disturbingly large number of divers are on disability pension. The fact that relatively young people, aged around 40, are affected is especially significant. This, together with the relatively large number with mental disorders, suggests that many divers have had to deal with heavier stress than most people encounter in the ordinary world of work.", "In common with findings on the British side, the number of suicides among divers on the Norwegian shelf is disturbingly high. As in the case of other suicides, it is difficult to comment on causes. However, it is not inconceivable that the long-lasting and heavy pressure that divers had to endure may have been a significant factor in the process.", "When assessing the state of health of North Sea divers it is important to remember that many of them started out as a specially selected and well-trained group of young men. After an average of about 14 years in the North Sea, the majority are in a satisfactory state of health based on the information they have supplied. However, a relatively high proportion have acquired appreciable health problems, illustrated by the fact that almost one-fifth are disabled, and that a number of divers complain of concentration, memory and hearing impairments. The same symptoms are documented in Norwegian and foreign investigations alike. It seems probable that the extreme stress to which many North Sea divers have been exposed at work has been a significant factor behind the disorders that a number of them have developed. “", "16. The Commission ’ s report was sent for comment to the various institutions and organisations concerned. The legislation department of the Ministry of Justice expressed the view that the State did not have a sufficient connection to the oil activity for it to be liable on the ground of strict liability, and that employers ’ liability for the State was difficult to envisage, a matter to be considered by the Ministry of Employment and Administration. After the latter had stated its views, the Government affirmed in a note to Parliament that the pioneer divers who had done ground - breaking work in the North Sea from 1965 to 1990 should receive the compensation for non-pecuniary and pecuniary damage they deserved. Although the State was not liable from a legal point of view, the Government considered that it had a particular moral and political duty vis ‑ à-vis the divers. It proposed that a special compensation scheme be put in place, to be administered by a board.", "17. After parliamentary approval, the Government, by a Royal Decree of 4 June 2004, set up a board empowered to deal with compensation claims from divers under a State-budget financed scheme (hereinafter referred to as “the Special Compensation Board ”). The payments were to be adjusted in accordance with the person ’ s degree of disability according to the assessment made by the social security authorities in their decision on disability compensation, and to be linked to the latter ’ s base amount ( grunnbeløp, “G”), with 40G or approximately NOK 2,300,000 ( approximately EUR 303, 0 0 0) being the maximum. In addition, divers were granted NOK 200,000 ( approximately EUR 2 6 ,000) in compensation for non-pecuniary damage.", "Pending disbursements under the above scheme, by a Royal Decree of 27 June 2003 it was decided to take emergency measures to compensate divers who were in financial difficulty. Following an individual assessment, they could thus be granted amounts of up to NOK 200,000 (deductible from any award made under the scheme mentioned above). This ceiling was later raised to NOK 300,000 (approximately EUR 38,000).", "18. In addition to the above, there existed two further compensation schemes. One, adopted by Parliament on 13 June 2000 (when it requested the Government to appoint the Commission of Inquiry) and in effect since 1 July 2000, consisted of lump - sum payments in amounts of up to NOK 200,000 to divers who were receiving a disability pension and who had a degree of disability of 50% or more.", "19. Another had been set up by Statoil on 1 November 2001, under which divers could apply for compensation regardless of whether they had been employed by the company. Under the latter, amounts of up to NOK 750,000 ( approximately EUR 9 9 ,000) could be granted.", "B. The factual circumstances underlying the applicants ’ complaints", "20. The applicants submitted that they were disabled and had lost their capacity to work as a result of North Sea diving. Each of them received a disability pension and ex gratia compensation from the State, and some had received compensation from other sources, notably from Statoil.", "1. The applicants ’ submissions as to their individual experiences", "(a) Mr Vilnes", "21. From the age of sixteen Mr Vilnes worked as a seaman for periods, pursued studies in mechanics and underwent secondary education and served as a marine soldier in the army until 1974. During the latter period he worked as a diver. From 20 May to 9 September 1975 Mr Vilnes was employed by the diving company ThreeX Diving Ltd ., where he first worked as a diver and then as a diving team leader. Thereafter, he pursued further education in Switzerland. For a period, he took on diving jobs in parallel to studying.", "(i) Incidents at the Arctic Surveyor", "22. From early 1976 until 27 June 1978 Mr Vilnes was employed by Deep Sea Diving and was assigned to carry out work for the diving company Scan Dive AS. He worked offshore, on board the diving vessel Arctic Surveyor (“the Arctic Surveyor ”) at the Ekofisk oilfield in the North Sea. The diving was carried out at an approximate depth of seventy ‑ five metres. The work consisted amongst other things of installing and repairing transport structures through the Ekofisk oilfield to Teesside in England and Emden in Germany.", "23. Mr Vilnes submitted that during this period he had been exposed to several incidents in diving operations endangering his life and health. For instance, in 1977 he had been exposed to serious spinal decompression sickness owing to an excessively rapid decompression. This had most probably been the cause of his permanent brain and spinal injuries.", "24. Mr Vilnes had further experienced that the umbilical supplying him with breathing gas and several other necessities had been pinned under a cement block weighing several tons that had been lowered from the sea surface. He had also experienced being pulled by the umbilical as the vessel drifted. He was not injured but, he pointed out, that drifting had been particularly dangerous because of the presence of a number of installations and devices on the sea floor, in which he could have been caught up or which could have led to the umbilical being torn off, with probably fatal results.", "25. Mr Vilnes had also experienced the gas being cut off at a depth of seventy metres. In a diving operation in 1976 the Arctic Surveyor had been damaged in a hurricane while he and other divers were undergoing saturation. It was impossible for Mr Vilnes and the other divers to leave the vessel, and they had had to remain in the saturation chamber while the ship was taken to shore for repairs and was then brought back to sea in stormy weather so that work could continue.", "26. While assigned to the Arctic Surveyor, Mr Vilnes performed bounce diving and saturation diving. He spent a total of 200 days doing saturation diving, which lasted nineteen days and nights on average, the longest period being twenty-six days and nights (see paragraph 77 below).", "27. On 27 June 1978, after a conflict with his superior, Mr Vilnes was dismissed from his job with Scan Dive AS.", "28. From March 1979 to October 1981 Mr Vilnes worked with a Danish company, Tage Nielsen & Co. K/S, on a project aimed at developing a special foam for use in rescue operations. He also worked on a number of other projects up to 1983.", "(ii) Incidents at the Tender Comet", "29. In 1983 Mr Vilnes was employed by the diving company Wharton Williams Taylor (2W), which had been hired by the then Mobil Oil to carry out diving operations, inter alia in connection with repairs to a buoy at the Statfjord oilfield on the Norwegian Continental Shelf. The diving operations were carried out from the diving vessel Tender Comet (“the Tender Comet ”) as deep as 180 metres.", "30. From 10 to 29 June 1983 Mr Vilnes had taken part in a saturation dive which had been planned to last for approximately two weeks. The dive had been shorter than planned, as Mr Vilnes had experienced a very serious breach of the safety requirements pertaining to divers, and had chosen to discontinue the dive. He had amongst other things suffered from earache and severe pain during decompression. He submitted that the diving from the Tender Comet had been conducted with tables, routines and equipment which were dangerous and harmful to him. It had caused him to suffer Post Traumatic Stress Syndrome (“PTSD”) and buzzing in the ears.", "31. A few days before Mr Vilnes boarded the Tender Comet, the Petroleum Directorate had carried out an inspection on board the vessel, formally as an observer of the diving company ’ s internal quality control. The medical logbook had indicated that a number of incidents of sores and infections had occurred, that seven people had had earache or infection in their ears (one of which could have been due to the overuse of tablets), that one person had had eye problems, that two people had become ill in the diving bell and had had to stop the dive, and that there had been four instances of decompression sickness involving two people.", "32. According to Mr Vilnes, the humidity inside the decompression chamber had been consistently at 90 - 100%; communication between the diving bell and the diving vessel had been deficient, so that it was impossible for divers to make contact when communication took place between a diver and the diving bell. He had thus risked not being heard in the event of a crisis, at a depth of 180 metres. The diving bell also had shortcomings. For example the spring lifting the door at the bottom of the bell was broken, so that divers had to use their own strength to lift the door.", "33. The decompression was not stopped during the night while divers were asleep, thereby increasing the risk of bubbles accumulating in the absence of any movement in their joints. This had led to unnecessary and considerable pain. In addition, Mr Vilnes had suffered earache during the dive, making decompression even more painful.", "34. The Norwegian authorities had approved the diving operation and had granted a dispensation with regard to the maximum length of the umbilical and the saturation time.", "35. Mr Vilnes complained to the Petroleum Directorate and lodged complaints against the diving company with the police on 17 October 1983. In response, the Petroleum Directorate carried out an inspection on board the Tender Comet, which revealed several shortcomings regarding divers ’ safety.", "36. Several Tender Comet divers were also interviewed by police. In February 1984 the police communicated the matter to the Petroleum Directorate, which in May 1984 asked the police to carry out further interviews. After doing so, the police again communicated the case to the Petroleum Directorate for comment; on 26 March 1985 the Directorate made a statement to the police. In May 1985 the police recommended to the State Prosecutor that the case be dropped as time-barred. On 18 September 1985 the police telephoned Mr Vilnes and informed him that the case was time-barred.", "37. Mr Vilnes complained to the State Prosecutor of Rogaland and to the Petroleum Directorate about their handling of his police complaint of 1983, which as a result of having been sent back and forth between them had become time-barred. This led to an internal inquiry in the Directorate and an inquiry report, and subsequent criticism of the report expressed by an officer of the Directorate.", "(iii) Subsequent events", "38. After the above-mentioned dive at Tender Comet Mr Vilnes ended his career as a diver. From 1984 - 86 he was employed at the State Diving School and then decided to terminate his employment after a disagreement with the management. From 1988 until 1 June 1989 Mr Vilnes was employed at Borregaard Engineering AS. From 1990 onwards he was employed by his own limited liability company and did various jobs. Mr Vilnes has not worked since 2000.", "39. Mr Vilnes was one of several divers who were examined by Haukeland University Hospital in August 2002. According to a specialist statement of 20 February 2004 given by the department of occupational medicine, Mr Vilnes suffered from a pathological condition potentially related to a “lazy” left leg after spinal bends in 1977. His medical invalidity resulting from slight encephalopathy was assessed at 20%. Buzzing in the ear and reduced hearing had produced a 5% reduction. His other neurological symptoms were so unspecific that they could not be verified. Possible PTSD had to be the subject of another assessment.", "40. According to a psychiatrist ’ s statement of 10 June 2004 Mr Vilnes was clearly suffering physically and psychologically from work-related injuries. He had a delayed development of PTSD which was becoming more and more apparent and present. His condition was chronic and was difficult to treat in any other way than Mr Vilnes ’ adapting himself to his own reduced capacities. Since his condition was unstable it was difficult for him to plan and he could not therefore take on an ordinary job in which he had to fulfil conditions and meet expectations. He needed flexibility. He needed to use his remaining capacities for himself in order to manage the exigencies of daily life. His psychological incapacity was assessed at 34%.", "41. On 16 August 2005 the Social Security Office granted Mr Vilnes work -related injury benefits, taking the view that his injury dated back to 1 January 1985. On an appeal by Mr Vilnes, the Social Security Court ( trygderetten ) maintained the latter date by a judgment of 7 July 2006. It held that his medical invalidity amounted to 40%, covering a low degree of encephalopathy, reduced hearing, buzzing in the ear and PTSD.", "42. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Vilnes received various sums totalling NOK 3,6 13, 657 ( approximately EUR 47 6 ,000 ) in compensation (including NOK 300,000 in Immediate Aid from Rogaland County Social Security Office, NOK 750,000 in support from Statoil, NOK 2, 4 51,120 from the Special Compensation Board ( which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage ), and NOK 112,537 in compensation for permanent injury).", "(b) Mr Muledal", "43. Mr Muledal worked as a North Sea diver from 1978-89. He performed saturation dives for periods totalling approximately 500 days and also performed approximately 200 bounce dives. In a medical assessment by Haukeland University Hospital dated 28 June 2005, it was stated that on two or three occasions he had suffered from bends in the joints. He had also suffered several diving accidents and had had near accidents. On a number of occasions, he had been exposed to a gas-cut while diving. He had recovered several dead bodies in the sea following the accident on the Alexander Kielland drilling rig ( which capsized during operations in the Ekofisk field in March 1980, killing 123 people ).", "44. Mr Muledal participated in a test dive known as “ OTS III ” at a depth of 360 metres which lasted twenty-eight days (see paragraph 109 below). He lost seven kilos because he could not eat properly during the dive and has suffered from stomach problems since. He also suffered from High Pressure Neurological Syndrome ( HPNS ).", "45. As a consequence of contracting chronic obstructive lung disease, he lost his diving licence in 1987. For that reason, his former employer, Aker Comex, terminated his employment in 1989. The said disease constituted a 15% disability. He may also have PTSD. He sustained damage to his hearing which may increase his degree of disability. In addition, he is suffering from encephalopathy, which represents a 20% disability.", "46. From 1990 he received a 50% disability pension with occupational injury benefits and, from November 2008, a 100% disability pension.", "47. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Muledal received in total NOK 3,646,635 ( approximately EUR 480,000 ) in compensation (including NOK 150,000 in Immediate Aid from Rogaland County Social Security Office; NOK 375,000 in support from Statoil; NOK 200,000 in ex gratia compensation from Parliament; NOK 2,057,230 plus another NOK 364,405 from the Special Compensation Board; and NOK 500,000 for loss of licence).", "(c) Mr Lindahl", "48. Mr Lindahl served as a North Sea diver from 1970-1993. He stated that thereafter he worked as an inshore construction diver on a significantly lower salary in a job that was easier to handle, despite his health problems. Because of chronic obstructive lung disease, he lost his medical certificate for diving in 2002. In a medical report on him by Haukeland University Hospital dated 26 February 2003 and an undated psychologist ’ s report, it was noted that he had suffered from decompression sickness twenty times, with skin bends, mostly in the early phase of his career, and that these incidents had not been treated in a decompression chamber. It was further noted that he had been treated a number of times for decompression sickness involving skin bends and joint bends, and once, in 1981, for vestibular decompression sickness after diving at depths ranging between 120 and 150 metres on a North Sea saturation dive. As a result of the latter his hearing became impaired.", "49. During his first saturation dive in 1974, Mr Lindahl and several colleagues experienced sudden decompression and error in gas supply due to power failure, leading to unconsciousness among the divers. Mr Lindahl also suffered from generalised convulsions. He submitted that incompetence and routine failings had caused the incident. Mr Lindahl had recovered bodies of people who had died in accidents. He had also experienced uncontrolled decompressions and near-accidents in which heavy objects had almost hit him while diving.", "50. Mr Lindahl participated in the Deep Ex I test dives to 300 metres and Deep Ex II to 504 metres. During Deep Ex I, he experienced decompression sickness, and Doppler tests revealed gas bubbles in the artery.", "51. According to a specialist medical statement dated 11 May 2008, diving in the North Sea caused him injury, including reduced lung capacity, producing a medical disability of 20%. Furthermore, he was 30% disabled by PTSD. Since 200 3 he has received a 100% disability pension with occupational injury benefits, the occupational injury being assessed to have been originally sustained in 1985.", "52. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Lindahl received various sums totalling NOK 3,066,739 ( approximately EUR 403,000 ) in compensation (including NOK 200,000 in Immediate Aid from Rogaland County Social Security Office; NOK 315,619 in support from Statoil; NOK 2,351,120 from the Special Compensation Board, which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage ).", "(d) Mr Sigurdur P. Hafsteinsson", "53. Mr Sigurdur P. Hafsteinsson was employed as a North Sea diver from 1978-90. After his medical certificate for diving was withdrawn in 1990, he worked as a dive supervisor and did other similar jobs. From 2001 his health gradually worsened, and from 2003 he was found to have 100% occupational disability.", "54. According to a medical statement by Haukeland University Hospital of 2 May 2003, he had participated in two deep dives at 350 and 400 metres and had spent more than 300 days in saturation. He had suffered bends on three occasions ( in his right knee ). On several occasions he had witnessed fatal accidents and experienced near accidents.", "55. For instance, he related an incident in 1982 when, while on a saturation dive at a depth of 150 metres, he and three fellow divers had just returned to the chamber when an unskilled worker was about to loosen a clamp that connected the diving bell to the diving chamber. Fortunately, the supervisor had heard the noise and managed to intervene just in time. Had this operation not been stopped, the divers would have been subjected to an explosive decompression. A similar error had led to the death of five people and seriously injured a sixth person in a diving bell on the Byford Dolphin rig in 1983.", "56. On one occasion, in 1984, Mr Sigurdur Hafsteinsson ’ s umbilical and the diving bell wire had been trapped in drilling wires and had been damaged. On another occasion, when working at a depth of seventy metres, there had been a powerful explosion which had caused sudden pain to his head and ears and possibly unconsciousness. He had been bleeding from the ears. Following this accident, he had suffered from impaired hearing. He had taken part in recovering bodies from the Alexander Kielland accident (see paragraph 43 above).", "57. According to Mr Sigurdur Hafsteinsson, in 1983 and 1985, he had participated in test diving at NUTEC. In the first test dive, called Statpipe, divers had been taken down to 350 metres. In the second test dive, called Troll (the name of the rig), divers had been taken down to 450 metres. At 450 metres, he could hardly breathe and panicked. One of his colleagues had collapsed and had to be revived. In 1990, his diving licence was revoked. The medical expert declaration from Haukeland Hospital concluded that diving had caused him to suffer from an obstructive lung disease constituting a 25% medical disability. A medical expert in psychiatry had concluded that he suffered from PTSD representing a 35% disability and that he was 100% disabled.", "58. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Sigurdur Hafsteinsson received various sums, totalling NOK 5,901,120 ( approximately EUR 776,000 ) in compensation (NOK 2,551,120 from the Special Compensation Board, which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage; NOK 2,750,000 from Chartis Insurance; and NOK 600,000 for loss of licence).", "(e) Mr Nygård", "59. Mr Nygård worked as a North Sea diver from 1987-94. He carried out more than 200 air dives and saturation dives totalling approximately 200 days. He experienced numerous accidents and near-accidents as a North Sea diver. For instance, in 1988 he was almost hit by a crane ball (the massive hook on the vessel ’ s main lifting crane, weighing between 100 and 300 kilos) while working at a depth of 150 metres, and just barely escaped death. His supervisor had apparently removed his headset and had not heard Mr Nygård ’ s message of “all stop” and therefore had not told the crane operator to stop the crane.", "60. In 1990, while working at thirty metres in saturation, an oxy-arc (cutting tool) had exploded in his hand, hitting him hard in the chest, because a riser (a pipe conducting oil and gas between the sea bed and the oil rig) which Mr Nygård was burning had not been emptied of water, although the supervisor had confirmed several times that there was no water pressure in it. Consequently, the water pressure had blown the flame, sparks and oxygenic gas back at the oxy-arc that Mr Nygård was holding, which had thus exploded in his hands.", "61. Mr Nygård further stated that in 1995 his medical certificate for diving had been revoked, as a result of his being diagnosed with chronic obstructive lung disease. For most of 1995 he had been on sick leave, and between 1995 and 2000 he had received retraining benefits as part of his re ‑ adaptation funded by social security after he had quit diving. He obtained a degree in economics, and worked for a couple of years until he became incapacitated by his health problems.", "62. According to a medical expert opinion dated 24 October 2005, mainly due to diving in the North Sea, Mr Nygård suffered from several medical disabilities, of which chronic obstructive lung disease amounted to 15%, PTSD to 34% medical disability, diver hands to 10 %, and encephalopathy to 14 %. With effect from 1 October 2003 he was granted a 100% disability pension with occupational injury benefits. He submitted to the Court that his encephalopathy and chronic obstructive lung disease probably resulted from the use of rapid (dive) tables.", "63. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Nygård received various sums totalling NOK 6,773,935 ( approximately EUR 891,000 ) in compensation ( including NOK 3,651,560 and NOK 1,130,968, respectively for past and future loss of income from Vesta Insurance under the Workers ’ Compensation Act; NOK 1,254,196 from the Special Compensation Board, which amount included NOK 200,000 in ex-gratia compensation for non-pecuniary damage, and after deduction of the amount granted for future loss by Vesta Insurance; plus a further NOK 242,796 from the board, NOK 57,999 plus NOK 136,416 in compensation for permanent injury, and NOK 300,000 for loss of licence).", "(f) Mr Nesdal", "64. Mr Nesdal worked as a North Sea diver from 1982 to 1994. In parallel he also worked as an assistant diving attendant. In 1988 and 19 89 he experienced dizziness on several occasions while diving and when off work. His health gradually deteriorated and in 1994 he quit diving. He later qualified to work as a sheet metal worker, which enabled him to pursue gainful employment until 2001, when he was granted a disability pension.", "65. According to a medical statement by Haukeland University Hospital of 27 January 2005, he had experienced bends in his left elbow and had on two occasions suffered from decompression sickness assessed as bends in his lymph. On all three occasions the symptoms had disappeared following treatment in a compression chamber. He had later suspected that the bends in his lymph could have related to something else.", "66. He experienced neurological symptoms on a saturated dive in 1985 and dizziness and nausea in several subsequent dives. On a number of occasions he had been exposed to life-threatening incidents while diving in the North Sea. Once he had been stuck in a shaft while hearing on the inter-communication system that divers should immediately revert to the diving bell because the diving vessel was drifting away. Mr Nesdal had observed the diving bell moving and had at the last minute managed to get released from the shaft and returned to the bell.", "67. Another near accident had happened when he participated in the testing of a ROV (Remote Operated Vehicle, an unmanned submarine operated from the surface), weighing several tons. His umbilical had got hooked on to the ROV which had drifted away, stretching it almost to the point of bursting. Mr Nesdal had also witnessed two divers getting caught in the propeller behind the vessel, one of whom had died. Because of the great variations in the level of competence of surface crew, he had sometimes felt unsafe when receiving assistance from its members.", "68. According to a medical statement from Haukeland University Hospital, dated 25 February 2005, no organic causes had been found for his episodes of dizziness. which most probably related to his depression and anxiety. a condition caused by diving and which represented a medical disability degree of 15 -2 0%. The social security authorities first regarded him as having 60% incapacity for work, then in 2004 he was granted a 70% disability pension. His disability was found to date back to 1994.", "69. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Nesdal received various sums totalling NOK 2,945,786 ( approximately EUR 388,000 ) in compensation ( including NOK 1 6 0,000 in Immediate Aid from Rogaland County Social Security Office; NOK 410,651 in support from Statoil; NOK 200,000 in ex gratia compensation from Parliament; and NOK 2174,786 from the Special Compensation Board ).", "(g) Mr Jakobsen", "70. Mr Jakobsen worked as a North Sea diver from 1975-8 3. At the end of this period he also worked as a diving supervisor and diving superintendent, as he also did from time to time thereafter until he definitively left the diving industry in 1992. He then briefly served as project manager in a subsea project and in the following years he tried to make a career in business. Because of reduced working capacity and health problems he ceased working in 2004 and was granted a 100% disability pension in 2005. Norwegian social security set the date of the occupational injury at 1980.", "71. According to a medical statement by the Haukeland University Hospital, dated 21 December 2005, he had experienced bends on fifteen to twenty occasions ( once in his skin, on other occasions in his joints – the right shoulder and elbow).", "72. He submitted to the Court that he had been exposed to a life ‑ threatening situation in 1979 when using surface-supplied breathing gas in a dive in the North Sea. He had been diving alone inside a rig construction on the seabed, checking the welding, when he suddenly heard a crack. The hawser attaching the vessel to the rig had torn apart and the vessel had pulled backwards, dragging him along by the umbilical. He risked being caught in the propeller and losing air from the umbilical. Fortunately he managed to locate the diving basket on the seabed and climb into it and receive decompression treatment there. During that same period a colleague of his had been crushed to death by a container during a crew change.", "73. On several occasions he had experienced a loss of seal on the diving bell, causing it to lose pressure and mist over. Losing the seal on the diving bell during a dive was always life - threatening. Gas was streaming out of the bell. Reacting quickly and going down to deeper waters inside the bell, with the surface crew lowering the bell back to working depth to maintain pressure was the only way to survive. The divers ’ lives had depended entirely on their knowledge of how to address the problem and on the skills of diving management at the surface. During a saturated dive in 1978, Mr Jakobsen had experienced the diving bell wire being torn apart and the bell falling to the sea bed. He had been in the chamber while his fellow workers had been under the bell. They had received a new wire and had been rescued.", "74. In 1980 Mr Jakobsen had participated with a colleague in the recovery and identification of the deceased after the above-mentioned accident at the Alexander Kielland drilling rig. They had spent sixteen days in saturation under the platform, an extremely dangerous operation, and had recovered many corpses. After that incident his colleague had quit diving altogether, whereas Mr Jakobsen had continued.", "75. An expert in psychiatry had concluded on 3 June 2005 that he found it probable that Mr Jakobsen had experienced numerous critical situations and suffered from traumatic stress caused by dangerous and sometimes life ‑ threatening incidents. He suffered from PTSD mainly caused by stress connected to North Sea diving. On account of psychological injury his medical disability was assessed at 35% and he was 100% disabled. The findings as to his medical disability were confirmed by a medical expert statement from the Haukeland University Hospital dated 21 December 2005.", "76. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Jakobsen received various sums totalling NOK 2,627,960 ( approximately EUR 346,000 ) in compensation ( including NOK 30 0,000 in Immediate Aid from Rogaland County Social Security Office; NOK 200,000 in ex gratia compensation from Parliament; and NOK 2,024,465 plus another NOK 303,495 from the Special Compensation Board ).", "2. General risk factors complained of", "(a) Dispensations from safety regulations", "77. Pursuant to the 1978 safety regulation, the saturation period for saturation diving should not exceed sixteen days. However, the Petroleum Directorate could authorise an extension of the period to twenty-four days and exceptionally to thirty-two days, provided this had been agreed between the diving companies and the divers ’ representatives. Such dispensation arrangements had to be seen against the background that certain operations took more than sixteen days, and that avoiding sending in a second team permitted a reduction in certain risks involved in subjecting a new diving team to pressure in order to complete the work ( NOU 2003: 5, p. 80).", "78. The safety regulation further provided that diving from a diving bell was not permitted if the divers ’ umbilical was longer than twenty-nine metres and that the umbilical of the diver remaining in the bell should not exceed thirty-one metres. Dispensations were sought for safety reasons, notably in order to reduce the risk of the diving vessel and the diving bell getting too close to the oil platform.", "79. In both respects, the Directorate practised a liberal policy in granting dispensations. The Lossius Commission observed that the granting of dispensations appeared to be almost automatic; this was a practice which was criticised by divers ’ organisations. At the same time, the Commission stated :", "“The Petroleum Directorate would probably have avoided criticism from the divers if the maximum length of the umbilical had been set at, for example, sixty metres, and the maximum number of saturation days had been set at thirty-two. Then dispensations for the umbilical would only have been given in exceptional cases. The thinking behind the rules and the Petroleum Directorate ’ s dispensation practices seems to have been that - taking all factors into consideration - safety work would be better promoted by having a main rule for the umbilical of about thirty metres and a saturation period of up to sixteen days, combined with extensive use of dispensations.”", "( b ) Decompression tables", "80. The diving companies using tables involving shorter decompression time and therefore lower labour costs had a competitive advantage over other companies operating with longer saturation periods. In order to strengthen their own competiveness, the companies treated the decompression tables which they used as confidential information that should not be disclosed to other diving companies or to the Norwegian authorities.", "81. A letter of 10 July 1969 from The University of Newcastle Upon Tyne (M.R.C. Decompression Sickness Central Registry ) to the Norwegian Labour Inspection Authority states :", "“ ... We will be very pleased to have your cooperation with regard to our research into the immediate effects (Decompression of Sickness) and long term effects (Aseptic Necrosis of Bone) of decompression and will do all we can to help you. Should you require it I would be pleased to visit you and give advice to the best of my ability.", "Our research over the years has shown that the Regulation decompression procedures used in this and other countries were inadequate and experiments are being made, particularly in this country [the United Kingdom] and the United States, with whom we are cooperating, with new decompression tables and varying periods of exposure to higher pressure.", "In this country we have been using the tables produced by Mr. Hempleman, and of which you have a copy, for about three years. Our standard periods of exposure (length of shift) remain at 8 hours, but in America and some other countries the length of shift is reduced as the working pressure is increased. We were hoping to produce a satisfactory decompression for the longer periods of exposure as very short periods are uneconomical from the Contractors ’ point of view.", "Our revised decompression tables are considerably longer than our Regulation (1958) tables, and are based on Naval Diving tables, with longer periods of time spent at the medium pressures and dropping to normal atmosphere from 4 pounds per square inch (approximately 0.28 kg per square centimetre or 3 metres of water). The tables used in Washington State, California and also Australia are considerably longer on average, and the longer period of decompression time is spent at the lower pressures. I gather that you prefer this type of decompression so I enclose a photostat copy of the tables and also the maximum periods of exposure allowed at various working pressures.", "Some years ago we realised that with organised medical services and careful therapeutic recompression procedures the immediate decompression sickness cases could be well controlled even though they could not be prevented and that the long term effects of decompression, aseptic necrosis of bone, was the greater hazard of working in compressed air. Too many healthy young men were being crippled with secondary osteoarthritis of their shoulder and hip joints.", "The use of these new procedures certainly reduces remarkably the incidence of the serious forms (Type 2) of decompression sickness and we are optimistic that it will reduce the incidence of bone necrosis but it appears probable that we will have to give even longer decompression times or reduce the periods of exposure, or both, before we obtain really satisfactory results. It is a strange fact that these prolonged procedures do not reduce the incidence of the simpler form (Type l) of decompression sickness but that is easily treated (see monograph).", "Radiological examination of joints", "We have examined about 1500 compressed air workers, many of them on a number of occasions, and have found that among well experienced men decompressed by the old procedures as many as 50% have signs of bone necrosis. Collections of 80 radiographs showing typical appearances have been produced.", "We think it is important that men exposed to pressure of one atmosphere gauge pressure should be radiologically examined before exposure, every six months during exposure and, if possible, twelve months after exposure.", "Medical examinations", "The initial examination is the same as for a life insurance examination. A chest radiograph enforced in some countries. Fat men should not be employed and long period (shift) workers should be aged over 40 (see monograph).", "Men working at pressures over one atmosphere gauge have a shorter examination every month and if working at lower pressures, every three months.", "No further research has been done concerning surface tension and it is ignored at present ...", "I would also be pleased to know when compressed air work is expected to commence, how many men will be employed and over what period of time. ”", "82. At the initial phase tables for bounce diving developed by the US Navy were being used. The Labour Inspection Authority had no access to tables used in saturation diving. In 1972 it took the initiative to develop Norwegian tables. A German research body was contacted but cooperation proved to be difficult.", "83. In section 5.7.4 of the above-mentioned 2003 Lossius report, the following observation may be found under the title “Work on diving tables offshore” :", "“ [1] Diving tables specify how rapidly a diver can be decompressed following a dive (a table for compression prior to a dive is called a compression profile). The physical and medical factors are addressed in more detail in (3), above. It is primarily the decompression tables that have been and continue to be the subject of discussion. The main issue here is the ascent speeds indicated in the tables and the use of increased O2 content in the breathing gas in order to reduce the ascent time. The time factor is important since the purpose of the table is to bring the diver up to normal pressure without injuries, while prolonged decompression can be very uncomfortable for the diver. In the case of commercial diving in the North Sea, the time factor was moreover a competition factor between the diving companies. Diving contracts were often awarded to the company with the most rapid tables. Regard for the health of the divers thus ran counter to strong commercial interests. This issue [ problemstilling ] was well known to the oil companies, the diving companies, the divers themselves, diving doctors and the Norwegian authorities.", "[2] According to the Commission ’ s information, the tables used at the start of drilling for oil in the North Sea were tables for bounce diving developed by the US Navy. These tables were developed over a period of several years.", "[3] Saturation diving was introduced as a method in the North Sea at the start of the 1970s. Neither the Norwegian diving companies of the day nor the Norwegian Labour Inspection Authority had access to the tables that were used for this form of diving, ,since the tables used by the foreign companies were regarded as private property and confidential. This was a problem for the Labour Inspection Authority because, pursuant to Article 121 of the 1967 Resolution, the Authority was responsible for approving the decompression procedures used by the diving companies. In order for the Norwegian diving companies ThreeX and Nordive to be able to compete for contracts, there was a need for available tables to a depth of 200 metres. According to information from the Labour Inspection Authority, the only available tables in 1972 for the use of helium-oxygen mixtures were the American marine tables to a depth of 116 metres.", "[4] At the end of 1972, the Labour Inspection Authority took the initiative of developing specific Norwegian tables, and, following an application to the Ministry of Industry, was allocated NOK 52, 000 for this purpose. In addition, the Norwegian Navy made available two divers who had volunteered to take part in developing these tables. The Labour Inspection Authority approached the Institut fur Flugmedlzin ( Institute of Aviation Medicine ) at Bad Godesberg in Germany, which was commissioned to develop the tables. According to the Labour Inspection Authority ’ s letter of 29 March 1973, ‘ for the divers concerned, test diving is covered by their insurance contract ’, but they ‘ will need to be insured against loss of licence ’.", "[5] In parallel with this, the Labour Inspection Authority also contacted the University of Zurich, which had expertise in this area. The Authority ’ s letter of 16 April 1973 to the university stated that the large international diving companies had developed helium tables to a depth of 200 metres, but that the tables were kept secret, and nor was information made available concerning the incidence of decompression sickness. When asked about the incidence of such sickness, the response of diving companies was generally ‘ very low ’ or ‘ approximately 5% ’.", "[6] However, divers provided quite different information. The letter further stated that, were helium tables to be made freely available, there would no longer be any commercial basis for secrecy regarding the tables, and this would enable free exchange of views regarding the tables.", "[7] Concerted efforts could then be made to develop optimal diving tables, while the competitiveness of the diving companies would to a greater extent be dependent on the training and skills of the divers and the safety and reliability of the equipment.", "[8] The reply from the University of Zurich dated 30 April 1973 stated that no research institute or diving company currently had access to tables for depths of 100 ‑ 200 metres that were secure enough to be made generally available. Nor was it possible on the basis of a limited amount of money and two test divers to develop such general tables. Large diving companies such as Oceaneering, Comex, SSOS and others withheld information regarding decompression methods, not only for commercial reasons but also out of regard for liability issues. The letter further stated (translation from German) :", "‘ At the moment, all decompression procedures for dives with O2/HE have a higher risk for “Bends”, than, for instance the tables used by the US Navy for conventional dives with air ...", "I am available any time to demonstrate, in Zurich and under my full medical liability, simulated dives with your test divers up to 300 metres with a risk of “Bends” of less than 5%. ’", "[9] The Commission would add that a limit of 5% decompression sickness is today regarded as a relatively high risk of decompression sickness. Current tables operate with considerably lower risk of decompression sickness.", "[10] An internal memorandum of 30 November 1973 from the Inspection Department of the Labour Inspection Authority stated as follows:", "‘ ... stressed that he would attempt to avoid a situation whereby Norwegian companies obtained dubious tables abroad that had not been properly tested, and therefore could not be approved. This might result in newspaper headlines that could show the Norwegian authorities in an unfavourable light. ’", "[11] According to information received by the Commission from one of the test divers, a simulated test dive was conducted in December 1973 at the Institut fur Flugmedizin (Institute of Aviation Medicine). Simulated dives to depths of 100 metres and more were carried out without accidents. However, after the two test divers had conducted simulated dives to 150 metres, one of them showed symptoms of decompression sickness and was then recompressed to approximately 90 metres, following which he was free of symptoms. In the meantime, the other diver had shown symptoms of decompression sickness but, owing to a lack of gas and other practical problems, the decompression sickness was not treated by means of recompression, but in another way. A diving doctor has informed the Commission that both divers suffered from spinal and cerebral bends, and that both of them suffered permanent damage, more serious in the case of the diver who was not recompressed. Assuming that the Commission has perceived the circumstances of the test diving correctly, it was irresponsible to conduct such a trial when apparently it had not been ascertained that it would be possible to treat both test divers for decompression sickness should this occur.", "[12] Work continued on developing tables for saturation diving to a depth of 200 metres, and in 1975 the Labour Inspection Authority was allocated NOK 113, 500 to complete the project. One of the pioneer divers the Commission has been in contact with has informed it that in 1975, at the request of the Labour Inspection Authority, he tested decompression in accordance with one of the tables that had been developed. In his view, the table was not usable in the North Sea, which he clearly stated to the Labour Inspection Authority.", "[13] The British Royal Naval Physiological Laboratory had at the same time conducted trials of tables it had developed to a depth of 200 m, which were made available to Norway for ‘ governmental use ’. Finally, the Norwegian diving company ThreeX had commissioned development of tables at Tarrytown Labs. Inc. In the USA.", "[14] Although the Norwegian authorities gradually gained access to decompression tables for saturation diving, the tables were not made publicly available. The diving companies continued largely to withhold from their competitors the tables that they themselves used.", "[15] The Commission would add that the investigation has not provided any specific clarification regarding whether rapid tables resulted in more cases of decompression sickness. This is partly because factors other than the speeds indicated in the tables must be taken into consideration. ”", "84. In a letter of 21 June 1984 to the Diving Medical Advisory Committee, the Petroleum Directorate stated:", "“ Even when taking into consideration the different approaches to establishing a decompression profile based on different attitudes to the effect of time, PO2 and other factors on gas elimination during decompression, we find the difference between the slowest and fastest table disturbing.", "The difference in decompression time from 1000 feet is close to a week when comparing the fastest and slowest table. In fact the fastest table we have considered is faster than the Duke Emergency Decompression profile from a saturation dive ...This Duke table is in other companies used as the dive profile for aborted dives in serious emergencies ... and it looks more like a modified USN 5 treatment table than anything else.”", "85. In a report of February 1986 prepared for the Norwegian Petroleum Directorate, Mr H.V. Hempleman stated, inter alia, that ensuring the safety of divers during the decompression phase of a saturation dive involved the examination of a very wide range of techniques and practices. He explained that there was a lack of knowledge which had led to an uneasy feeling amongst many people closely connected with diving work that perhaps the current procedures could be causing long - term damage to sensitive tissues, particularly the nervous system. The situation was not helped by persistent rumours that divers had suffered serious and permanent memory impairment and personality changes as a result of their employment as divers. Deciding whether such psychological changes had occurred and if so whether they were attributable to diving activities was a task of great complexity, and it would undoubtedly take many more years of intensive effort to establish an agreed answer. He then pointed out:", "\" Even more time will be required to ascertain whether the decompression phase of the dive, which is the subject of this report, is responsible for any of these long - term problems. Therefore, to minimise the possibility of the decompression phase being involved in any short - term or long - term tissue damage a very cautious approach is essential until the necessary research has been completed.\"", "86. Mr Hempleman highlighted the various factors explaining the lack of hard data in this area. Nearly all relevant knowledge concerning saturation diving had been obtained using human volunteers; a saturation dive was defined as a dive where at least twenty-four hours had been spent at depth before decompression commenced, the costs of mounting a series of definitive experimental saturation dives were huge, each experiment requiring a large pressure chamber facility, and it was useless to expect any statistically significant results from fewer than ten trials with three men per trial; one single experiment would occupy the whole chamber complex for at least a year to settle just one point. He added:", "“ If someone were to suggest that the result would be quite the same at a different pressure, or using a different oxygen partial pressure in the breathing mixture, then the whole experiment would need to be repeated taking these additional factors into account. This would require at least a further four years ’ intensive work, employing the services of many fit young volunteers (not readily obtainable), small teams of skilled people prepared to work all hours of the day and night, specialist medical advisers available throughout the experimental period, large and expensive gas systems, and so on. If the procedures need to be tested at sea before being released for general use then a suitable ship, plus crew of course, with most of the workforce engaged in shore-based experiments, will attempt to repeat the procedures. If all goes well a typical sea trial would be contemplated in a few weeks, at a cost which is worrying to contemplate.", "From what has just been stated it will be quite obvious that the necessary experimentation to enable a satisfactory number of definite quantitative statements to be made would require resources of NASA-like magnitude. The alternative is that some person of unusual intelligence and insight provides an explanation of what is occurring during decompression, and that this answer is sufficiently comprehensive to [be] acceptable without too many exploratory tests of its effectiveness. Neither large sums of money nor the arrival of a comprehensive aetiology of decompression sickness are immediately likely possibilities, so it must be assumed that, as in the last several decades, there will be slowly improving levels of understanding, often based upon the outcome of routines used by working divers. ”", "87. Under the heading “Data collection and analysis”, Mr Hempleman pointed out that because diving was a relatively safe practice the number of decompression sickness incidents in any tests would be small, and errors in small numbers could be seriously misleading. After explaining further the difficulties involved, he stated :", "“Finally a philosophical point needs to be stated ... [N] o one fully understands the basic physical and physiological mechanisms that cause decompression sickness, and therefore it would be safest to assume that the worst possible situation applied. This means that the relevant tissue (or tissues) always possesses separated gas in some form ... In this philosophy no decompressions are free of gas, it is merely that some decompressions may yield more separated gas than others. Although it is possible that there is a critical volume of gas required to cause decompression sickness, there can be no critical pressure change that cause its formation or significantly increases the likelihood of this occurring. All divers are equal in this respect, and so are all decompression schedules.”", "88. The report moreover gave an analysis of the particular features of the “Hyperbaric Environment”, a presentation of “Units of Measurement”, as well as series of detailed “Safety Recommendations” and concluded :", "“Confinement inside a pressure chamber, breathing high - pressure synthetic gas mixtures for days or even weeks at a time must have unavoidable effects upon the saturation diver, but it is essential that the decompression procedures do not add to his difficulties and are proved not to be detrimental to his short - term or long - term physical and mental health. This will eventually require much more detailed information than is sought in this report, but it is hoped that the suggestions made there represent a significant start to realising this aim. ”", "89. In 1990, the Petroleum Directorate initiated a programme of standardisation of compression- and decompression routines. The standardised diving tables that were introduced in 1991 used as a basis the most conservative diving tables that existed in the industry, on the assumption that this would optimise the safety of divers.", "90. In a report of January 1991 comparing the saturation diving tables and assessing the preparation of conditions for standardisation, the Petroleum Directorate stated that a common framework of diving tables would significantly optimise divers ’ safety, provided that a common and simple system of reporting injuries and illnesses sustained in saturation diving was developed in parallel.", "91. After the introduction of standardised tables, decompression sickness became a rare occurrence.", "92. As can be deduced by interpreting the columns illustrating the annual occurrence (from 1978 to 2002) of decompression sickness, in a statistical table prepared by the Petroleum Directorate ( dated 5 November 2003), there were almost fifty-five incidents in 1979, forty in 1979, fifteen in 1980, nine in 1981, twelve in 1982, eleven in 1983, ten in 1984, three in 1985, 1986 and 1997, almost eight in 1988 and nine in 1989, one in 1990, none in 1991 and 1992, three in 1993, none from 1994 to 2001, and one in 2002.", "( c ) Supervision", "93. The Labour Inspection Authority, which was responsible for supervising diving activity in the North Sea until 1978, had one employee specifically entrusted with the task of supervising the entire petroleum industry inshore and offshore. He was educated as a civil engineer and had many years ’ experience as an inshore construction diver before he carried out inspections in the North Sea. The inspections conducted were directed at technical devices rather than diving methods and routines.", "94. The Lossius Report included the following observation ( on page 76):", "“It is uncertain but not very likely that the Labour Inspectorate was familiar with the significant occurrence of decompression sickness. Interviews with pioneer divers and diving medical experts have revealed that the work environment in the North Sea, both before and after 1978, accepted decompression sickness as part of diving, a disadvantage that one tried to avoid, but nevertheless something that went together with diving. The illness was treated with recompression and considered recovered from. The Labour Inspectorate seemed familiar with, but nevertheless unengaged in, the problem of time pressure during bounce diving and many divers ’ sense of insecurity in the work situation – the risk of being put onshore.”", "95. In a letter to Statoil dated 23 March 1990 the Petroleum Directorate observed:", "“There is reason to believe that there was insufficient supervision of the diving industry in the period from the early 60s until the Norwegian Petroleum Directorate issued temporary regulations for the Norwegian continental shelf.”", "96. With regard to the Labour Inspectorate supervision of diving, the Lossius Commission stated (section 5.7.5, penultimate paragraph):", "“Time pressure during bounce diving and the lack of security in many divers ’ working situation – the risk of being put onshore – was a problem the Labour Inspectorate appears to have become familiar with, but did not treat with any particular concern.”", "97. As regards the supervision of the use of diving tables, the Lossius Commission made the observations in section 5.7.4 quoted in paragraph 83 above, notably in the penultimate paragraph (“[14]”) of the quote.", "98. Pioneer divers were critical of the Labour Inspection ’ s competence and supervision. The Lossius Commission confirms their criticism to some degree, stating that:", "“In accordance with [the supervision of] onshore industry, he [the person responsible for diving supervision] focused on fire safety, strength of cranes, cables and other materials ... Less focus was placed on diving methods and routines, and attitudes of divers and the diving management... One might question whether his qualifications were satisfactory, and this must have been known to his superiors.” (Lossius Report, page 76, Section 5.7.5, right side, second paragraph).”", "99. An additional staff member was hired during the last period of the Labour Inspectorate ’ s supervision of North Sea diving, before the Norwegian Petroleum Directorate took over the responsibility and supervision in 1978, starting with five staff members.", "( d ) Professional training", "100. The applicants pointed out that in addition to having satisfactory knowledge and equipment to stay under water, professional divers needed to perform numerous duties such as welding, localisation, installation, dismantling and guiding of equipment, and so on. (Lossius Report, section 4.3.2, pp. 56 and 57).", "101. Despite the varied and demanding work, the Lossius Report stated that there was no organised training of North Sea divers in the first years of the petroleum industry. The Labour Inspection Authority ’ s only requirement for professional divers was an approved medical certificate (Lossius Report, section 4.3.3, first paragraph, p. 57).", "102. The first diving certificate requirements entered into force in 1979, and in 1980 the State opened a diving school.", "( e ) Reporting practices and investigations of accidents and near-accidents", "103. According to the applicants, a culture of under-reporting of accidents and near accidents prevailed in North Sea diving. The Government took no adequate steps to address the under-reporting, and accepted that accidents and near accidents were not investigated. Therefore, oil companies and diving companies did not suffer any consequences as a result of malpractice. They were not compelled to address the cause of accidents and near accidents. On this matter the Lossius Commission stated (section 5.11, p. 89 of the report):", "“The weak supervision regime may also indicate that the directorate lacked understanding of the risk of harm which working in the North Sea involved, in particular for divers. Lack of comprehension of the risk of harm may be related to the fact that the Directorate most likely did not have a realistic perception of the extent of the damage, partly because of the lack of reporting from oil companies and contractors, but also partly because of the directorate ’ s lack of involvement.”", "( f ) Protection of North Sea divers from chemicals in water and air", "104. The applicants submitted that divers had been exposed to dangerous chemicals that existed in, for instance, drilling mud and breathing gas, as well as bacterial growth in decompression chambers. For nearly forty years the matter had not been the subject of any scientific research, and only in 2006 was a study produced. The study, known as the ‘ Thelma Report ’, concluded that divers had been exposed to organic pollution and that the diving bell was the most polluted system. Whilst the testing and monitoring of chemical exposure had not complied with applicable procedures laid down by the industry itself and its contractors, it had not been possible to calculate the full level of pollution and health risk in hyperbaric activities. This should be a priority in the future.", "105. Furthermore, the report stated that no survey was available of the amount of activities that had taken place in polluted areas and that increased knowledge of seabed pollution would facilitate the estimation of risk and level of health-damaging pollution in the diving bell (possibly because divers carry mud with them from the seabed into the diving bell). Consequently, necessary preventive measures could be implemented prior to an operation or the use of the diving bell.", "106. The Thelma Report concluded that there was a lack of knowledge relating to the effects of divers ’ exposure to chemicals. However, North Sea divers continued to live with those effects, and with the uncertainty as to which chemicals had caused them.", "3. Particulars on test diving", "107. The applicants explained that test diving could be divided into two categories, depending on the objective of the dive. The primary objective of experimental diving had been research, namely to explore and develop new equipment, technical processes, operational procedures and diving tables, and to learn about human reactions to hyperbaric exposure. The objective of verification diving had been to confirm whether certain dives were safe or not. Petroleum and diving companies had carried out verification dives primarily in order to establish and document that work operations were possible at ever greater depths.", "108. Test diving had primarily been carried out at the Norsk Undervannsinstitutt AS (NUI) and at its successor NUTEC (mentioned in paragraph 14 above), in Bergen and in the Norwegian fjords. Onshore test diving had taken place in the NUI/ NUTEC facilities, which had enabled diving under similar pressure and conditions to those of North Sea diving. NUI had been established in 1976 by the State body NTNF ( Norges Naturvitenskapelig Forskningsråd, “the Norwegian Scientific Research Council ” ) and Det norske Veritas (an independent foundation providing risk management services). The other owners were the oil companies Statoil, Norsk Hydro and Saga Petroleum. In 1985, NUI was transformed into a private limited liability company with the name NUTEC AS, with Statoil, Norsk Hydro and Saga Petroleum as owners.", "109. The applicant, Mr Muledal to some extent, and more particularly the applicant, Mr Lindahl, and also to a certain degree the applicant, Mr Sigurdur P. Hafsteinsson, provided detailed accounts of their individual experiences of test dives which had caused them pain, suffering and injuries. This related, inter alia, to Mr Lindahl ’ s participation in the Deep Ex I dive in 1980 (300 metres) and the Deep Ex II dive in 1981 (504 metres); Mr Hafsteinsson ’ s participation in the Troll dive in 1985 (down to 450 metres) and Mr Muledal ’ s participation in the OTS I, II and III dives in 1986 ( the latter down to 360 metres). Their account was given in Chapters 6, 8 and 9 of Nordsjødykkerne ( ‘ The North Sea Divers ’ ), by Kristin Øye Gjerde and Helge Ryggvik, 2009. These applicants also adduced various further documents, notably (a) a NUTEC Presentation for divers of 25 August (1985); (b) an “ Instruction for Training Programme for Onshore Manned Verification dive ” by Stolt-Nielsen Seaway Contracting A/S and A/S Norske Shell, dated 9 August 1985; (c) Mr Bjørn Gjerdes ’ account of the Troll dive, dated 21 November 2002; (d) a letter from NUI to the Ethical Committee, dated 25 April 1983; (e) a letter from the Ethical Committee to NUI, dated 27 November 1980, enclosing a form for ethical assessment with a recommendation for approval signed on 26 September 1980.", "110. Item ( a ) above, under the heading ‘ Excursions/Decompression ’, stated, inter alia :", "“ In order to enable divers to work at one depth and live at another, excursion tables have been developed. These have been developed by the US Navy down to depths of 300 msw. When testing these tables during the Deep Ex dives, it was found that excursions of 50 msw produced gas bubbles in the arterial part of the circulation without any signs of decompression sickness. In this dive the excursions are limited to 30 msw, and the divers are closely monitored using doppler techniques so that recompression can be performed if any arterial bubbles are detected. ”", "Under the heading ‘ Monitoring ’ it affirmed :", "All procedures have been used previously during dives at NUTEC and at other centres, and we have never observed any injuries or adverse health effects from these procedures.”", "Under the sub-title ‘ Long-term health effects ’ it stated:", "“We know little about the health hazards associated with diving. Articles in which possible health effects are discussed (Appendix 3) are enclosed. Two of them describe the general effects of diving, and the third describes possible neurological consequences. Because it is of importance to determine if possible health hazards exist and to ensure that the divers ’ health is monitored, an extensive medical programme has been initiated, with testing of all major organ systems pre-dive and post-dive. ”", "111. The applicants explained that item (d) related to the dive known as the Comex dive and that item (e) concerned the Deep Ex I dive.", "112. The applicants in addition referred to a report of 3 August 1986 by Dr. A.O. Brubak to the Labour Inspection Authority and the Ethical Committee, commenting on the Troll dive in 1985:", "“ The most important medical finding was without doubt that five out of six divers showed signs of focal central nervous dysfunction immediately after the dive. Even though these findings were only temporary, such findings are very disturbing and must have consequences for our approach to this diving activity.", "It was previously presumed that diving conducted according to accepted procedures, and where accidents did not occur, was not associated with health risks. Even though diving deeper than 180 m gives rise to certain central nervous symptoms, it has been assumed that these do not have long - term effects. The decompression procedures that we are currently using are considered acceptable if there are no serious clinical symptoms. These assumptions can no longer he considered safe ... ”", "C. Proceedings before the City Court", "113. On 25 February 2005 Mr Vilnes instituted proceedings against the State before the Oslo City Court ( tingrett ), claiming additional compensation on the grounds of negligence ( subjektivt erstatningsansvar ), violations of Norway ’ s obligations under international human rights instruments, notably Articles 2, 3, 8 and 14 of the Convention, and strict liability ( objektivt ansvar ).", "114. On 30 December 2005 Mr Muledal, together with Mr J. and Mr K. and twenty-eight other North Sea divers, also brought compensation proceedings raising similar claims.", "115. On 31 March 2006 Mr Engebretsen and Mr Eng, who have also lodged an application with a number of other claimants (no. 24329/09), lodged compensation proceedings against the State before the City Court.", "116. After a preliminary session on 7 August 2006 the City Court decided to join all the above cases. On 21 January 2007, after a change of lawyer by Mr Engebretsen and Mr Eng, it disjoined the action brought by them from those lodged by other claimants.", "117. Pending the outcome of the proceedings, those brought by the above-mentioned group of twenty-eight litigants (including by the third to seventh applicants, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen ) were adjourned.", "118. By a judgment of 10 August 2007 the Oslo City Court, sitting in a single - judge formation and after holding a hearing between 26 February and 29 March 2007, ordered the State to pay Mr Vilnes NOK 6,527,302 (approximately 859,00 0 ), plus NOK 4,880,479 in default interest (Mr Muledal was awarded NOK 3,123,420 (approximately 411,000) plus interest, Mr K. was awarded NOK 5,946,939, plus interest, whilst Mr J. ’ s claim was rejected). In reaching these conclusions, the City Court deducted from its estimates of past and future losses in earnings (plus interest) the amounts the plaintiffs had received under the special compensation schemes (plus interest). Since the City Court, as explained below, found the State liable on strict liability grounds, it was the latter ’ s responsibility for the diving activities themselves which mattered. It was therefore unnecessary to point to which parts of the activity had led to unfortunate consequences for each plaintiff.", "119. Taking account of the scope of the State ’ s obligations under Article 2 § 1 of the Convention, as interpreted in the court ’ s case-law, ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III); Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII; and Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 ‑ XII), the City Court found that, during the period under consideration (from 1974 to 1989, when the plaintiffs had been professionally active) the authorities had taken measures that could reasonably be expected of them in order to keep divers ’ lives safe. Accordingly, there had been no violation of Article 2 of the Convention. The City Court also rejected the plaintiffs ’ argument that their right to protection of private life and health under Article 8 of the Convention had been violated. Regard was had to the Court ’ s case-law (in particular López Ostra v. Spain, 9 December 1994, Series A no. 303 ‑ C; Fadeyeva v. Russia, no. 55723/00, ECHR 2005 ‑ IV; and Ledyayeva and Others v. Russia, nos. 53157/99, 5324 7/99, 53695/00 and 56850/00, 26 October 2006 ).", "120. As to the question whether the State was liable on strict liability grounds, the City Court considered, inter alia, that any right to compensation for divers could not be curtailed with reference to the argument that they had accepted the risks involved. A broader assessment had to be made, having regard to the interests of the parties to the case and to superior interests of a public character. A central question in any such assessment was to determine the entity which was the nearest to the risk that had triggered the damage and for that reason should be held liable. This was a question that ought to be based on a natural and reasonable weighing of interests, whether there was a need for strict liability in such matters, and whether strict liability would lead to a reasonable outcome.", "121. In the present case, a group consisting of approximately 400 strong, healthy young men had taken on jobs as professional divers at the beginning of what ought to be described as Norway ’ s oil adventure. Even though the divers earned very good salaries, the City Court found that many of them had paid an unexpected price in respect of their health. The City Court noted the observation in the Lossius Commission ’ s report ( NOU 2003:5 p. 102) that a disturbing number of divers were on disability pensions, and that relatively young people, even some who were in their forties, had been affected. This, together with the great number of cases of psychological damage, had suggested that many divers had carried a heavier burden than most people had to bear in their professional lives.", "122. Whilst finding irrelevant as a starting point how much Norwegian society had benefitted from oil revenues, the result of the oil adventure, namely that Norway had become one of the world ’ s richest nations, was relevant in the balancing of interests. Even though the State ’ s links to diving activities would be stretched beyond what was clearly covered by judicial practice, the City Court found that, on the whole, making the State liable for the damage to divers ’ health would be reasonable and equitable. In view of these considerations, the City Court found the State liable on objective grounds. It was therefore not necessary to consider whether it was also liable on subjective grounds.", "D. Appeal to the High Court", "123. The State appealed against the City Court ’ s judgment to the Borgarting High Court ( lagmannsrett ). Mr Vilnes and Mr Muledal lodged an appeal (as also did Mr J. and Mr K.) arguing that the amount of compensation awarded had been too low, and maintained their request for a judgment holding that the Convention had been violated. The Offshoredykkerunionen (Offshore Divers ’ Union) and IndustryEnergy intervened in support of Mr Muledal and other plaintiffs (but not Mr Vilnes ).", "124. Between 12 August and 18 September 2008 the High Court held an oral hearing at which the parties with their representatives were heard, as were the interveners, forty-three witnesses, and several expert witnesses.", "125. In a judgment of 28 November 2008 the High Court found for the State and dismissed the compensation claims brought by Mr Vilnes, Mr Muledal and the other plaintiffs, finding no basis for holding the State liable on (1) strict liability grounds, (2) on employer ’ s liability grounds or (3) on grounds of human rights violations. The High Court ’ s reasoning in respect of the second ground included, inter alia, the following considerations.", "126. According to section 2-1 of the Damage Compensation Act 1969, the State could be held liable as an employer for damage caused with intent or negligence by an employee in the performance of his or her duties. It was not necessary to identify the employee who had committed the fault or to link the damage to a specific act. The liability covered the overall effect of individual acts, even though the effect of each act was not sufficient to establish liability. As a starting point, the liability also covered acts carried out in the exercise of public authority. However, Parliament ’ s legislative and budgetary activities were not covered.", "127. Nonetheless, a number of the matters raised by the divers could have been taken up in connection with the security assessment made by control and supervisory bodies prior to their authorising specific diving operations. For example, they could have set as a condition that slow diving tables be used with caution.", "128. With the benefit of hindsight, the High Court could agree with the counter-appellants that it might seem as if the applicable rules had not always been implemented. In certain instances authorisation had been granted after the operations. A practice had been developed whereby dispensation had been granted on the basis of agreements between the operator, the divers, the divers ’ unions and the safety deputy. This practice had the drawback that the individual diver was thereby in a weak negotiating position, because of a risk under certain circumstances of being moved onshore when he was perceived as being difficult. Time-limits for applications and working hours had not always been respected. The High Court also agreed that under Article 3.4 (1) in conjunction with Article 3(k) of its Appendix of the 1978 Regulation (see paragraph 168 below ), that the Petroleum Directorate could demand that the diving table used in a given diving operation be produced. Whether it was safe to use a table had been something that should have formed part of the basis for authorising a diving operation. It did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them.", "129. However, the assessment of what requirements could reasonably be imposed on the service and the activities had to be made in the light of the then prevailing perceptions of the risk involved in diving. The only way to remove all risk would have been to impose a total prohibition on diving. That had never been in question either in Norway or in any other countries. The prevailing view was that diving was justified even though diving led to fatal and other serious accidents. The question for a supervisory authority had therefore always been centred on the level of risk that was justifiable. Whether to grant authorisation for a given diving operation depended on a balancing of interests. Those of the divers weighed heavily, but were not the only ones. There was reason to display judicial restraint in reviewing this balancing exercise, especially after such a long lapse of time and changes in perceptions.", "130. The High Court pointed out that assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question. That sudden changes in pressure could have a great impact on the organism and could in the worst case be life-threatening had been known for a long time. However, there had been less knowledge about the long-term effects. On the evidence the High Court found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness had only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk - free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but which had to be accepted when it occurred. It had been treated with recompression and recovery was then deemed to have taken place ( see NOU 2003:5, p. 76).", "131. Opinions about the long-term effects of diving had not been entirely unequivocal. A number of reports, scientific opinions, medical statements, articles and so on concerning the possible long-term effects had been adduced before the High Court, and the parties had relied on those of the opinions which supported their own views. The High Court observed that present-day knowledge was of no importance for the assessment of liability to pay compensation in respect of events that had occurred many years ago. It was not possible, nor necessary, for the High Court to take a stance on the disagreement between scientists and in the scientific milieu. It was sufficient to note that there existed a disagreement. The High Court found it established that in the context of the issue of liability to pay compensation there had been scientific support for the perceptions of the State as to the possibility of long-term effects. That there were other scientists who held other views could not be decisive.", "132. The High Court found it established that the psychological effects of extreme, life-threatening and, especially, repeated incidents had been known. All the counter-appellants had described incidents that involved such a degree of stress that their condition could be regarded as PTSD. The High Court found it probable that Mr Muledal and Mr C had developed PTSD. Mr Vilnes had suffered minor brain damage and had in this connection developed an organic personality disorder. The High Court agreed with the divers that the State ought to have been aware of these aspects of diving activities and that a number of divers probably would suffer psychological damage. The Labour Inspection Authority expected that diving at ever greater depths might lead to psychological problems for divers. A stricter implementation of the requirement that diving should be safe would probably have contributed to reducing the stress level. Nevertheless, a certain level of danger and stress had to be accepted if diving was to take place. It had been impossible to say to what extent the burden of that stress could have been reduced and whether such a reduction would have been sufficient to prevent the counter-appellants from sustaining psychological damage. A certain level of stress had in any event been inevitable.", "133. The High Court agreed with the counter-appellants that, according to present - day opinions, it might seem imprudent to have authorised diving operations involving the use of decompression tables that had previously led to accidents. However, those tables were in common use at the time, and not just in the Norwegian part of the North Sea. Apart from Norway, no country had introduced standard decompression tables. The accidents that had occurred had never given rise to legal proceedings against the State. While it might have been desirable for the supervisory authorities to have applied a stricter practice with regard to the authorisation of rapid decompression tables, in view of the conditions at the time the High Court did not consider that this could justify liability.", "134. Nor did the High Court find that the way the authorities had handled licensing matters had disregarded safety in a manner giving rise to liability, even though from the divers ’ point of view it would have been desirable for their interests to have been better protected.", "135. The State ’ s ownership of the petroleum resources could not justify liability for accidents related to oil extraction. It had been the position that the licence holders had acquired ownership of the petroleum produced (section 3-3(3), second sentence, of the Petroleum Act), thereby absolving the State from liability as owner, and that State ownership had been limited to the oil resources under the sea floor.", "136. Even though the supervisory authorities had committed certain errors, there was no support for the conclusion that divers ’ working environment on the Norwegian continental shelf had been regarded as worse than that in other countries extracting oil in the same maritime area. The accident rates had not been significantly higher in the Norwegian area.", "137. The High Court did not share Mr Vilnes ’ s view that the State had been the actual wrongdoer. The wrongdoers had been those who had conducted the diving activities. In addition, the licence holders had been jointly and severally liable for the damage (section 10-9 of the Petroleum Act). The assertion that diving - especially North Sea diving in its earlier phase - involved extreme risks called for no further explanation. The purpose of putting in place supervision and a legal framework had been to reduce that risk. An alternative for the State would have been to avoid liability by doing nothing. It did not follow from the fact that the State by taking different measures had sought to reduce the risks involved in a lawful but dangerous activity, that the State had thereby taken on the responsibility for ensuring that adequate measures were in place at all times. The fact that the State had contributed significantly to a decrease in the accident rate over time did not mean that the previous situation had been unjustifiable.", "138. Mr Vilnes had cited certain specific incidents, firstly at the diving vessel Arctic Surveyor in 1977, where he had been exposed to serious decompression sickness, and secondly at the diving vessel Tender Comet in 1983, relating to dispensation from the maximum length of the umbilical.", "139. As regards his experience at the Arctic Surveyor, the High Court found that his decompression sickness in 1977 had most likely been caused by the facts that the diving company had used too rapid a decompression table and that there was no medical doctor who could assist him. This incident had probably been a strong contributory cause of Mr Vilnes ’ s brain and spinal injuries. With hindsight there was plenty to contribute to the view that the diving operation should not have been authorised, and that Mr Vilnes should have received medical follow-up. Nonetheless, it was not possible to evaluate at the time of the High Court judgment whether the risk level had departed from what in 1977 had been considered justifiable in diving, in accordance with Article 121 of the Security Regulation, and the normal risk level in the North Sea. Mr Vilnes ’ s injuries had only been diagnosed later. In the High Court ’ s view there had been no basis for holding the State liable for authorising the diving operation in question.", "140. As regards the diving operation from the Tender Comet, the High Court noted that Mr Vilnes ’ s criticism had been upheld, and that in 1983 employees of the Petroleum Directorate had disagreed on whether the operation should have been authorised or stopped. However, if the Petroleum Directorate had committed faults, this did not necessarily mean that those requirements that could reasonably be set for their services had been ignored. In this regard, responsibility also lay with the operator and the diving company, and authorisation did not mean that the State had taken over financial responsibility for any faults imputable to the operator and the company. Even though it was established that the Petroleum Directorate should not have authorised the operation, this would not suffice to make the State liable.", "E. Appeal to the Supreme Court", "141. Mr Vilnes appealed to the Supreme Court, complaining that the Norwegian authorities had given prior approval to diving operations carried out from the vessels (1) Arctic Surveyor and (2) Tender Comet, (3) had authorised dispensation from the requirements regarding the maximum length of the umbilical used in a diving operation from the Tender Comet, and (4) had failed to stop diving operations from the Tender Comet. He maintained that, regardless of whether there had been any negligence, the State was liable to pay him compensation on the ground that these acts or failure to act had been in breach of the applicable rules requiring that diving take place in a safe manner ( Article 121 of the Royal Decree of 25 August 1967). As an alternative, he submitted that regardless of whether the said acts or failure to act had been unlawful, they had involved a failure on the part of the State to comply with its obligations under Articles 2, 3, 8, and 14 of the Convention. As a further alternative, Mr Vilnes argued that the legal framework as such had entailed a violation of the Convention. In a further submission he stated that the State had been liable as an employer under section 2-1 of the 1969 Damage Compensation Act. Also in this context he cited the Convention. Finally, he argued that the State had been responsible on grounds of strict liability for the damage he had sustained from the diving operations. In his grounds of appeal he put forward a number of arguments, including “lack of information from the State” while referring to the arguments he had put before the High Court.", "142. Mr Muledal appealed against the High Court ’ s assessment of the facts and application of the law. Amongst many other arguments, he submitted that the Norwegian authorities lacked competence to assess the companies ’ tables, and that they had not acquired such competence even though they were aware that the tables were a factor of competition.", "1. Partial grant of leave to appeal", "143. On 24 March 2009 the Appeals Leave Committee of the Supreme Court (a) refused the plaintiffs leave to appeal with respect to the assessment of the evidence regarding the question of liability whilst allowing them to adduce certain supplementary evidence and (b) refused Mr Vilnes leave with regard to his liability claims concerning points (1) to (4) above. As regards the remainder, the Appeals Leave Committee granted the plaintiffs leave to pursue their appeal. It further decided that the appeal proceedings should be limited to the issue of grounds for liability, and postponed the issues of causality and assessment of damages to a later stage.", "2. Supreme Court judgment of 8 October 2009", "144. By a judgment of 8 October 2009 the Supreme Court unanimously rejected their appeals.", "(a) Question of strict liability", "145. First, in considering whether the State could be held liable on the basis of the general principle on strict liability, the Supreme Court observed, inter alia, that the fact that diving was a risky activity ought to be the starting point for any assessment. Nonetheless, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep - sea dives could lead to neurological injuries had emerged only gradually. Even when the Lossius Commission had produced its report at the end of 2002, it had concluded that well controlled research on delayed effects was missing ( NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them.", "146. The salient point in the assessment was whether there was a sufficient link between the State and the harmful activity. Since the point of departure in Norwegian law was that only the owner or proprietor of the relevant activity could be held liable, and since in this case the State was not the owner or proprietor of the diving businesses, the decisive matter would be whether other sufficient links existed. In this context the Supreme Court thoroughly examined in turn the various arguments advanced by the claimants to establish the existence of such a link, observing notably the following:", "(a) While section 2 (1) of the Continental Shelf Act provided that the right to submarine natural resources was vested in the State, the provision was intended to clarify or confirm Norwegian jurisdiction over the continental shelf and had little weight in the context of the law of torts. The State had not elected to carry out petroleum activities on its own, but had left this task to others, under State control. When petroleum was extracted from the seabed, the ownership of the oil and gas passed to the licensee. The operations took place on behalf of the oil companies, who bore the risks attached, and not of the State. The fact that the State was the original licensee was thus of lesser importance.", "(b) The State ’ s wide-ranging control over oil activities had limited weight in an assessment related to the law of torts. The State had not carried out test drilling for oil, had not carried out petroleum production under its own auspices, and had not directly been an employer or a principal in the diving activities. Its general control thus gave little guidance as regards the question of liability for this activity. If viewed independently, the control argument would otherwise lead to the State being held strictly liable for all damages in connection with oil activities in the North Sea; case - law provided no basis for such a broad conclusion.", "(c) Even though the legislative history of the Taxation of Subsea Deposits Act referred to the State ’ s ownership right to the resources, the State ’ s powers to impose taxes and fees in the petroleum sector were not different in principle from those it exercised in other areas of society. It could not make a difference whether the State ’ s revenues in this area were high, or whether special types of fees had been stipulated for the Continental Shelf. Such special features did not alter the principle that the State collected taxes and fees from the whole of Norwegian society. Nor did the tax revenues, etc. from the North Sea create any special connection to that part of the oil activities that related to the diving activity.", "(d) For similar reasons, the arguments concerning the State ’ s business operations or financial involvement could not be upheld either. While it was certainly true that the State had secured substantial ownership interests in important fields for Statoil and “SDØE ” ( Statens direkte økonomiske engasjement – Direct Financial Participation by the State), Statoil was a separate legal entity, different from the State. This ought to be the decisive factor.", "The Supreme Court concluded that the circumstances adduced, whether considered on their own or together, did not involve a sufficiently close connection between the State and the harmful activity to justify holding the State liable on the basis of the general principle of strict liability. While it was true that the State had been actively involved in the oil sector, there was no difference of principle between this and a number of other areas. As regards deep-sea diving, the State ’ s role had been limited to supervision and control. This was not something which created a close connection and could not be distinguished from other instances of public supervision and control.", "(b) Question of employer ’ s liability", "147. Nor did the Supreme Court find that the State was liable as an employer for negligence, under section 2-1 of the Damage Compensation Act 1969, notably on account of the activities performed by the Labour Inspectorate and the Petroleum Directorate. The Supreme Court had regard to the development of the relevant regulations aimed at safeguarding security, the manner of organising the control and implementation of the safety rules, the practice of giving dispensations, inspections, training, diving equipment. The Supreme Court found no basis for holding that either of the above instances had been passive. Its assessment comprised the following reasons :", "(a) Whilst it had been assumed in the legislative history of the 1969 Act that a more lenient standard of care applied to certain forms of public control, assistance and service enterprises compared with that which followed from the general rules for employer ’ s liability, those more lenient standards had not been applied in the case-law. It ought to be determined what demands could reasonably be placed on the enterprise concerned. Relevant criteria included the general risk of harm in the area concerned, the financial resources at the disposal of the authorities, the nature of the interests that had suffered harm, and the opportunities the injured party had to insure against harm and omissions; while actions and omissions ought to be distinguished from each other.", "(b) Thus, there was no basis for applying a more lenient standard of care in relation to the Norwegian Labour Inspection Authority ’ s and subsequently the Norwegian Petroleum Directorate ’ s issuing of permits to carry out diving. Under the applicable regulations, in order to obtain authorisation, first from the Labour Inspection Authority and later from the Petroleum Directorate, the diving companies had to submit a plan for a diving operation. Since it was the responsibility of the authorities to consider whether the diving could be carried out safely, they had been actively involved in the matter and could prevent a given diving operation from taking place.", "(c) At the same time, regard ought to be had to the knowledge possessed at the material time [1]. Norway had no previous experience with petroleum activities. As emphasised by the Lossius Commission, at the beginning it had been foreign players who possessed the technical knowledge about deep- sea diving, and the medical and technical research which existed in this field at the time was rather sparse ( NOU 2003: 5, p. 51 ). To acquire knowledge and experience would obviously take time ( pp. 50-55). The authorities ’ supervision was naturally also in line with this. Thus, the manner of application of the general duty of care ought not to be based on hindsight. Also, diving was in itself a risky activity, especially deep- sea diving related to the development of oilfields.", "(d) Concerning the regulatory framework that had been in place at the relevant time [2], regard was first had to the rules contained in the Royal Decrees of 15 May 1964, 9 April 1965 and 25 August 1967 and the Circular of 25 March 1971 communicated by the Labour Inspection Authority. Thus far in the development, no factors had been pointed to that could give rise to liability. The rules had been issued early, their contents was prudent and, together with the Circular, showed that the authorities had taken steps to prevent injury. Although it might be the case that the 1978 regulations should have been adopted earlier, and that the diver organisations ’ viewpoints should have been reflected to a greater degree, such a general criticism of the rules - which seemed to underlie parts of the divers ’ arguments - could clearly not lead to liability. Like the High Court, the Supreme Court placed emphasis on the fact that Norway was the first country after the United Kingdom to introduce rules for diving at sea, while the USA adopted rules in 1981 and Denmark in 1995. The High Court has also found that the regulations that were in force prior to the adoption of the 1978 Regulations were not worse than in other countries.", "(e) From 1979, the Petroleum Directorate had revised the regulations. This had led to the introduction in 1980 of diver certificates and new competency requirements, maximum limits for the time a diver could spend in saturation, in the water and in diving bells, as well as stricter requirements for reporting accidents. Among other changes, it could be mentioned the issuance of safety reports from April 1980, which provided information on incidents or problems that the sector should be aware of. In the fall of 1990, the Petroleum Directorate had taken the initiative for a project to standardise the compression and decompression tables, which resulted in recommendations that were still in use when the Lossius Commission submitted its study ( NOU 2003:5, pp. 81-82). These factors showed that the Petroleum Directorate did not display passivity but on the contrary that it took active steps to improve the rules relating to divers ’ safety.", "( f ) Publicly funded supervision of diving activities had been established – carried out primarily by one full- time technical officer of the Labour Inspection Authority until 1 April 1978 and thereafter by five officers of the Petroleum Directorate, had not been done irresponsibly. Although from time to time the work pressure under which the Labour Inspection Authority operated had been too great to enable it to carry out as many inspections as desirable, additional assistance was hired in depending on the circumstances, though it was not the task of the judiciary to review budgetary considerations. The Lossius Commission had also emphasised that no personal criticism was attributable to the responsible party in the Labour Inspection Authority ( NOU 2003: 5, pp. 70-71 ). Supervision had become more efficient after the Petroleum Directorate ’ s team of five officers led by an educated and experienced diver had taken over ( pp. 79 and 82 ).", "(g) As regards the implementation of the rules, the authorities had in the main been aware of the North Sea divers ’ working conditions and demands for improvements. As observed by the High Court in the main the State had been aware of the conditions in the North Sea, including divers ’ working conditions. However, because of deficient reporting they had probably not had a complete picture of the extent of near-accidents and other undesirable occurrences. The State had also been aware of divers ’ demands for improvements.", "( h ) As to the effects of diving, it had been known that sudden changes in pressure could have a great impact on the body (and, as pointed out by the High Court, could in the worst cases be life-threatening) but there had been less knowledge at the time about the long-term effects. In 1983 the Norwegian authorities had taken the initiative to hold a conference in Stavanger in order to discuss the existence of undesirable medical consequences of deep sea diving. American, British and French specialists in diving medicine had held that diving in accordance with the regulations was safe, whilst others, including Norwegian researchers, had not been convinced of this. At a consensus conference held ten years later in Godøysund the position had been largely the same, with a leaning towards the possibility that it might cause neurological and psychiatric after-effects. In 2002 the Lossius Commission had concluded that there was no clear evidence that could answer the question. On the evidence, the High Court had found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness had only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk- free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but one which had to be accepted. It had been treated with recompression and this treatment had been regarded as all that was necessary ( NOU 2003 :5, p. 76 ).", "( i ) Knowledge about the psychological effects of extreme, life - threatening situations, especially repeated experiences of this kind, in the form of PTSD, was possibly of more recent date.", "( j ) As regards the administrative dispensation practices concerning the applicable saturation time and length of the umbilical (see paragraphs 77 and 78 above), the relatively strict rules combined with a lenient attitude to the issue of dispensations had been based on a balancing of interests, hence the view that it would lead to better control than under more liberal rules. Even though dispensations had been granted regularly, this did not appear to have been negligent. According to the regulations, all applications for dispensation had to include a statement from the divers ’ representative and diving physician that the proposal had been considered and found to be in order. The documentation presented to the Supreme Court showed that this practice was followed strictly. Emphasis was also placed on the divers giving their consent. It was otherwise of interest to note that the United Kingdom had still more liberal regulations (maximum saturation time of twenty-eight days and no specific umbilical restriction). On the whole the arrangement did not appear to have been irresponsible and no information concerning specific dispensations pertaining to the appellants suggested a different assessment.", "( k ) In this context, the Supreme Court examined the question of decompression tables :", "“110. An important issue in the case has been which diving tables were accepted as regards how the regulations were put into practice. Decompression tables that were too fast could, as mentioned, lead to decompression sickness. The appellants have argued that here the Petroleum Directorate ’ s control was too lax, which led to injury, and they refer to the fact that standard tables were subsequently introduced.", "111. When the companies applied for consent to dive that was based on rapid ascent they normally had the divers ’ consent. The problem was that the diving companies regarded the decompression tables as confidential for competitive reasons, since companies with fast tables were often preferred when assignments were awarded. When drilling for oil in the North Sea started, bounce diving tables developed by the US Navy were utilised. The Norwegian Labour Inspection Authority did not have access to tables for saturation diving, and in late 1972 took the initiative to develop their own, Norwegian tables. A German research institution was contacted, but the work was difficult, see in more detail NOU 2003:5, pages 74-76. In 1984, the Petroleum Directorate expressed concern regarding the variations in the tables and announced a revision. Standardised tables were not achieved until 1990, following a project financed by the Petroleum Directorate. Since then, decompression sickness has been extremely rare.", "112. The assessment of why the supervisory authority allowed the diving companies to use decompression tables that could lead to decompression sickness must be carried out in light of the knowledge and attitudes that prevailed at the time in question. The authorities did not have knowledge about which tables would eliminate decompression sickness. As previously noted, there was widespread uncertainty concerning the harmful effects, and in the industry there was a perception that decompression sickness was an inconvenience one attempted to avoid, but that was regarded as being part of the work. It has been stated that other countries still do not have standardised tables.", "113. ... The reasons why the divers generally did not speak up seem to have been a sort of professional pride, but also the experience of pressure from the diving companies. In some companies, ‘ difficult ’ divers could be sent to land. As mentioned, the Petroleum Directorate was aware of this. In a newspaper interview, the head of the Petroleum Directorate ’ s diving section encouraged the divers to speak up about blameworthy conditions. Whether or not this had any effect is unclear. In any event, the lack of reporting had to have an impact on the effectiveness of the supervision. ”", "( l ) On the basis of an overall assessment, the authorities ’ practices could not be characterised as negligent. In this connection regard had been had to the appellants ’ arguments concerning the absence of a physician on the diving vessel and that the pressure chamber had not been easily accessible. The companies had had diving doctors whom they could consult. First and foremost, it had been for the diving companies and the oil companies to ensure that operations at their account and risk be carried out in accordance with the regulatory requirements that diving should take place in a prudent manner. This was not altered by the fact that medical experts generally indicated a need for more knowledge about diving-related medicine and greater pressure chamber capacity.", "( m ) As regards the applicants ’ general criticism of the inspections, those carried out by the Labour Inspection Authority had been fewer than those by the Petroleum Directorate, which could mainly be explained by the resources at their disposal.", "( n ) There was no information to the effect that other divers ’ lack of professional qualifications had created situations that had endangered Mr Vilnes and Mr Muledal.", "( o ) The rules imposed on the diving companies contained detailed safety requirements regarding diving equipment. There was little information about episodes concerning the appellants, and no blameworthy passivity on the part of the authorities had been documented. An illustration of active steps taken had been the Petroleum Directorate ’ s inspection of Tender Comet in 1983.", "( p ) The issue of hyperbaric evacuation ( concerning the case of Mr Muledal, see paragraphs 43 and 44 above ) was addressed in the 1978 Regulations. No passivity had been displayed by the Labour Inspection Authority or the Petroleum Directorate, nor could it be assumed that the problem had had any consequences for the appellants.", "148. To the above, the Supreme Court added that many of the factors pointed out by the divers, such as too- rapid decompression tables or equipment defects, might very well have caused considerable additional strain for many divers. However, this could not imply any liability on the part of the Labour Inspection Authority or the Norwegian Petroleum Directorate, as long as they did what could reasonably be expected of them in carrying out their supervision.", "149. Finally, the Supreme Court examined the complaint made, inter alia, by Mr Muledal regarding test diving in relation to his participation in the OTS III dive, which had lasted for twenty-seven days from 6 November 1986, and in which the deepest dive had gone down to 360 metres. It noted that test dives had taken place at a research institution, NUTEC, which was an independent legal subject, separate from the State (see paragraph 108 above) and that, accordingly, any compensation claim ought to be directed at NUTEC. The test dives had not been commissioned by the State, but had been initiated and primarily financed by the oil companies. The appellants ’ suggestion that by contributing to making feasible work (the laying of pipelines and oil production) at great depths the test dives had served the interests of the State could not result in the State being held liable", "150. Any such liability would have to be founded on the authorities ’ responsibility for supervision of test dives. The Supreme Court noted that the test dives had raised complicated medical and technical diving questions. In view of the procedures in place, the thorough examination by the competent bodies before the test dives were authorised, as well as the advance information provided to the divers (that it was voluntary and that they could withdraw) and the supervision by medical doctors, it found no basis for holding the Labour Inspection Authority liable for negligence in its authorisation and supervision thereof. To the extent that the agreed procedures had not been adhered to during or immediately after each dive, any claim for damages would have to be addressed to the companies or institutions that had implemented the dive, not against the State ’ s supervisory authorities.", "(c) Question of liability on grounds of human rights violations", "151. Lastly, the Supreme Court considered whether there had been a violation of the Convention.", "152. As regards the plaintiffs ’ complaint under Article 2 of the Convention, the Supreme Court observed that this provision was applicable not only in the event of loss of life but also when in the circumstances there was a threat to physical integrity ( see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 116 73/02 and 15343/02, § 146, ECHR 2008 (extracts) ). This provision further obliged States to refrain from deprivation of life and to take appropriate steps to safeguard lives. This obligation to safeguard lives entailed above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. This applied in the context of any activity, whether public or not, in which the right to life was at stake ( ibid., §§ 128-31, a case which concerned a landslide). The Supreme Court also took note of Guerra and Others v. Italy (emission of poisonous gases) (19 February 1998, Reports of Judgments and Decisions 1998 ‑ I.); L.C.B., cited above, (health hazards from atomic explosions); and Öneryıldız, cited above, (methane gas explosion at a rubbish heap). The Supreme Court observed that none of these cases had concerned threats to life occasioned by professional risk. On the latter subject, as far as the Supreme Court was aware, there were no judgments delivered by the European Court, though its statements of principles had been formulated in such a general way that it could not be excluded that it would at least to some degree apply Article 2 on such matters. It was not necessary to go further into this, since there had in any event been no breach of this provision in the present case.", "153. The Supreme Court observed that from the European Court ’ s case-law it followed that in the event that there was a real and immediate danger to life, and this danger was or ought to have been known to the authorities, the latter might be required to take special measures. In the assessment of what steps ought to be taken, the State would in principle have a margin of appreciation. An impossible or disproportionate burden could not be imposed, since the State had to make operational choices in terms of priorities and resources ( see Budayeva and Others, cited above, §§ 134 and 135; see also L.C.B., cited above, § 38; and Öneryıldız, cited above, §§ 100 ‑ 101).", "154. However, in the instant case, the State had in accordance with the law adopted extensive regulations on diving activities. An administrative framework had been set up, and supervision of it had been entrusted to the Labour Inspection Authority and the Petroleum Directorate. Moreover, funding had been allocated to their activities according to priorities and in the light of available resources. There had been nothing to suggest that the supervisory bodies in question had been passive when they had become aware that transgressions of the rules involving risk had occurred. The measures taken had been based on what they knew at the material time. Therefore, it did not appear that Article 2 of the Convention had been violated.", "155. As regards the plaintiffs ’ complaint of violation of Article 8 of the Convention, the Supreme Court took note of their argument based on the European Court ’ s case-law in relation to search and seizure of documents on professional premises, notably Niemietz v. Germany, 16 December 1992, Series A no. 251 ‑ B ). However, the subject matter of such cases had been so different from that at issue in the present case that the Supreme Court could not rely on it.", "156. The plaintiffs had also prayed in aid case-law concerning health risks caused by pollution. However, in this regard the Supreme Court observed that Article 8 had come into play mainly because private and family life was enjoyed in the home. On this point the Supreme Court quoted the following passage from Giacomelli v. Italy, no. 59909/00, § 76, ECHR 2006 ‑ XII :", "“Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home.”", "157. Thus, also the European Court ’ s case-law regarding damage to health resulting from pollution was not immediately comparable to the present case.", "158. The Supreme Court noted that Roche v. the United Kingdom [GC] (no. 325 55/96, §§ 155-169, ECHR 2005 ‑ X) was the only judgment cited by the parties that had concerned possible damage to health sustained in connection with professional activities. The applicant in that case had served in the British Army and had for a period voluntarily participated in experiments on mustard gas and nerve gas. He had claimed that this had caused him injuries and demanded access to the case documents. The European Court had found Article 8 applicable and that this provision had been violated on account of the refusal to grant the applicant access to the documents in question. This judgment gave support to the view that test diving was covered by Article 8 but not risky diving in general. However, it was not necessary to determine this question, since any obligation to take safety measures that might follow from Article 8 had in any event been complied with. In this connection, reference was made to the discussion above under Article 2.", "159. Also, there could be no question that the conditions pertaining to diving generally, as alleged by Mr Vilnes, could amount to inhuman and degrading treatment in the sense of Article 3.", "160. As regards the test dives carried out at NUTEC, in which Mr Muledal and Mr C had participated, the Supreme Court observed that under Article 7 of the 1966 International Covenant on Civil and Political Rights, no one should be subjected without his free consent to medical or scientific experimentation. A similar protection probably followed from Article 3 of the European Convention. In the present case, it was clear that the divers had been informed about the test dives beforehand. A written guide had been produced, and there was nothing to indicate that the test dives in question had been carried out otherwise than planned. The test dives had been approved in accordance with the Helsinki Declaration prepared by the World Association of Doctors in 1964, NUTEC practice and the guidelines of the Ministry of Social Affairs of 8 June 1984 on the mandate of regional committees on the ethics of medical research. There was no support for holding that the delayed injuries sustained by Mr Muledal and Mr K. were attributable to these test dives. The tests had been carried out in the light of the information available at the time, from which it had appeared that test dives involving far greater depths had been carried out in the USA, the United Kingdom, France and Switzerland. Accordingly, there had been no breach of Articles 3 or 8 of the Convention or of Article 7 of the International Covenant.", "161. Nor did the Supreme Court find any support for Mr Vilnes ’ s complaint of violation of Article 14 of the Convention on the ground that the protection level for diving in the oil sector had been lower than for work in other sectors. This provision only applied to differential treatment that was deemed unjustified in relation to rights that were protected by the Convention. His complaint was of a general nature and did not specify which rights that he – or possibly other divers – had been deprived of. To the extent that he could be considered to complain that divers for a period did not fall within the 1977 Working Environment Act ( arbeidsmiljøloven ), his argument could not succeed." ]

[ "II. RELEVANT DOMESTIC LAW", "162. At the Court ’ s request, the Government submitted numerous particulars of legal instruments adopted with a view to protecting the safety of divers. In the light of the factual circumstances complained of in the instant case, the following legal texts appear particularly noteworthy.", "163. From the Royal Decree of 15 May 1964, laid down pursuant to the Continental Shelf Act of 21 June 1963 ( kontinentalsokkelloven ), it followed that exploration on the Shelf had to be carried out \"in a prudent manner\". This was continued in the Royal Decree of 9 April 1965, with a view to exploration for and exploitation of petroleum deposits, while emphasising that the relevant ministry could issue more specific safety rules ( Article 37) and appoint inspectors ( Article 45).", "164. The first independent safety regulations relating to exploration and drilling (not production), laid down in the Royal Decree of 25 August 1967, maintained the requirement that exploration and drilling should take place in a prudent manner in accordance with good and reasonable practices ( Article 4), and in Article 121 contained special rules regarding diving:", "“A plan shall be submitted for approval, to the Ministry or anyone authorised by it on how diving operations are to be conducted before the work is commenced. The plan shall contain details concerning the equipment to be used and what safety precautions will be taken to protect the life and health of the diver.", "Unless the diver has an approved Norwegian diver ’ s certificate, permission must be obtained in advance from the Ministry or anyone authorised by it before diving operations can commence.", "Diving operations must be carried out in a safe manner according to the regulations in force at any time.”", "165. Authority under this provision was delegated to the Norwegian Labour Inspection Authority, which on 26 March 1971 sent a circular to ‘ All diving operators ... on the Norwegian Continental Shelf ’. The circular included, inter alia, an English translation of Article 121, together with a requirement that diving bells were always to be used under certain specific circumstances.", "166. On 1 July 1978 the Petroleum Directorate adopted with immediate effect a Temporary Regulation on Diving on the Norwegian Continental Shelf, a comprehensive set of rules setting out specific safety requirements for diving operations, including supervision of decompression, divers, diving contractors, diving supervisors, diving equipment, breathing gas, evacuation under pressure, fire protection, and log booking. The latter was to contain, inter alia, the maximum depth reached on each dive, the bottom time on each dive, the type of equipment and breathing mixtures used, the work done by the diver on each occasion, the decompression procedure followed by the diver on each occasion (including the designation of the decompression tables used and possible deviations from these), any decompression sickness, other illness, discomfort or injury suffered by the diver, any other factors relevant to the safety and health of the diver, and any dangerous occurrences or irregularities.", "167. The 1978 Regulation also set specific requirements as regards the medical fitness and qualifications of divers, the safety of the divers ’ environment (temperature, humidity, noise and sanitary conditions and heating systems), and breathing mixture, amongst others. It further provided that the diving contractor was to have a liaison agreement with a medical doctor experienced in hyperbaric medicine and approved by the Directorate of Health. That doctor was to work out instructions and follow up the diving operations and the diving tables by assessment of reports with regard to medical matters referred to in the diving operations logbook, within a reasonable time and not later than six weeks after the dive, so that necessary improvements with respect to plant, equipment and procedures could be made. The above-mentioned assessments should always be available to the Petroleum Directorate.", "168. Article 3.4 (“Approval procedure”) of the Regulation provided:", "“No diving operation shall start before the Petroleum Directorate have approved the diving rules in accordance with Appendix 1 and details about the equipment which will be used during the operations.", "The above- mentioned documents shall be submitted to the Petroleum Directorate at least twenty-one days prior to commencement of the diving operations.”", "Article 3(k) of the Appendix listed “compression and decompression tables” among the elements defined as procedures during diving.", "Pursuant to Article 5.3 (“Accessibility to the diving rules”) of the Regulation, “[a]ny person engaged in or likely to be engaged in diving operations, shall have access to a copy of the diving rules or a document setting out the effect of the rules as far as they concern that person.”", "169. In 19 80 the Directorate issued a revised version of the 1978 Regulation introducing for instance diving licence requirements, new competency requirements, time limitations on the periods during which a diver could be kept in saturation, in water and in a diving bell, and stricter requirements for reporting accidents.", "170. The Government also submitted copies of Regulations of 1980 and 1984 on diving systems control, of four Royal Decrees of 28 June 1985, on safety supervision, internal control, internal control for ship owners and supervision of safety measures, which had been issued following the adoption of the Petroleum Activities Act 1985 ( petroleumsloven ). In addition they submitted a series of more recent regulations issued in 1990, 2001 and 2003, as well as several royal decrees and regulations from 2010. The Government drew attention to a legislative amendment of 8 March 1995 whereby the 1977 Working Environment Act was made fully applicable to offshore activities.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION", "171. The applicants complained that they had sustained damage to their health after working in diving operations in the North Sea and, as regards the second, third and fourth applicants, also following their participation in certain test dives. This had resulted from the failure of the Norwegian authorities to protect their rights under Articles 2 and 8 of the Convention which, in so far as is relevant, read:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ... ”", "Article 8", "“1. Everyone has the right to respect for his private ... life ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ..., for the protection of health ..., or for the protection of the rights and freedoms of others.”", "172. The Government contested that argument.", "A. Admissibility", "173. In their written pleadings to the Court the Government conceded that Mr Vilnes and Mr Muledal had exhausted domestic remedies but argued that, in the absence of any information to the contrary, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen had not. However, they refrained from pursuing the argument at the oral hearing before the Court.", "174. The Government also affirmed that they would not challenge the applicants ’ victim status within the meaning of Article 34 on account of the various amounts paid to them in compensation in acknowledgment of political and moral responsibility.", "175. On the other hand, the Government invited the Court to declare the complaints of all seven applicants inadmissible as incompatible ratione materiae with the provisions of the Convention, or in any event as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4.", "176. The applicants asked the Court to reject the Government ’ s invitation to declare their complaints inadmissible on substantive grounds.", "177. As regards the issue of exhaustion of domestic remedies, the third to seventh applicants pointed out that with the agreement of the Government the judicial proceedings concerning these applicants had been adjourned pending the outcome of, inter alia, Mr Vilnes and Mr Muledal ’ s case (see paragraphs 114 to 117 above). From the Supreme Court ’ s judgment of 8 October 2009 it was clear that the third to seventh applicants would have had no prospects of success if they had pursued their case before the domestic courts (see paragraphs 144 to 159 above).", "178. The Court, having regard to the parties ’ submissions, is satisfied that both the first and second applicants have exhausted domestic remedies as required by Article 35 § 1 of the Convention with respect to their complaints under Articles 2 and 8 of the Convention. Moreover, in view of the reasoning and outcome of the proceedings pursued by them and which ended in the Supreme Court ’ s judgment of 8 October 2009 (see paragraphs 143 to 159 above), the Court accepts that there were special circumstances which absolved the third to seventh applicants from their normal obligation to exhaust domestic remedies with respect to their complaints under the same provisions ( see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996 IV, and Van Oosterwijck v. Belgium, 6 November 1980, §§ 36 to 40, Series A no. 40 ). The Court further observes that the said complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. The applicants ’ complaints under Articles 2 and 8 must therefore be declared admissible.", "B. Merits", "1. The applicants ’ submissions", "179. The applicants complained generally, with reference to Article 2, that the respondent State had failed to take necessary measures to prevent the divers ’ lives from being put at risk that was avoidable; in particular, they had failed to ensure that a legal framework of safety regulations was in place to protect the divers, had automatically and widely granted exemptions from safety regulations, had failed to carry out adequate supervision in order to identify and take corrective measures in respect of defects endangering human lives, and had made it possible for the diving companies to use too - rapid decompression tables, despite the frequent occurrence of decompression sickness among divers. Adequate measures would have included the harmonising of decompression tables, the provision of on-the- spot medical assistance during diving operations, requirements for diving competence and other professional competence and technical expertise, the availability of real means of evacuation, proper maintenance of equipment, fewer dispensations being given and further legislative and licensing measures being taken. As early as the 1970s it ought to have been possible for the State to take such measures, many of which could have been taken without any additional funding and legislation being needed. The applicants prayed in aid the following judgments by the Court : L.C.B., cited above, §§ 36-41 and 46; Öneryıldız, cited above, § 71; Budayeva and Others, cited above, §§ 130 and 175; and Öçkan and Others v. Turkey ( no. 46771/99, §§ 40-50 and 57, 28 March 2006 ). The applicants emphasised that Article 2 covered the workplace ( see Pereira Henriques v. Luxembourg, no. 60255/00, §§ 59-63, 9 May 2006 ) and the State ’ s duty to take appropriate steps to safeguard citizens from being avoidably put at risk applied to all dangerous activities, in particular industrial risks ( see Budayeva, cited above, §§ 130 and 175).", "180. More specifically on the subject of decompression tables, the applicants submitted that, according to information provided by diving companies, decompression sickness had occurred at a rate of five per cent. It followed that a diver would contract the illness after every twentieth decompression. If on average four divers took part in every diving operation, decompression would occur every fifth operation. Accordingly, most divers would contract the illness in the course of their career.", "181. The State had been aware that the rapid decompression tables had been a central factor in competition between diving companies, a factor that the State could have eliminated even during the pioneer period by requiring, inter alia, the standardising of tables and/or the setting of conditions for the approval of individual diving operations. Decompression sickness had been practically eradicated in 1990 after the introduction, on the initiative of diving companies, of standard requirements for diving tables. All the companies had been positive about this. As a consequence, diving tables were no longer a competitive factor.", "182. The applicants argued that the State ought to have ensured that the diving tables used were among the most conservative ones, that the tables formed part of the basis for authorising diving operations, and that the choice of tables be eliminated as a competitive factor. It ought to have been possible for the State to impose transparency about and the harmonising of tables. Leaving this matter to the diving companies and/or the operators had been irresponsible, since these were in competition and the non-disclosure of rapid tables had increased their opportunity to obtain contracts.", "183. The respondent State had failed in its duty to provide information ( see Öneryıldız, cited above). It would not have been difficult for the State – in its capacity as a legislative and executive authority and as an authority granting authorisations – to require openness about tables and the harmonisation of tables. The applicants had not been sufficiently informed about the risk to which they had exposed themselves when accepting diving assignments in the North Sea.", "184. On the contrary, Mr Vilnes stressed, he had been informed that the dives had been authorised by the State, that decompression sickness would not lead to lasting disabilities (except for bone necrosis) and that such illness could be safely treated if done according to available tables. He had not been informed that by accepting diving assignments he risked permanent damage to his brain, bone marrow, nerves, and hearing, and extensive psychological damage after diving, even after using the tables. Mr Vilnes argued that he had never been given any insight into the tables. The principles of the tables had not only been recognised as confidential but had also been incomprehensible to those concerned.", "185. Similarly, the other six applicants complained that not only had the Norwegian authorities refrained from abolishing dangerous diving tables but also that, because of their confidentiality, the divers had not known whether or not they were agreeing to work with the use of dangerous diving tables when they agreed to work for a diving company.", "A further aspect of the matter had been that when diving sickness occurred, the divers had not benefitted from any medical advice on the spot, but critical treatment had been carried out “by colleagues, according to a table booklet which they had been given at the time.”", "186. The applicants submitted that, despite the frequent occurrence of decompression sickness among divers, the authorities had allowed the companies to keep decompression tables secret, whilst being aware that decompression speed was a competition factor between the diving companies, and that regard for divers ’ health thus ran counter to strong commercial interests. An illustration of this was the Petroleum Directorate ’ s letter of 21 June 1984 to the Diving Medical Advisory Committee in 1984 (see paragraph 84 above). There could be no doubt that the Norwegian authorities had been aware of the risks involved in North Sea diving operations. They had a duty to take appropriate, effective measures. To share the information with those at risk would often be the easiest accessible and most rudimentary measure to safeguard Convention rights laid down in Articles 2 and 8 of the Convention. According to the Court ’ s case-law, the respondent State had a duty to provide effective protection for the applicants, with a particular emphasis on the duty to provide information about the risks involved in diving operations and rapid tables.", "187. In North Sea diving operations the word was that diving was prudent and state- approved, which also followed from the statutory regulations. Without the objective facts about the disturbing differences between tables, and the high occurrence and consequences of decompression sickness related to the tables in use, divers had no opportunity to make a meaningful assessment of the risks involved in the operations. Therefore, the Norwegian authorities had a duty to provide divers with the information necessary to assess the real risk level, including the escalation of risk connected to table competition. The State should in the least have made the risks involved in the diving tables known to the applicants by requiring disclosure of the tables, by providing the divers with a risk assessment of the use of the tables on operations without doctors available for treatment, and by providing information about the conditions on which the authorities approved the tables - or rather the absence of any such conditions.", "188. Mr Vilnes had never consented to or acted in a way that could be taken to mean that he had consented to the use of rapid tables, nor had any of the other applicants given such consent. Their health had been adversely affected by the use of rapid decompression tables, as they had had immediate and prolonged symptoms of decompression sickness as well as long - term illnesses causing occupational disability. As the High Court had found, Mr Vilnes ’ brain and spinal cord damage had probably been caused wholly or in part by a combination of a too- rapid table and the absence of a medical doctor for treatment. The applicants submitted that their respective cases of brain, nerve, and lung damage had been caused by the tables in question, as had Mr Lindahl ’ s hearing impairment.", "189. The Government had provided no reasonable explanation to justify why for twenty-five years they had not obliged the diving companies to disclose their decompression tables or to comply with the most conservative tables and their own standard of due care. Notwithstanding the standard of due care applicable to diving procedures pursuant to Article 121 of the Royal Decree of 1967 (see paragraph 164 above), the Labour Inspection Authority had approved the procedures regardless of the diving tables, and in most cases without even having access to them (Lossius Report page 74).", "190. Had they been given access to all the diving tables, the applicants might have been able to compare the tables and to assess the risks themselves. They might have been alarmed by the great differences in decompression times and might have opted to work elsewhere. The disclosure of the tables ought to have been combined with a risk assessment by the authorities, in order to give the divers sufficient knowledge to assess the risks involved.", "191. Moreover, the disclosure of the tables would have generated public pressure on the diving companies, fear on their part of being unable to obtain contracts and to recruit divers, and might conceivably have compelled them to use the most conservative tables. Had the authorities in addition discontinued or improved their own practice of pre - approving tables regardless of whether they were safe, there would clearly have been a significant effect on the diving companies ’ use of rapid tables.", "192. The Norwegian Labour Inspection Authority ’ s letter to the University of Zurich of 16 April 1973 (see paragraph 83 [5] above) showed that even at the very beginning of the applicants ’ careers in the North Sea, the State considered that the disclosure of decompression tables would result in harmonisation of the decompression tables, focusing on the divers ’ health and lives, not only on the financial benefits of rapid decompression.", "193. Mr Vilnes in addition complained that four specific acts or omissions highlighted in his appeal to the Supreme Court (the prior authorisations of the diving operations from (i) Arctic Surveyor (ii) Tender Comet; (iii) the dispensation given from the requirement as to the maximum length of umbilical used and (iv) the failure to stop the Tender Comet diving operation ) constituted a failure on the part of the authorities of the respondent State to protect his right to life under Article 2 of the Convention.", "194. Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson added to their complaint certain grievances related to their experiences of test diving (see paragraphs 44, 50, 57, and 109 to 112 above). They alleged that the State should not have permitted such experiments on human beings for the sole purpose of boosting economic prosperity, but should rather have allocated resources to the development of technical means of solving the issue of maintenance of deep- water pipes. The test diving had endangered the lives of divers who had been unable to withdraw voluntarily, in violation of their right to protection of life and with reference to the Helsinki declaration.", "195. The State had been one of the owners of the NUI facilities until 1985, and had laid down the conditions for petroleum exploitation in the North Sea, obliging the oil companies to prove that it was possible to install and maintain pipes down to 400 metres, thus obliging test dives to take place. The State also had observers at the test site. Several medical experts had publicly expressed worries that health concerns had been pushed aside. On site, the authorities observed that dives were not aborted : even when divers lost consciousness or demanded an \"all stop\" there was no intervention. Although aware of the ongoing activities and the risks and damage to health involved, the State had not intervened to set any limits on test diving.", "196. In the NUTEC preparation of the Troll dive in 1985, down to 450 metres, and in which Mr Sigurdur P. Hafsteinsson had participated, the divers were informed that the relevant diving tables had previously been used during the Deep Ex dives, in which there had been no signs of decompression sickness. However, the divers who had participated in the Deep Ex dives had experienced serious signs of decompression sickness.", "197. The participant divers also received an Instruction for Training Programme for Onshore Manned Verification from their employer. The Instruction advised the test divers that doppler ultrasound technique would be used to monitor the presence or absence of gas emboli in the carotid artery. Moreover, they were informed that this procedure had been used previously on two deep dives at NUTEC with satisfactory results. However, when the same procedure was used during the Deep Ex I and II dives, it revealed that gas bubbles were entering the divers ’ heads during decompression but disturbingly never exited their heads. Those who were still alive were questioning the long- term effects of these cerebral bubbles. Whilst all the test divers who had taken part in the Deep Ex dives had been injured, the information given by the employers to the Troll test divers, namely that the procedure had been used previously with satisfactory results, was therefore misleading and not in compliance with the Helsinki declaration requirements of an informed consent.", "198. On several occasions the Ethical Committee had approved test dives which had already taken place, thereby revealing that the ethical control of the dive and the protection of the divers were illusory. For instance, the Comex test dive down to 350 metres had commenced before it was approved by the Ethical Committee. On 27 November 1980 the Ethical Committee had approved the Deep Ex I dive, which had in fact taken place from 4 to 23 November 1980, thus prior to the approval. Given the fact that NUI/NUTEC could carry out experimental diving without seeking the prior consent of the Ethical Committee, it was clear that the experimental dive would be approved under any circumstances. The State had in fact not documented a single incident where a dive had not been approved. The review of experimental diving by the Ethical Committee thereby gave the divers a false sense of protection against dangerous and unethical experimental activity.", "2. The Government ’ s submissions", "199. The Government invited the Court to rely on the assessment of facts made by the Supreme Court and, concurring with the reasoning of the latter (see paragraphs 146 to 160 above) requested the Court to find no violation of Articles 2 and 8 of the Convention in the present case.", "200. An important consideration was that the applicants had of their own volition and in return for considerable sums in remuneration entered into the activities in respect of which they now complained of having been victims of Convention violations.", "201. Article 2 was inapplicable since, as the Court held in Makaratzis v. Greece ( [GC], no. 50385/99, § 50, ECHR 2004 ‑ XI ), “it [was] only in exceptional circumstances that physical ill-treatment ... which [did] not result in death [might] disclose a violation of Article 2 of the Convention.” In the present case, the Government stressed, the applicants were alive; the fact that other divers operating in the North Sea in the same period as the applicants had died from a variety of causes should not influence the Court ’ s assessment of whether the applicants ’ rights under Article 2 had been breached.", "202. In any event, the Government were of the firm view that the respondent State had satisfied its duty to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the applicants ’ right to life and enjoyed a margin of appreciation in its choice of particular measures (see Budayeva and Others, cited above, § 134). Were the Court to find a violation in the instant case it would entail placing an impossible or disproportionate burden on the Norwegian authorities (see Budayava and Others, cited above, § 135). There were no examples in the Court ’ s case-law where occupational hazards and the element of voluntary participation in dangerous activities had played a significant role in the Court ’ s assessment of whether the positive obligations under Article 2 had been complied with.", "203. Nor were the matters complained of covered by the applicants ’ right to respect for “private life” within the meaning of Article 8. Whilst the applicants, relying on Roche ( cited above), claimed that Article 8 applied to the working environment, it should be noted however that in the aforementioned case the Court had found Article 8 applicable because it concerned a complaint about access to essential information which related to the particular source of risk at issue in that case ( ibid., § 155 ). The Court had taken a similar approach in McGinley and Egan v. the United Kingdom, 9 June 1998, §§ 96 and 97, Reports of Judgments and Decisions 1998 ‑ III ) where, stressing the particular circumstances at issue there, it had found Article 8 applicable because the applicants had experienced anxiety and uncertainty – feelings that impacted on their “private life” – as a combined result of their exposure to extremely hazardous and intangible dangers and their inability to procure essential information about the same dangers.", "204. In so far as the Government were aware, the Court had not applied Article 8 in cases regarding occupational risk where the State ’ s obligation to protect workers from injuries had been cited. They invited the Court to adopt the same approach as in Bykov v. Ukraine (no. 26675/07 (dec.) 16 April 2009 ), where it found the applicants ’ complaints under Article 8 inadmissible as incompatible ratione materiae in so far as they cited the right to respect for private life.", "205. The Government moreover asked the Court to reject the applicants ’ submission that the fact that during saturation diving they had remained in diving chambers had brought their right to respect for “home” into play.", "206. Further, on the specific issue whether the authorities of the respondent State had a duty to provide the applicants with information regarding the risks involved in diving operations, in particular those related to the use of rapid decompression tables, the Government argued as follows. The case under consideration differed significantly from previous cases concerning the existence of a duty on the part of the State to provide information. Whilst McGinley and Egan and Roche (both cited above), had concerned the duty to provide information after the occurrence of health hazards, the instant case concerned a claim that the information should have been provided to individuals prior to their agreeing to carry out the professional activities in question. A further distinguishing feature was that the State ’ s involvement in the relevant activities had been confined to being a regulator and supervisor on the Norwegian Continental Shelf. The divers had not been in the employment of the Norwegian Government but had been employed, or had engaged themselves, in private ventures. To establish a duty for the authorities to actively ensure that an occupational group, prior to undertaking its work tasks, be informed about factors that could be relevant for assessing the health risks potentially involved in their private enterprise, would be to stretch the extent of positive obligations under the Convention way too far. The existing standard on access to information enunciated in Roche (cited above, § 160), requiring the establishment of “an effective and accessible procedure” enabling the persons concerned “to seek all relevant and appropriate information” had clearly been complied with in the applicants ’ case.", "207. The authorities had indeed required the diving companies to impart information regarding their tables, and the latter had submitted information regarding diving procedures to the former. This arrangement had already been provided for in Article 121 of the 1967 Norwegian Diving Regulations, and had subsequently been confirmed in the 197 8 Temporary Diving Regulations.", "208. It was also a fact that the applicants, as individuals who had performed the dives according to the tables, had access to the tables used in their own dives. According to Article 5.3 of the 1978 Temporary Diving Regulations (see paragraph 168 above), the divers were obliged to “be familiar” with the operational procedures to be used. Moreover, since many divers were not permanently employed by just one company but were engaged by different companies for different operations, they had also had access to the tables used by their respective employers. The applicants undoubtedly had access to the various tables today. Also, information relating to the comparison of tables had been available in a report on that subject prepared by the Petroleum Directorate in 1991. Even when the dives had been undertaken the divers had been acquainted with the challenges posed by the use of rapid tables, as specifically stated in section 5.7.4 of the Lossius Report (see paragraph 83 above).", "209. More generally, by virtue of the Freedom of Information Act, whatever information was available to the authorities was in principle also accessible to the applicants. The fact that the companies regarded the tables as confidential business information might have prevented the applicants from gaining access. Whether that would have been the case could not be known, since the divers did not pursue such legal avenues.", "210. The basic requirements under the positive obligations doctrine were twofold, firstly that the authorities in fact knew or ought to have known the risks involved, and secondly that on the basis of such knowledge they failed to act reasonably in accordance with it. Relying on the Supreme Court ’ s reasoning as summarised in paragraph 147 (e) and (f) above, the Government maintained that the Norwegian authorities did not fail in this regard.", "211. As to what the authorities knew or ought to have known, the Government stressed that there was a broad-based opinion that diving did not have serious long-term effects if there was no decompression sickness. Decompression sickness in itself was not considered to be particularly dangerous. At the same time, it was established that the harmful mental effects of extreme life-threatening situations were known. This was essential information. The authorities did not deny that deep - sea diving could have adverse effects on the health of divers. However, there could only be certainty that those hazardous effects would occur in the event of extreme and life-threatening situations. The Norwegian authorities ’ responsibility must be measured against what was known at the time the applicants conducted their dives. In this respect, it ought to be recognised that awareness of possible health hazards related to deep dives had come gradually for all parties involved, in accordance with evolving experience, scientific development and new studies. This had been emphasised in the consensus statement from the 1993 Godøysund conference. The point that awareness had developed gradually for all parties concerned, had again been made in the report from the follow-up consensus conference in Bergen in 2005.", "212. As to what the Norwegian authorities in fact did in response to what was known at the time, it ought to be observed in the first place that they took active steps to ensure that the tables in use did not constitute health risks. This was for instance the case in 1984, when some diving companies had submitted new tables for saturation diving. The Petroleum Directorate had that year initiated a project which in 1986 resulted in what became the Hempleman Report.", "213. Moreover, as was shown in a table prepared by the Petroleum Directorate, from as early as 1980 there had been a dramatic reduction in the number of incidents of decompression sickness. This reduction indicated that the joint efforts of Norwegian authorities and the diving industry was already proving effective at that early stage.", "214. The concept of “ harmonising ” of tables ought not to be confused, as the applicants apparently did, with two other forms of effort undertaken by the authorities : on the one hand, their general work on collecting information and experience regarding tables to enable them to evaluate ( as exemplified by the Hempleman Report from 1986, see paragraphs 85 to 88 above) the tables disclosed by the companies, and, on the other hand, their effort to develop specific national tables in the early 1970s ( mentioned in section 5.7.4 of the Lossius Report, (see paragraph 83 above ).", "215. The Government further submitted that as early as 1990, when the work on harmonisation was initiated, there were “only small differences” between the companies ’ decompression tables, as evidenced by the Petroleum Directorate ’ s Report of 1991. Thus, the harmonising of tables, which was completed in 1991, was a supplement, or rather a complement, to what had already been accomplished with regard to divers ’ safety. Harmonisation was in itself not crucial for the reduction of decompression sickness.", "216. In this connection, it should be borne in mind that, to the Government ’ s knowledge, no other country has yet introduced standardised tables for saturation dives.", "217. Ever since operations on the Norwegian Continental Shelf began in the 1960s the Norwegian authorities had been active in reducing the risks involved in offshore diving. The extent to which they had been involved in North Sea activities through regulatory and supervisory measures had been demonstrated in detail before the Court. To this it could be added that, in order to find a scientific basis for decompression procedures and tables that would safeguard divers ’ health, they pushed research and development, allocating over time an estimated EUR 125 ,000,000 for these purposes (see section 4.2 of the Lossius Report and the Kromberg Report ).", "218. Finally, the Government pointed out that the applicants had not provided the Court with sufficiently precise details to enable the Court to ascertain that there was a link of causality between the alleged violations committed by the Norwegian authorities and their individual health problems. In particular, it would not be possible for the Court to hold, on the evidence of the present case, that it was in fact omissions on the part of Norwegian authorities which had prevented the divers from assessing the health risks involved in rapid tables that had been the cause of their health problems. In the absence of the requisite details submitted by the applicants, there might be a whole range of other possible reasons why the applicants ’ health had deteriorated.", "3. The Court ’ s assessment", "(a) Introduction", "219. The Court is unable to accept the Government ’ s argument, based on Makaratzis, that Article 2 was inapplicable. That case concerned, inter alia, the use of force by police officers in a hot-pursuit operation which had not in the event been lethal. Irrespective of whether the police had actually intended to kill him, the applicant was found to be the victim of conduct which by its very nature had put his life at risk, even though he survived. The Court found there that Article 2 was applicable and sees no reason for arriving at a different conclusion in the present case.", "220. In applying this provision to the instant case, the Court will have regard to the general principles stated in Öneryıldız and further elaborated in Budayeva and Others, both cited above, as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 157-161, 28 February 2012:", "“157. The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above ) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129 ).", "158. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90).", "159. Among these preventive measures particular emphasis should be placed on the public ’ s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89- 90, and Budayeva and Others, cited above, § 132 ).", "160. As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35).", "161. In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities ’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation (see Budayeva and Others, cited above, §§ 136-37).”", "221. The Court cannot but note that, apart from the seriousness of the applicants ’ allegations under the Convention, the present case is characterised by a high degree of complexity and the presence of a number of imponderable factors. Not only are the facts complained of extensive and dating far back in time, the grievances alleged by the applicants also concern a wide range of alleged failures by the authorities of the respondent State to protect them against occupational injuries raising issues of a highly technical nature.", "222. The Supreme Court pointed out that diving was a risky activity and that this ought to be the starting point for the assessment. Nonetheless, the Supreme Court continued, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep sea dives could lead to neurological injuries had emerged gradually. Even when the Lossius Commission had produced its report at the end of 2002, it concluded that well controlled research on later and delayed effects was missing ( NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them. (see paragraph 145 above). The Supreme Court also stated that since under the applicable regulations it had been the task of the authorities to consider whether the diving could be carried out in a safe manner, they had been actively involved in the matter and had been in a position to prevent a given diving operation from taking place (see paragraph 147 (b) above). At the same time, regard ought to be had to the knowledge possessed at the material time – an assessment of liability ought not to be based on hindsight – and the fact that, as already mentioned, diving was in itself a risky activity, especially deep - sea diving related to the development of oilfields (see paragraph 147 (c) above).", "223. The Court will take the above-mentioned considerations as a starting point for its own examination of the case under the Convention. Unlike the national courts, who examined the matter from the angle of national compensation law ( see the summary of the Supreme Court judgment at paragraph 146 ), it sees no need to consider in detail the degree of involvement of the respondent State in the hazardous activity in question, since the Convention obligation applies to “any activity, whether public or not” (see Kolyadenko and Others, cited above, § 158).", "( b ) As regards the applicants ’ general grievances", "224. Having regard to the careful and thorough review carried out by the national courts at three levels of jurisdiction, notably in their examination of the questions of liability under domestic compensation law, the Court would be cautious about substituting its own assessment of the facts for theirs (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, § § 29 and 30, Series A no. 269); it sees no reason to call into doubt the following assessments made by the Supreme Court and also the High Court (the latter especially on some points not admitted for review by the Supreme Court) :", "(i) That the regulatory framework in place at the relevant time showed that the authorities had sought to protect divers ’ safety responsibly and to actively improve the protection of their safety (see paragraph 147 (d) above);", "(ii) That the publicly funded supervision had not been organised in an irresponsible manner (see paragraph 147 ( f ) above);", "(iii) That the authorities had in the main been aware of the North Sea divers ’ working conditions and demands for improvements but, because of deficient reporting, had probably not had a complete picture of accidents and other undesirable occurrences (see paragraph 147 ( g ) above);", "(iv) As regards the knowledge possessed at the time of the effects, including long-term ones, of diving, and of the psychological effects of extreme and life- threatening situations (see paragraphs 147 ( h )-( i ) above);", "(v) That the administrative dispensation practices regarding the applicable saturation time and length of the umbilical, and the relatively strict rules combined with a lenient attitude to the issue of dispensations had been based on a balancing of interests, hence the view that such practices would lead to better control than under more liberal rules (see paragraph 147 (j ) above);", "(vi) That, as regards the applicants ’ general criticism of the inspections, those carried out by the Labour Inspection Authority had been fewer in number than those by the Petroleum Directorate, which could mainly be explained by the resources at their disposal (see paragraph 147 ( m ) above);", "(vii) That there was no information to the effect that a lack of professional qualifications on the part of other divers had created situations that had endangered Mr Vilnes and Mr Muledal (see paragraph 147 ( n ) above);", "(viii) That the rules imposed on the diving companies contained detailed safety requirements regarding diving equipment, that there was little information about episodes concerning the appellants and that no blameworthy passivity on the part of the authorities had been documented (see paragraphs 147 ( o ) above).", "( ix ) That the issue of hyperbaric evacuation (re. case of Mr Muledal) had been addressed in the 1978 Regulations, and that no passivity on the part of the Labour Inspection Authority or the Petroleum Directorate had been shown, nor could it be assumed that the problem had had any consequences for the appellants (see paragraph 147 ( p ) above).", "( c ) As regards grievances related to test diving", "225. The Court also notes that, after a detailed assessment of, inter alia, Mr Muledal ’ s complaints regarding the test diving, the Supreme Court found no basis for holding the Labour Inspection Authority liable on account of negligence in respect of its authorisation and supervision thereof (see paragraphs 149 and 150 above) nor did it find the authorities responsible for any breach of Articles 3 or 8 of the Convention (see paragraph 160 above). The divers had been informed about the test dives beforehand, the test dives had been approved by the competent bodies after a thorough examination according to relevant medical and ethical norms and guidelines and in the light of information available at the relevant time. There was no support for holding that the delayed injuries sustained by Mr Muledal were attributable to these test dives. The Court finds no grounds to arrive at a different conclusion. Nor does it find any grounds to regard differently the complaints made by Mr Lindahl and Mr Sigurdur P. Hafsteinsson in respect of the test dives in which they had participated (see paragraph 109 above). The suggestion that the Deep Ex I dive had been implemented before approval by the ethics committee is not borne out by the documents presented to the Court, from which it appears that the recommendation of approval pre-dated rather than post-dated the beginning of the dive (see paragraph 109 above, item (e) ).", "226. The Court is equally not persuaded by their argument that the experiences in the Deep Ex I and II dives had been presented as trouble- free to those who had later participated in the Troll dive ( see paragraph 110 above) or that the authorities were responsible for any misleading information being given about those experiences by the employers to the divers on the latter occasion.", "227. In the Court ’ s view, it was in the nature of things that test dives, whether they were experimental diving or verification diving (see paragraph 107 above), involved certain risks which made it difficult to compare that kind of activity with North Sea diving operations generally.", "( d ) Other incidents complained of", "228. As regards Mr Vilnes ’ complaints about what he described as the authorities ’ four acts or failures to act in relation to certain incidents at Arctic Surveyor in 1977 and at Tender Comet in 1983 (in respect of which he was denied leave to appeal by the Supreme Court) (see paragraph 143 above), the Court observes that his submissions that on the former occasion he had been exposed to serious decompression sickness owing to excessively rapid decompressions were quite specific and reasonably clear, as was his allegation regarding decompression tables used on the latter occasion. The Court will return to these matters below.", "229. On the other hand, most or all of Mr Vilnes ’ remaining submissions concerning other incidents at the Arctic Surveyor in 1977 were too vague as to what he considered had caused them and, in particular, to what extent they had been imputable to any of the specific shortcomings for which he criticised the State, to enable the Court to pronounce any view on the matter. This was the case, for instance, in respect of his account of the umbilical being pinned under a cement block; his being pulled by the umbilical as the vessel moved in a drift; the gas cut; and the vessel being damaged in a hurricane while he was undergoing saturation (see paragraphs 24 and 25 above). Nor is it clear to what extent Mr Vilnes had been personally affected by the various other deficiencies at the Tender Comet which he criticised in a general way (see paragraphs 31 to 37 above) and which the High Court noted (see paragraph 140 above) had been upheld. However, when viewed from the angle of the State ’ s positive obligations under Articles 2 and 8 of the Convention, the Court considers that Mr Vilnes ’ grievances under these headings are unfounded.", "( e ) Partial conclusion", "230. Thus far, the Court sees no reason for disagreeing with the findings of the national High Court and the Supreme Court in respect of Mr Vilnes and Mr Muledal (see paragraphs 129 to 140 and 146 to 160 above), which it finds equally valid for those five applicants who were awaiting the outcome of those proceedings.", "231. What is more, when considering the regulatory framework referred to above, it ought to be relevant that it was possible under national law to establish liability to pay compensation, that Mr Vilnes and Mr Muledal had the merits of their compensation claims heard by the City Court, the High Court and the Supreme Court, and that this opportunity was also available to the remaining five applicants. Furthermore, regardless of the national law on compensation, the respondent State and Statoil had set up special compensation schemes under which divers were eligible to apply for substantial amounts of compensation, which all seven applicants did successfully (see paragraphs 17 to 19 above).", "232. Having regard to all of the above considerations, the Court finds it established that the authorities of the respondent State went to some lengths in their efforts to secure the protection of the divers ’ safety and health by taking a wide range of measures, and that in so doing they acted in a manner that was consistent with their positive obligations not only under Article 2 but also Article 8 of the Convention.", "( f ) As regards the issue of information on decompression tables", "233. It remains, however, that the Court is less convinced that, as argued by the Government, the respondent State bore no responsibility for the fact that diving companies continued to use rapid decompression tables for as long as they did. It observes that the High Court found that Mr Vilnes ’ decompression sickness in 1977 had most likely been caused by the facts that the diving company had used too rapid a decompression table and there was no medical doctor who could assist him. This incident had probably been a strong contributory cause of his brain and spinal injuries (see paragraph 139 above). Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nesdal and Mr Jakobsen all submitted specialist medical statements indicating that they had suffered from various forms of bends (see paragraphs 39, 40, 43, 48, 51, 65 And 71 above). Mr Nygård, whose grievances mainly focussed on accidents and near ‑ accidents, as did the relevant medical expert statement, also described experiences of decompression sickness when seeking compensation at the national level (see paragraph 62 above), and the Court accepts his account. All seven applicants furnished evidence of disability, including medical evidence and the grant of disability pensions (see paragraphs 41, 46, 51, 53, 57, 62, 68, 70, 75 above). The Court, having regard to the parties ’ arguments in the light of the material submitted, finds a strong likelihood that the applicants ’ health had significantly deteriorated as a result of decompression sickness, amongst other factors. This state of affairs had presumably been caused by the use of too- rapid decompression tables. In this regard it cannot but note that, as observed by the Supreme Court, standardised tables had not been achieved until 1990, following a project financed by the Petroleum Directorate, and that decompression sickness had since then become an extremely rare occurrence. Thus, with hindsight at least, it seems probable that had the authorities intervened to forestall the use of rapid decompression tables earlier, they would have succeeded in removing more rapidly what appears to have been a major cause of excessive risk to the applicants ’ safety and health in the present case.", "234. A preliminary question is whether it would be appropriate to review such an omission under Article 2 of the Convention. From the findings stated in paragraphs 224 to 230 above it follows that the applicants were not personally exposed to life-threatening experiences as a result of any shortcomings on the part of the respondent State. Since the core problem relates to the long-term effects on human health of the use of excessively rapid tables, not to sudden changes in pressure that could have lethal effects, it would seem more appropriate to deal with the matter from the angle of the State ’ s positive obligations under Article 8 of the Convention.", "235. In this regard, the Court reiterates that since Guerra and Others, cited above, § § 57-60; developing López Ostra, cited above, § 55; see moreover McGinley and Egan, cited above, § § 98-104; and Roche, cited above, §§ 157-69 ), the Court has affirmed a positive obligation for States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives. In the Court ’ s view, this obligation may in certain circumstances also encompass a duty to provide such information, as can be inferred from the concluding paragraph 60 (concerning Article 8) in Guerra and Others, (cited above) and the affirmation of the “public ’ s right to information” with reference to the latter in the context of Article 2 (see Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132 ). It does not follow from the foregoing that this right ought to be confined, as suggested by the Government, to information concerning risks that have already materialised. In relation to Article 2 the Court has held that “among [the] preventive measures [to be taken] particular emphasis should be placed on the public ’ s right to information” (emphasis added here) (see Kolyadenko and Others, cited above, § 159, quoted at paragraph 220 above), and the position in relation to Article 8 can hardly be different. Nor does it follow that the right in question should not apply to occupational risks, another argument advanced by the Government which is not supported by the decision they cited (see paragraph 204 above).", "236. In applying the above principles to the present case, the Court considers that the decompression tables used in diving operations may suitably be viewed as carriers of information which is essential in enabling the divers to assess the health risks involved, in the sense that diving carried out in accordance with the tables would be assumed to be relatively safe, whilst diving which did not respect minimum decompression standards would be deemed unsafe, a perception likely to be reinforced by diving operations being subject to prior administrative authorisation. Thus, the question arises whether, in view of the practices related to the use of rapid decompression tables, the divers received the essential information needed to be able to assess the risk to their health (see Guerra and Others, cited above, §§ 57 to 60, Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132 ) and whether they had given informed consent to the taking of such risks. This question, it is noted in passing, was among a very broad range of other issues raised in substance before the national courts, albeit without featuring at the centre of the national pleadings, unlike in the Convention proceedings.", "237. The Court is not persuaded, as suggested by the Government, that by virtue of Article 121 of the 1967 Diving Regulation the authorities had already required the diving companies to provide information about the diving tables to be used, and that the companies had complied. As observed by the Supreme Court (while making reference to pp. 74-76 (section 5.7.4) of the Lossius Report), “the Labour Inspection Authority did not have access to tables for saturation diving and in late 1972 took the initiative to develop their own Norwegian tables” (see paragraph 147 (h) above). Moreover, in section 5.7.4 of the said report it was stated that “the Norwegian authorities gradually gained access to decompression tables for saturation diving [emphasis added]” (see paragraph 83 [14] above). The High Court noted that under certain provisions of the 1978 Regulation (Article 3.4 (1) in conjunction with Article 3(k) of its Appendix), the Petroleum Directorate could demand the production of the diving table used in a given diving operation (see paragraphs 128 and 168 above). The High Court commented in response to this that whether it was safe to use a table should have formed part of the basis for authorising a diving operation, and that it did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them (see paragraph 128 above).", "238. It rather appears therefore that neither the Labour Inspection Authority nor the Petroleum Directorate required the diving companies to produce the diving tables in order to assess their safety before granting them authorisation to carry out individual diving operations. It seems that the diving companies were left with little accountability vis-à-vis the authorities, and were allowed to deal with the tables as their business secrets and thus enjoyed for a considerable period a wide latitude in opting for decompression tables that offered competitive advantages serving their own business interests. According to the Lossius Report ( section 5.7.4), regard for divers ’ health thus ran counter to strong commercial interests, and this issue was well known to the oil companies, the diving companies, divers themselves, diving doctors and the Norwegian authorities (see paragraphs 83 above). The relevant supervisory authorities were aware that the diving companies kept the tables confidential for competitive reasons (see paragraphs 111 to 112 of the Supreme Court judgment quoted at paragraph 147 ( k ) above).", "239. In this connection the Court agrees with the view of the High Court, endorsed by the Supreme Court, that the assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question (see paragraphs 129 to 130 and 147 (c) above). As regards the effects of diving, the Supreme Court reiterated that it had been known that sudden changes in pressure could have a great impact on the body (and, as pointed out by the High Court, those effects could in the worst cases be life-threatening) but there had been less knowledge about the long-term effects. At a consensus conference in Stavanger in 1983, American, British and French specialists in diving medicine had held that diving in accordance with the regulations had been safe. Others, including Norwegian researchers, had not been convinced of this (see paragraph 147 ( f ) above). At the consensus conference held ten years later at Godøysund the position was largely the same, with a leaning towards the possibility that diving under these conditions might have neurological and psychiatric after-effects. In 2002 the Lossius Commission had concluded that there was no clear evidence that could answer the question ( ibid. ). The Supreme Court noted that on the evidence the High Court had found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk- free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but one which had to be accepted. It had been treated with recompression and this treatment had been regarded as final ( NOU 2003 :5, p. 76) ( ibid. ). The Court sees no reason to call this assessment into doubt. In similar vein, it appreciates that scientific research into the matter not only required considerable investment but was also very complex and time ‑ consuming (see paragraphs 85 to 88 above).", "240. At the same time, the Court finds it equally unquestionable that the prevailing view was also that decompression tables contained information that was essential for the assessment of risk to personal health involved in a given diving operation. That this was the raison d ’ etre of such tables was well illustrated, for example, by the letter of 10 July 1969 from the University of Newcastle -upon- Tyne to the Norwegian Labour Inspection Authority (see paragraph 81 above) and by the letter of 21 June 1984 from the Petroleum Directorate to the Diving Medical Advisory Committee (see paragraph 84 above).", "241. In the last- mentioned document it was stated that the Petroleum Directorate had recently gone through most of the diving tables available and at that time used in the North Sea, and had found “the difference between the slowest and the fastest table disturbing. The difference in decompression time from 1, 000 feet [was] close to a week when comparing the fastest and the slowest table. In fact, the fastest table ... considered [was] faster than the Duke Emergency Decompression profile from saturation dive. This Duke table [was] in other companies used as the dive profile for aborted dives in serious emergencies. ... The ... Directorate [was] concerned about these differences and problems as they [were] considered to relate directly to the health and safety of divers ” (see paragraph 84 above).", "242. However, it does not appear that the authorities took any measures with a view to bringing to the attention of the applicants, or to other divers like them, information enabling them to appreciate whether a table used in a diving operation was comparatively fast or whether it was conservative. As already mentioned above, a considerable period elapsed without the authorities requiring the diving companies to assume full openness about the tables. Nor does it seem that the authorities informed the applicants and other divers of their concerns about the differences between tables and the problems this posed with regard to divers ’ health and safety.", "243. The Court has taken note of the Government ’ s argument that a diver would normally be acquainted with the table he would use in carrying out a diving operation for a given company, and might also be in a position to compare tables when working for other companies. However, whilst it cannot be excluded that some comparative information regarding decompression tables could have reached the applicants in this way, this would only have been at random and could hardly be regarded as sufficient for the purpose of enlightening them about the risks and to enable them to give an informed consent to the taking of such risks.", "244. Having regard to all of the above-mentioned considerations, in particular the authorities ’ role in authorising diving operations and in protecting the safety of such operations as well as the lack of scientific consensus at the time regarding the long- term effects of decompression sickness and the uncertainty about these matters which existed at the time (see paragraph 147 ( h ) above), in order to minimise the possibility of damage a very cautious approach was called for (see paragraph 85 above). In the Court ’ s view it would therefore have been reasonable for the authorities to take the precaution of ensuring that the companies observe full transparency about the diving tables used and that the applicants, and other divers like them, receive information on the differences between tables, as well as on their concerns for the divers ’ safety and health, which constituted essential information that they needed to be able to assess the risk to their health and to give informed consent to the risks involved. This the authorities could have done when, for example, granting authorisation of diving operations and upon inspections. Had they done so they might conceivably have helped to eliminate sooner the use of rapid tables as a means for companies to promote their own commercial interests, potentially adding to the risks to divers ’ health and safety. By failing to do so the respondent State did not fulfil its obligation to secure the applicants ’ right to respect for their private life, in violation of Article 8 of the Convention. There has accordingly been a violation of this provision.", "( g ) Recapitulation", "245. In sum, the Court concludes that there has been a violation of Article 8 of the Convention on account of the failure of the respondent State to ensure that the applicants received essential information regarding decompression tables enabling them to assess the risks to their health and safety. Having reached this conclusion, the Court considers that no separate issue arises under Article 2 and sees no need for it to consider whether there has also been a violation of the latter in this respect.", "II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "246. The first to fourth applicants complained of a violation of Article 3 of the Convention, which in so far as is relevant provides:", "“ No one shall be subjected ... to inhuman or degrading treatment .... ”", "247. The Government contested that argument.", "A. Admissibility", "248. Referring to its reasoning at paragraph 178 above, the Court does not find this complaint inadmissible on the ground of failure to exhaust domestic remedies under Article 35 § 1. It further finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. Accordingly, the first to fourth applicants ’ complaints under Article 3 must therefore be declared admissible.", "B. Merits", "1. The applicants ’ submissions", "249. Mr Vilnes maintained that in violation of Article 3 of the Convention the State had failed to protect him against inhuman and degrading treatment. He had been exposed to life-threatening risks, considerable pain resulting from decompression in accordance with tables “approved” by the State, continuously to noises, gases, internal humidity levels in decompression chambers reaching 90-100%, and pollution from oil and slag. He had not been offered adequate medical treatment after serious spinal decompression sickness and had been exposed to such stress levels that he had been diagnosed as suffering from PTSD (see paragraphs 39 to 41 above). In this connection the applicant referred to the various alternative measures the State could have taken to protect him, mentioned above in relation to his Article 2 complaint.", "250. Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson complained that by failing to prevent the test diving in which they had participated from taking place (see paragraphs 109 to 112 above) and/or also by failing to establish an effective supervisory mechanism and/or stop the test diving when the divers had demanded withdrawal, the State had violated their right to protection against inhuman treatment under Article 3 of the Convention. They had not been adequately informed about the experiments and its consequences of the test diving, nor had this been carried out in accordance with their prior consent.", "2. The Government ’ s submissions", "251. The Government endorsed the Supreme Court ’ s findings (see paragraphs 159 and 160 above) that there had been no violation of Article 3 of the Convention. They did not deny that the applicants had suffered as a result of their diving, and that they had consequently found or were still finding themselves in unfortunate circumstances. They might also feel that they had been treated unfairly and unjustly by the Norwegian authorities in that they had not succeeded domestically with their Convention complaints. However, their situation could not sensibly be viewed as inhuman or degrading treatment as understood in the Court ’ s case-law. Whilst any “suffering or humiliation involved must ... go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment ( see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI ), the applicants had engaged in diving activities voluntarily and their employment ought to be regarded as “legitimate” for the purposes of the Court ’ s assessment.", "252. In the event that Article 3 were to come into play, the Government were of the firm opinion that Norwegian authorities had established “a framework of law” that “provides adequate protection”, and, further, that the authorities did take “reasonable steps to avoid a risk of ill-treatment” ( see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III ) having regard to what the authorities knew and ought to have known.", "3. The Court ’ s assessment", "253. As far as Mr Vilnes ’ complaint is concerned, the Court refers to its findings above under Article 8 that the respondent State ’ s shortcomings were confined to a failure to provide access to information regarding risks involved in the use of rapid decompression tables (see paragraphs 244 and 245 above). In the light of the nature of this omission and the limited extent to which there was knowledge about the long-term effects of decompression sickness (see paragraph 239 above), the Court does not find that the respondent State can be held liable for inhuman and degrading treatment in respect of Mr Vilnes in breach of Article 3.", "254. As regards the complaint under Article 3 of Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson, the Court notes that they relate to the same facts (concerning test diving) as those considered above in the context of Articles 2 and 8 above (see paragraphs 225 to 227 ) and, referring to its reasoning and conclusion above, it finds no violation of Article 3 in their case.", "255. Accordingly, there has been no violation of Article 3 of the Convention.", "III. MISCELLANEOUS ALLEGATIONS BY MR VILNES OF VIOLATIONS", "256. Mr Vilnes further alleged a breach of Article 14 of the Convention, arguing that as a diver he had not enjoyed the protection of the safety rules under the Employment Environment Act, unlike workers performing the same type of jobs onshore. This omission had put his life in danger. He also cited the procedural limb of Article 2, complaining that a police investigation, which had been hindered by the Petroleum Directorate, had not been completed. Later in the proceedings he also cited Articles 6, 11 and 13, arguing that the joinder in the national proceedings of his case to that of others, including Mr Muledal, had resulted in his being compelled to associate with them, being denied a fair hearing, and that no effective remedy had been available to him in this regard.", "257. In respect of the Article 14 complaint, the Government disputed that Mr Vilnes had been subjected to any differential treatment or that any such could not be regarded as objectively justified (legitimate aim, proportionality ) bearing in mind the respondent State ’ s margin of appreciation. His situation had been too loosely identified for it to be encompassed by the Court ’ s approach to the term “other status” ( see Clift v. the United Kingdom, no. 7205/07, § § 56-59, 13 July 2010 ). The Government offered no comment on the complaints under Articles 6, 11 and 13.", "258. The Court, agreeing with the findings of the Supreme Court (see paragraph 161 above), observes that Mr Vilnes ’ Article 14 complaint is not sufficiently substantiated to warrant an examination on the merits and should therefore be rejected as being manifestly ill-founded.", "259. As regards Mr Vilnes ’ procedural complaint under Article 2, it does not appear that he raised this either expressly or in substance before the Supreme Court, for which reason he failed to exhaust domestic remedies. His complaints under Articles 6 and 13 were raised in substance only in his comments of 29 January 2012 to the Government ’ s observations, more than six months after the impugned joinder and the final national decision in his case.", "260. It therefore follows that these complaints are inadmissible under Article 35 §§ 1 and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "261. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "(a) The applicants ’ claims", "262. The applicants claimed the following sums in respect of pecuniary damage:", "1) Mr Vilnes: 30, 278, 358 Norwegian kroner (NOK) (approximately 3,984,000 euros (EUR) );", "2) Mr Muledal: NOK 9,048,599 (approximately EUR 1,191,000);", "3) Mr Lindahl: NOK 7, 848,430 (approximately EUR 1,033,000);", "4) Mr Sigurdur P. Hafsteinsson: NOK 9,018,538 (approximately 1,187,000 EUR );", "5) Mr Nygård : NOK 8,792,178 (approximately EUR 1,157,000);", "6) Mr Nesdal : NOK 7,409,777 (approximately EUR 975,000);", "7) Mr Jakobsen : NOK 10,241,492 (approximately EUR 1,348,000).", "263. Mr Vilnes ’ s claim represented his loss of earnings per year, with interest, for twenty-eight years, up to the retirement age of 67 ( using his income of NOK 265,500 for 1978 as a starting point and increasing the annual figure in accordance with nominal wage growth ). This was a hypothetical income based on his probable natural career without the injuries. He agreed that deduction should be made of the NOK 3,613,657 (approximately EUR 476,000) he had received under the various special compensation schemes (see paragraph 41 above).", "264. Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen explained that the above-mentioned amounts had been calculated on the basis of deduction being made of the amounts that they had received in compensation under the said compensation schemes, except that the NOK 200,000 received in ex-gratia compensation ought not be taken into account (see paragraph 47, 52, 58, 63, 69, and 76 above). As a result of diving in the North Sea they had sustained injuries and health damages. Some had been able to do other work for some years until their health problems had manifested themselves in an occupational disability, while others had never worked again. However, all of them had suffered major loss of income compared to what they would have earned had they stayed healthy and continued diving in the North-Sea until the age of 55. Thereafter they would have continued in other petroleum - related occupations, such as for example as diving supervisor or superintendent, a common career path, until the regular retirement age of 67. Any benefits provided by the State, such as sickness and disability benefits, had been deducted from their claims. In addition they claimed interests.", "(b) The Government ’ s submissions", "265. The Government pointed out that the general tenor of the applicants ’ view was that they had sustained injuries and damage to their health as a result of diving in the North Sea. That was not the same, however, as demonstrating to the Court ’ s satisfaction that their health issues were the result of a violation of the Convention.", "266. The Government maintained that the applicants had not furnished the Court with requisite evidence that there was indeed a causal link between the financial loss for which compensation was now being sought and the alleged breaches by the Norwegian authorities. Their health problems might be the result of their diving activities carried out on the Norwegian Shelf not involving rapid tables, or of activities as divers outside the jurisdiction of the Norwegian authorities, or they could be the result of the applicants ’ taking risks which Norwegian authorities could not sensibly have been able to forestall.", "267. On this basis the Government asked the Court to reject the applicants ’ pecuniary damage claims.", "268. In any event, the sums received by the applicants in ex gratia compensation from the Norwegian authorities and from Statoil ought to be deducted if the Court made an award under Article 41, and the sums claimed were excessive.", "(c) The Court ’ s assessment", "269. The Court reiterates that the well - established principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he or she would have enjoyed had the violation of the Convention not occurred ( see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002 ‑ IV, and Muñoz Díaz v. Spain, no. 49151/07, § 85, ECHR 2009 ). Furthermore, the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999-II, and Muñoz Díaz, cited above ).", "270. However, bearing in mind its findings above, regarding notably the prevailing perceptions and lack of precise knowledge at the material time about the possible long- term effects of decompression sickness, the Court is not able to speculate on what the applicants ’ position would have been had the violation found of Article 8 of the Convention not occurred. The evidence before it does not show a sufficient causal link between the respondent State ’ s failings as described in paragraph 244 above and the applicants ’ losses in past and future earnings. In any event, even assuming that parts of the losses claimed are attributable to decompression sickness, the state of the evidence is not such as would enable the Court to make an equitable award under the Convention that exceeds the amounts that they have already received under the various national compensation schemes and which would have to be deducted from any such award. It therefore rejects the applicants ’ claims under this heading.", "2. Non-pecuniary damage", "(a) The applicants ’ claims", "271. In respect of non-pecuniary damage Mr Vilnes claimed NOK 5,000,000 (approximately EUR 658,000) and the other six applicants each claimed NOK 64,000 (approximately EUR 8,400), the latter referring to Roche (cited above, § 179 ) where the Court had awarded EUR 8,000 in comparable circumstances. The applicants maintained that they had suffered feelings of frustration, uncertainty and anxiety.", "(b) The Government ’ s submissions", "272. The Government asked the Court to reject the applicants ’ claim for compensation for non-pecuniary damage. The latter had not furnished the Court with any documentary evidence that they had suffered feelings of frustration, uncertainty and anxiety as a result of any breach of the Convention by the Norwegian authorities. The amount claimed by Mr Vilnes, in particular, was clearly excessive. In any event, having regard to the amounts already granted to the applicants by way of compensation under the special compensation schemes, a finding of violation by the Court would constitute adequate just satisfaction for the purposes of Article 41.", "(c) The Court ’ s assessment", "273. The Court considers that the applicants must all have experienced psychological problems on account of anguish and distress as a result of the violation found of the Convention and that this finding will not suffice as “just satisfaction” for the purposes of Article 41. The Court notes that an amount of NOK 200,000 (approximately EUR 26,000 ) had already been granted to each of the applicants in ex gratia compensation for non ‑ pecuniary damage by Parliament or the Special Compensation Board (see paragraphs 42, 47, 52, 58, 63, 69, and 76 above). Deciding on an equitable basis, it awards each applicant EUR 8,000 under this heading, plus any tax that may be chargeable on that amount.", "B. Costs and expenses", "274. Mr Vilnes claimed reimbursement of legal costs and expenses totalling NOK 664,128 (approximately EUR 87,000 ), in respect of the following items:", "(a) NOK 526,190 for his lawyers ’ work in the proceedings before the Court (mostly at the rate of NOK 1,300 per hour);", "( b ) NOK 131,547 for value- added tax (“VAT”) in respect of the above;", "(c) NOK 6,391 for expenses incurred for travel and accommodation in connection with the oral hearing before the Court;", "275. The remaining six applicants sought reimbursement of legal costs and expenses totalling NOK 1,280,868 (approximately EUR 169,000 ) in respect of the following items (all inclusive of VAT) :", "(d) NOK 815,816 for the lawyers ’ work (538 hours) before the Court until 4 October 2010;", "(e) NOK 120,000 for their remaining work thereafter, of sixty-five hours before the Court;", "(f) NOK 345,052 incurred by the Offshore Divers ’ Union before the national courts.", "276. The Government argued that the applicants ’ claims for reimbursement for legal costs were considerable and excessive, not least having regard to the fact that the very same claims of Convention breaches had been made before domestic courts, including the Supreme Court, and also to the fact that the individual plaintiffs in the domestic proceedings had been granted free legal aid. The amounts now sought before the Court were neither reasonable nor necessarily incurred.", "277. The Court reiterates that, according to its case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "278. In the present case, regard being had to the documents in its possession and the above criteria, the Court first notes that only part of the costs was necessarily incurred in order to obtain redress for the matter found to constitute a violation of the Convention.", "279. Accordingly, as regards Mr Vilnes ’ claim, the Court considers that items (a) and (b) should only be reimbursed in part, whilst item (c) should be refunded in its entirety. Making an assessment on an equitable basis, the Court awards him EUR 40,000, plus any tax that may be chargeable on that amount.", "280. Likewise, as regards the other six applicants, items (d) and (e) should be reimbursed only in part. The Court rejects item (f) since it does not concern a party to these proceedings nor costs that appear to have been actually and necessarily incurred by the applicants in order to obtain redress for the violation before the domestic courts. Making an assessment on an equitable basis, the Court awards the other six applicants jointly EUR 50,000 in respect of items (d) and (e), plus any tax that may be chargeable on that amount", "C. Default interest", "281. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicants ’ names, dates of birth and places of residence may be found in the Annex.", "A. Background to the case", "6. From the 1950s/60s to early 2000, the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 were full - time employees at the Malta Drydocks Corporation (the MDC), a state-owned enterprise (1968-2003). The applicants in application no. 62338/11 are the wife and children of Mr Attard, who also worked at Malta Drydocks during the same period ( having started in 1959) but left in 1974 to take up managerial duties with the Malta Trade Fair Corporation, where he was no longer exposed to asbestos.", "7. According to the applicants, the applicants in applications nos. 60908 /11, 62110/11, 62129/11 and 62312 /11 and Mr Attard had been constantly and intensively exposed to asbestos during their employment. Asbestos in its various forms was one of the substances kept in stock in Malta Drydocks ’ storerooms and ships incorporating asbestos as part of their structure regularly entered the docks (or ship repair yard) and were repaired there by workers. Repairs included breaking apart the asbestos casing that was used for insulation purposes, thereby releasing the particles into the surrounding air. Once a machine was repaired, it had to be reinsulated using asbestos retrieved from the store -rooms. Such repairs were carried out both on the ships themselves and in the MDC ’ s workshops.", "8. The applicants contended that asbestos particles would settle on the workers ’ clothing and be carried around in this way, with the result that it could also affect the lives of their family members, creating further anguish and affecting their private and family life.", "9. In the 1960s, Malta became a member of the International Labour Organisation (“ILO”) ( see “ Relevant domestic law and international standards ” below ) and of the World Health Organisation (“WHO”), both organisations having been raising awareness regarding the dangers of asbestos since the 1950s. At the time, however, the employees of MDC had been neither informed about nor protected from the dangers of asbestos in any way. The Government disagreed with the applicants ’ assertion that international organisations had raised awareness of the dangers of asbestos in the 1960s, noting that the ILO Asbestos Convention had been concluded in 1986 and that the WHO had issued its guidelines much later than the 1960s.", "10. The first publicly available – though not publicly disseminated – information concerning the fatal consequences of asbestos at MDC appears to be the judicial acts and judgment relating to a lawsuit brought in the names of Mary Pellicano proprio et nomine vs Francis Spiteri nomine, concerning the deceased Paul Pellicano (erroneously referred to by the parties as Joseph Pellicano ) who died from asbestosis in 1979. In that case, in a judgment of 30 August 1989, the then Commercial Court established MDC ’ s responsibility for the death of Paul Pellicano and awarded (in a separate decision of 27 June 1990) damages under Maltese law consisting of lucrum cessans and damnum emergens (see also “ Relevant domestic law ” below ).", "11. No action was taken following that judgment save that employees were assured that adequate ventilation and the wearing of fabric masks would protect them from asbestos.", "12. Mr Attard died in 2006, aged sixty-one, as a result of a malignant cancer linked to exposure to asbestos (mesothelioma). Following the death of a number of their colleagues, the applicants in applications nos. 60908/ 11, 62110/11, 62129/11 and 62312 /11 underwent medical tests, which were performed again in 2012 in the context of proceedings before the Court. With the exception of the case of Mr Dyer, most of the X -rays revealed bilateral pleural plaques ( extensive in some cases) compatible with asbestos exposure. The X -rays of some of the applicants also revealed pleural thickening, reticulo -nodular interstitial parenchymal texture in the lungs, and in some cases also pulmonary fibrosis, all of which are consistent with asbestosis. The results suggested that there was a strong probability of the presence of asbestos fibres in their stomach lining, as well as in other digestive organs. Moreover, apart from the physical difficulties such as exercise intolerance that were mainly related to respiratory problems, the presence of asbestos in their bodies made them prone to malignant mesothelioma, as was the case with Mr Attard, abovementioned. From the medical data it was also apparent that the applicants had no pleural effusions and that their lungs were clear, with no filtrates or nodules, and their hearts, hila and upper mediastina were also normal. Most of the applicants are non ‑ smokers.", "13. In particular, Mr John Mary Abela has been confined to bed for years as a result of his acute respiratory problems and can only breathe via oxygen cylinders that further reduce his mobility. Mr Dyer ’ s medical results did not show evidence of asbestos - related disease.", "B. Constitutional redress proceedings", "1. The applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11", "14. On 7 May 2009 these applicants instituted separate constitutional redress proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention in that the State had failed to protect them from unnecessary risks to their health, which also constituted inhuman treatment and an interference with their private and family life. They asked the court to quantify a fair amount of compensation for the breach of the aforementioned rights, to liquidate that amount, and to order that this pecuniary redress be paid individually to the applicants (“ Tikwantifika kumpens xieraq bħala rimedju għal ksur tad- drittijiet fuq indikati jew mil- liema minnhom, tillikwida dan l- ammont, u tordna li dan ir-rimedju pekunjarju jithallas individwalment lir-rikorenti ”).", "15. In reply to the Government ’ s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings the applicants in question maintained that under Maltese law the ordinary civil remedies available did not apply to non-pecuniary damage (known in the domestic system as “ moral damage ” ), but solely to pecuniary damage; they claimed that these types of damage were independent of each other.", "16. In four separate but almost identical judgments of 30 November 2010 the first-instance constitutional jurisdiction – namely, the Civil Court (First Hall) in its constitutional jurisdiction – declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii thereby in effect dismissing the applications on the grounds of non-exhaustion of ordinary domestic remedies. That court held that the applicants should have instituted a civil action for damages arising out of tort or contractual liability. It considered that according to the Court ’ s case-law, namely Zavoloka v. Latvia (no. 58447/00, § 40, 7 July 2009), there was no general or absolute obligation on States to pay compensation for non-pecuniary damage in such cases.", "17. By four judgments of 11 April 2011 the Constitutional Court upheld the first-instance decisions. It considered that the Government, as an employer, could be sued under civil law for their failings. It held in effect that the fact that such failings were also of a constitutional nature did not in itself mean that they could not be pursued through ordinary civil proceedings. It also held that a person could not allow the time within which to bring an ordinary civil action to expire and then resort to constitutional proceedings as a remedy in extremis. The court considered that constitutional redress proceedings could be instituted only after the applicants had instituted civil proceedings and if, after a final judgment, they still felt that the breaches of their rights had not been adequately redressed. It held that given that neither the Convention nor national law provided for compensation for non-pecuniary damage in such cases, the ordinary remedy would have been effective. In any event, according to the court, in their constitutional application, the applicants made no specific mention of non-pecuniary or moral damage, having claimed compensation for pecuniary damage only.", "2. The applicants in application no. 62388/11", "18. On 19 April 2010 these applicants, who are the heirs of the deceased Mr Attard, also instituted proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention.", "19. In reply to the Government ’ s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings, the applicants submitted that under Maltese law the ordinary civil remedies available did not provide for non-pecuniary damage but only for pecuniary damage; they claimed that these types of damage were independent of each other.", "20. By a judgment of 30 September 2010 the Civil Court (First Hall) in its constitutional jurisdiction declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii, thereby in effect dismissing the claims of the applicants on the grounds of non-exhaustion of ordinary remedies. In its analysis of the principles governing the exercise of the above-mentioned powers under the Constitution and the European Convention Act, the court noted, inter alia, that the failure to pursue ordinary remedies by an applicant was not in itself a sufficient reason for a court of constitutional jurisdiction to decline to exercise its powers if it could be shown that the ordinary means could not provide a complete remedy. It also held that the decision to decline or otherwise to exercise such powers was to be exercised with prudence, so that where it appears that there is a serious violation of fundamental human rights or even where there is likely to be the violation of such rights, then the court should lean towards exercising its powers. Nevertheless, it considered that what the applicants were ultimately requesting was a sum of money by way of damages. Given that ordinary remedies under the Civil Code could have resulted in an award of monetary compensation, the applicants should have pursued those remedies before instituting constitutional redress proceedings.", "21. In a judgment of 11 April 2011 the Constitutional Court upheld the first-instance decision for substantially the same reason indicated in paragraph 17 above." ]

[ "II. RELEVANT DOMESTIC LAW AND INTERNATIONAL STANDARDS", "A. Domestic law and practice relating to civil and constitutional remedies", "1. Civil remedies", "22. The relevant provisions of the Civil Code, Chapter 16 of the Laws of Malta, in respect of actions for damages, read:", "Article 1031", "“Every person, however, shall be liable for the damage which occurs through his fault.”", "Article 1032", "“(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.", "(2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.”", "Article 1033", "“Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”", "Article 1045", "“(1) The damage which is to be made good by the person responsible in accordance with the foregoing provisions shall consist in the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused.", "(2) The sum to be awarded in respect of such incapacity shall be assessed by the court, having regard to the circumstances of the case, and, particularly, to the nature and degree of incapacity caused, and to the condition of the injured party.”", "Article 1046", "“Where in consequence of the act giving rise to damages death ensues, the court may, in addition to any actual loss and expenses incurred, award to the heirs of the deceased person damages, as in the case of permanent total incapacity, in accordance with the provisions of the last preceding article.”", "2. Constitutional remedies", "23. Article 46 of the Constitution of Malta, in so far as relevant, reads:", "“ (1) ... any person who alleges that any of the provisions of articles 33 to 45 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.", "(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of the said articles 33 to 45 (inclusive) to the protection of which the person concerned is entitled:", "Provided that the Court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.", "(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court. ”", "24. Similarly, Article 4 of the European Convention Act, Chapter 319 of the laws of Malta, provides:", "“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.", "(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of subarticle (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:", "Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this subarticle in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.", "(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”", "25. Maltese case-law relating to the examination of a case by the constitutional jurisdictions was summarised in the case of Dr Mario Vella vs Joseph Bannister nomine, Constitutional Court judgment of 7 March 1994. These guiding principles were reiterated in several other judgments including Mourad Mabrouk vs the Minister for Justice and Home Affairs and the Principal Immigration Officer, judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 4 February 2009. The relevant guiding principles read as follows:", "“a. As a general principle, when it is clear that there are available ordinary remedies enabling an applicant to obtain redress for the damage complained of, such ordinary remedies must be undertaken and constitutional proceedings should be instituted only after such ordinary remedies are exhausted or if they were not available.", "b. Unless there are grave and serious reasons related to unlawfulness, justice or manifest error, the Constitutional Court will not disturb the exercise of discretion made by the first-instance court, as conferred on it by Article 46 (2) of the Constitution.", "c. Each case has its own particular circumstances.", "d. The fact that an applicant has failed to pursue an available remedy does not mean that the court [of constitutional jurisdiction ] must decline to exercise its jurisdiction if that possible remedy could redress the applicant ’ s complaint only in part.", "e. Where an applicant has failed to exhaust an ordinary remedy, if the interference of another person has contributed to this non exhaustion, then it would not be desirable for the court [ with constitutional jurisdiction ] to refrain from hearing the case.", "f. When the first-instance court exercises its discretion and refuses to take cognisance of a case without having examined the relevant subject matter in respect of which that discretion had to be exercised, the court of second instance should put aside that discretion.”", "26. In the judgment of the Constitutional Court in the names Philip Spiteri vs Sammy Meilaq nomine of 8 March 1995 it was further held that:", "“When the object of the action is complex - and concerns issues which have a remedy under some other law, and other issues that can only be redressed by the Constitutional Court – the latter action should prevail.”", "The same was reiterated in the more recent judgment of the Civil Court (First Hall) in its constitutional jurisdiction of 5 June 2014 - still subject to appeal - in the name of Judge Carmelo Sive Lino Farrugia Sacco vs The Honourable Prime Minister, the Attorney General and the Commission for the Administration of Justice. In that same judgment the court also held that:", "“ From an accurate examination of the proviso [to Article 46 (2) of the Constitution], it does not result that the legislator intended to establish as an absolute principle of Maltese constitutional law that before an individual seeks redress before the constitutional jurisdictions, he or she must always, peremptorily, exhaust all the available ordinary remedies, including those which are not reasonably expected to be effective and accessible.”", "B. Domestic law and case-law relating to asbestos", "1. Legislation", "27. The Dock Safety Regulations ( Subsidiary Legislation 424.03 ), were enacted in 1953 and amended in 1965, 1966, 1977, 1991, 1999 and 2009. The regulations make no mention of asbestos or occupational hazards caused by carcinogenic substances and agents.", "28. The Work Places (Health, Safety and Welfare) Regulations ( Subsidiary Legislation 424.09 ) entered into force on 9 February 1987. Part III concerns the prevention and control of occupational diseases and reads as follows:", "Regulation 16", "“(1) No person may import or sell any chemical or material which is toxic, and no employer may use or suffer to be used any such chemical or material in any work place under his charge, without in either case the approval of the Superintendent [of Public Health].", "(2) In granting such approval as referred to in sub regulation (1), the Superintendent may impose any conditions as he may deem fit in the interest of public health.”", "Regulation 17", "“(1) It shall be the duty of the employer in so far as is reasonably practicable or possible, or when so directed by the Sanitary Authority, to substitute a harmful substance, process or technique at a place of work by a less harmful substance, process or technique.”", "(2) Without prejudice to the generality of subregulation (1), the following rules shall apply:", "(a) sandstone grinding wheels shall be substituted by carbonrundum grinding wheels;", "(b) benzene, unless authorised by the Superintendent, shall be substituted by a less toxic solvent;", "(c) paints, varnishes, mastics, glues, adhesives and inks shall not contain benzene;", "(d) white lead and sulphate of lead and products containing these pigments or other lead compounds shall not be used in the internal paintings of buildings or of articles in buildings, if the dry film of the resulting paint will contain more than 2500 parts per one million parts of metallic lead;", "(e) white or yellow phosphorus shall not be used in the manufacture of matches;", "(f) sand in sand-blasting shall be substituted by steel-shot or grit;", "(g) polychlorinated biphenyls shall not be used or added to any oil, fluid or material.”", "Regulation 18", "“(1) It shall be the duty of the employer to make arrangements when so considered necessary by the Sanitary Authority and to the satisfaction of the said Authority, so that the atmosphere of work-rooms in which potentially dangerous or obnoxious substances are manufactured, handled or used, is tested periodically.", "(2) Such tests are to be carried out at sufficiently frequent intervals to ensure that toxic or irritating dusts, fumes, gases, fibres, mists or vapours are not present in quantities which, in the opinion of the Sanitary Authority, are liable to injure health, and to ensure that an atmosphere which is fit for respiration is maintained.", "(3) Work in, or entry into any place where there is reason to suspect that the atmosphere is toxic, poisonous, asphyxiating or otherwise dangerous to health, shall not be carried out until the atmosphere is suitably tested and found free from any danger to health.", "(4) The employer shall likewise ensure periodical testing of the working environment where a potential hazard exists for heat, noise and other physical agents.", "(5) All tests referred to in this regulation shall be conducted by trained personnel and, where possible, supervised by qualified personnel who possess experience in occupational health or hygiene.”", "Regulation 19", "“(1) It shall be the duty of the employer to ensure that provisions are made for the storage under safe conditions of substances dangerous to health.", "(2) Without prejudice to the generality of this regulation such provisions should include the use of receptacles adequate to the storage of the dangerous substance, the safe storage of receptacles, their proper labelling with a danger symbol, their proper handling and where necessary an indication of the nature of the risk, the name of the substance or an indication to identify it and, as far as practicable, the essential instructions giving details of the first aid that should be administered if the substance should cause bodily harm or injury.", "(3) Where any risk from gases exists, cylinders containing such gases should be stored in well ventilated places as far as possible from the place of work.”", "Regulation 20", "“It shall be the duty of the employer to inform forthwith the Superintendent of the occurrence in any of his employees of any occupational disease or incidence as are required to be notified by a medical practitioner under the Health Care Professions Act.”", "29. The same regulations provided for notification of accidents connected to the place of work, and in so far as relevant the relevant provisions read as follows:", "Regulation 22", "“ (1) For the purposes of these regulations any accident arising out of or in connection with work which results either -", "(a ) in the death of or a major injury to any person;", "...", "shall be a notifiable accident and as such shall be reported to the Director [of Labour ].", "(2) ( a ) Where the notifiable accident results in the death or a major injury to a person, the employer shall -", "( i ) notify forthwith the Director or his representative by the quickest practicable means; and", "(ii) within seven days from the date of the accident send written notice of the accident to the Director; and", "(b) where the notifiable accident falls under subregulation (1)(b), the employer shall inform the Director in writing or by other suitable means, within seven days from the date of the accident.", "Regulations 23", "“ There shall be kept in every work place or in such place outside the work place as may be approved by the Director and Superintendent a register, called the general register, and there shall be entered in or attached to that register:", "(a) the prescribed particulars as to every case of industrial accident and industrial disease occurring at the work place of which notice is required to be sent to the Director and the Superintendent;”", "Regulation 24", "“ The general register and every other register or record kept in pursuance of these regulations shall be preserved and shall be kept available for inspection by any officer for two years after the date of the last entry in the register or record. ”", "30. These regulations also provided for their enforcement and for penalties in the event that they were not complied with.", "31. Further emphasis was placed on the duties of employers in the Factories (Health Safety and Welfare) Regulations 1986 which entered into force in 1987 and eventually became part of the General Provisions for Health and Safety at Work Places Regulations, which were amended in 1996, 2002 and 2003. Article 49 of the 1986 text, in its most relevant part read as follows:", "“ (1) Saving any other provisions of these regulations every employer shall take all practicable steps to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.", "(2) Every employer shall take all practicable steps to ascertain the hazards, if any, connected with a trade process or substance.”", "32. In 1994, a prohibition on the importation of asbestos fibres came into effect by means of subsidiary legislation (S.L. 3 7.11) to the Customs Ordinance.", "33. On 28 June 2002 the Prevention and Reduction of Environmental Pollution by Asbestos Regulations (S.L 504.30, subsidiary legislation to the Environment and Developing Planning Act ) came into force, containing in substance the provisions of the Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental pollution by asbestos.", "34. Finally, Legal Notices 122 and 123 of 2003 enacted, respectively, the Protection of Workers from the Risks related to Exposure to Carcinogens or Mutagens at Work Regulations and the Protection of Workers from the Risks related to Exposure to Asbestos at Work Regulations which, like the regulations mentioned in paragraph 31 above, constitute subsidiary legislation under the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta.", "2. Case - law", "35. In the case Mary Pellicano proprio et nomine vs Francis Spiteri nomine, Commercial Court judgments of 30 August 1989 and 27 June 1990 (see paragraph 10 above), the court established the responsibility of Malta Drydocks for the death of Paul Pellicano and awarded damages consisting of lucrum cessans and damnum emergens as provided by Maltese law. It found that the applicant had worked at the dock yard for decades until his death as a result of asbestosis. The applicant had been employed at the time when blue asbestos was still used at the ship repair yard and where the only precautionary measure taken was the use of masks, which in any case were considered of inadequate quality by the court-appointed experts. The court shared the conclusions of the experts who took the view that certain precautions had been implemented but they did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time. More specifically, the use of dangerous asbestos had remained the norm, the ventilation system was old and inadequate, the masks were inefficient, and other shortcomings had been apparent.", "36. In Godfrey Buhagiar vs Malta Shipbuilding Company Limited ( another state-owned enterprise which in 2003 merged with the MDC to become Malta Shipyards Ltd. ), judgment of the First Hall (Civil Court) of 11 October 2001, it was held that the fact that an employee had consented to work in a dangerous environment did not imply acceptance of responsibility for any harm which he might suffer. Therefore, if an employee continues to work despite the fact that the employer has failed to provide a safe working environment, the employer cannot plead the employee ’ s consent as a defence.", "C. International standards", "37. Malta became a member of the International Labour Organisation (“ILO”) on 4 January 1965 and of the World Health Organisation (“WHO”) on 1 February 1965.", "38. According to the WHO website, all forms of asbestos are carcinogenic to humans and may cause mesothelioma and cancers of the lung, larynx and ovary. Asbestos exposure is also responsible for other diseases, such as asbestosis (fibrosis of the lungs), pleural plaques, thickening and effusions. According to the most recent WHO estimates, more than 107, 000 people die each year from asbestos-related lung cancer, mesothelioma and asbestosis resulting from exposure at work.", "39. In 1974 the General Conference of the International Labour Organisation adopted the Occupational Cancer Recommendation ( 1974 - R147 ), concerning the prevention and control of occupational hazards caused by carcinogenic substances and agents, and in 1986 it adopted the Asbestos Recommendation, R172, concerning safety in the use of asbestos.", "40. The ensuing conventions, namely the ILO Convention concerning Safety in the Use of Asbestos (C 162 - the 1986 Asbestos Convention) and the ILO Convention concerning Prevention and Control of Occupational Hazards caused by Carcinogenic Substances and Agents (C 139 - Occupational Cancer Convention, 1974), have not been ratified by Malta.", "41. Most European Union (“EU”) Directives on the matter such as the EU Directive on the protection of workers from the risks related to exposure to asbestos at work (83/477/EEC, amended in March 2003), became applicable to Malta only when it joined the EU in 2004 (see also paragraph 33 above).", "D. Other relevant legislation", "42. The relevant provisions of the Department of Health (Constitution) Ordinance) Chapter 94 of the Laws of Malta, as at the time of the present case (and prior to its repeal in 2013) read as follows:", "“4. The Head of the Department of Health shall be the Chief Government Medical Officer who shall also be ex officio Superintendent of Public Health.", "16. The Chief Government Medical Officer shall be the chief adviser to the Government on any matter relating to the public health or relating to or in connection with the health services.", "17. (1) It shall be the duty of the Principal Medical Officers to assist the Chief Government Medical Officer and the Minister in planning, direction, development and administration of the health services", "(2) The Principal Medical Officers shall moreover –", "(a) deal with international health matters and relative commitments;", "(b) propose and formulate any such legislative measures as may be necessary in relation to health services.”", "THE LAW", "I. JOINDER OF THE APPLICATIONS", "43. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.", "II. THE GOVERNMENT ’ S OBJECTION OF NON-EXHAUSTION OF DOMESTIC REMEDIES", "A. The parties ’ submissions", "1. The Government", "44. The Government submitted that the applicants had not exhausted domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8 of the Convention, concerning the Government ’ s failure to protect the applicants rights ’ under those provisions. They had failed to institute an ordinary civil action, opting instead to attempt constitutional redress proceedings at the conclusion of which their claims had been dismissed for non-exhaustion of ordinary remedies. The Government noted that in their application the applicants had themselves cited the Pellicano case – which had been successful at the ordinary level – and the compensation award granted in that case by the Commercial Court.", "45. The Government further relied on Aytekin v. Turkey (23 September 1998, § 84, Reports of Judgments and Decisions 1998 ‑ VII) in which, having taken into account the combination of the criminal, civil and administrative law remedies available, and in particular the prospects offered by the criminal proceedings for obtaining redress in respect of the death of the applicant ’ s husband, the Court had not exempted the applicant in that case from the requirement to exhaust such remedies. The Government also made reference to the case of John Sammut and Visa Investments Limited v. Malta (( dec. ), no. 27023/03, 28 June 2005), in which the Court had held that an action in tort could have resulted in an award of civil damages and that the aggregate of remedies could have redressed the applicants ’ second grievance.", "46. Referring to Articles 1030-1033 of the Civil Code concerning an action in tort, the Government submitted that, like any other person, they could, through their representatives, be held liable for damages. Indeed the State had on numerous occasions been held liable for the payment of damages by the domestic courts (various examples were submitted to the Court). The Government referred in particular to the case of Carmena Fenech et vs Chairmen of the Malta Drydocks noe et (Court of Appeal, 3 December 2010), which concerned asbestos exposure and where the Government had been ordered to pay approximately EUR 103,000 in damages.", "47. The Government conceded that – like any employer – they were obliged to provide a safe working environment and noted that they had been sued at various times for allegedly failing to provide such an environment. They cited Francis Busuttil vs Sammy Meilaq nomine (First Hall, Civil Court, 9 December 2002) and Gatt vs Chairman Malta Drydocks (sic.) (First Hall, Civil Court, 9 December 2002), in which the courts had found Malta Drydocks liable for damages because it had failed to provide a safe working environment and had been negligent in the maintenance of tools, thereby causing an accident that had resulted in the claimants ’ permanent disability. Similarly, in a comparable case, the State - owned airline, Air Malta, had been held liable for damages. Indeed, domestic courts had found the Government liable for damages when the governmental act complained of constituted a breach of duty which was classified either as a negligent act or as a failure to carry out duties properly. Moreover, in Godfrey Buhagiar vs Malta Shipbuilding Company Limited (11 October 2011) the domestic courts had held that the fact that an employee consented to work in a dangerous environment did not mean that the employee accepted responsibility for any harm which he might suffer, with the result that the employer could therefore not raise the plea that the employee accepted such working conditions.", "48. As to the applicants ’ claim that compensation for non-pecuniary damage could not be awarded in an ordinary action, referring to Zavoloka v. Latvia ( cited above ) the Government noted that in that case the Court had found that there was no absolute obligation to award such damages in circumstances such as those in that case. Moreover, while it was true that the law did not provide for compensation for non-pecuniary damage, known as “moral damage” in the domestic context (except for a few specific circumstances), and that such damages were not awarded in actions for tort, the way compensation was calculated allowed for the inclusion of non ‑ pecuniary damage, although this was not mentioned. One such example was awarding loss of future earnings, based on a loss of opportunities, which in the Government ’ s view was a veiled type of “moral damage”, that is to say, non-pecuniary damage as understood in the Convention case-law. Moreover, the Government considered that civil law did not prohibit such damage and cited two examples ( Dr J Pace noe vs The Prime Minister, Civil Court (First Hall), 1 June 2012, and Mario Gerada vs The Prime Minister, Civil Court (First Hall), 14 November 2012) in which the applicants had been awarded compensation for “moral damage” in cases involving breach of contract and unfair dismissal respectively.", "2. The applicants", "49. The applicants contended that an ordinary civil action against the Government as employer for material damage would not have been capable of addressing the multiple issues arising from the breaches of Articles 2, 3 and 8. Accepting that the Government could, like private individuals, be found liable in a tort action, the applicants submitted that an ordinary action of that nature could not have established the State ’ s responsibility in line with Convention standards reflected in the Constitution. It followed that their complaints could therefore only be raised before the courts with constitutional jurisdiction as established by Article 46 of the Constitution (see “ Relevant domestic law ” above).", "50. Moreover, they noted that according to domestic case-law, in instances where the merits of a case were complex and had aspects which fell under both ordinary and constitutional law, the constitutional action was to prevail ( Anthony Mifsud vs Superintendent Carmelo Bonello et, Constitutional Court, 18 September 2009).", "51. The applicants noted that they were seeking damages arising from death and grievous bodily harm which were not the result of normal torts such as a traffic accidents but which were a result of the Government ’ s failure to fulfil their positive obligations under the Convention, namely to safeguard a person ’ s life, to investigate properly any death or harm for which the State was responsible, to provide information about any risk to life or health, and to identify the persons responsible for the violation. It followed that they were also entitled to compensation for non-pecuniary damage.", "52. An ordinary civil action in tort could only provide for compensation for pecuniary damage, namely damnum emergens and lucrum cessans, the expressly limited heads of damage provided for by Maltese law. In fact, compensation for non-pecuniary damage was not provided for in law, as shown by decades of case-law where judges had repeatedly held that no compensation for non-pecuniary damage could be awarded. Moreover, proposals had recently been made in Parliament to make provision for compensation for non-pecuniary damage in certain cases – proposals which would be pointless if the Government ’ s contention that such damage were not precluded were true. Moreover, an occasional lapse by a good-hearted judge extending the scope of pecuniary damage could hardly be considered the right way of dealing with human rights violations. In the applicants ’ view the only available remedy was constitutional redress proceedings, which they had unsuccessfully instituted.", "53. Furthermore, the ineffectiveness of such an ordinary remedy was evident in so far as the law (Article 1032 of the Civil Code) provided that no one was to be found liable in the absence of any express legal provision. Indeed, ordinary law did not provide for actions dealing with activities that breached Article 8 of the Convention – a provision which the applicants had also relied on and which, moreover, did not correspond to any constitutionally protected right in Malta.", "54. The applicants argued that the Constitutional Court had dismissed their claims on the grounds of failure to use a remedy that was ineffective. It had, moreover, found that only if the applicants still felt that the breaches of their rights had not been redressed by that remedy could they opt for constitutional redress proceedings. The applicants contended that, although part of their claim could have been addressed by the ordinary courts, the courts with constitutional jurisdiction were not precluded from addressing the case to its full extent. They submitted that in Carmena Fenech vs Chairman of the Malta Drydocks, (cited above) one of the cases relied on by the Government, the claimant ( who was the widow of a dry - docks employee who had succumbed to malignant mesothelioma ) had been awarded out - of - pocket damages and compensation for loss of future earnings in respect of her husband. Thus, if she had wished to claim any compensation for non-pecuniary damage, she would still have had to lodge another claim with the courts with constitutional jurisdiction. It followed that the applicants had rightly brought their claim before the only court that could have found that there had been a breach of their human rights and awarded the compensation for non-pecuniary damage sought.", "B. The Court ’ s assessment", "1. General principles", "55. The Court reiterates that the rule on exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body until they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. It thus represents an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI, and Handyside v the United Kingdom, 7 December 1976, § 48, Series A no. 24).", "56. The only remedies which Article 35 § 1 requires to be exhausted are those which relate to the alleged breach and which are available and sufficient (see McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010), that is to say a remedy that offers the chance of redressing the alleged breach and is not a pure repetition of a remedy already exhausted (see Dreiblats v. Latvia ( dec. ), no. 8283/07, 4 June 2013). There is no requirement to use another remedy which has essentially the same objective (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999). However, noting the strong affinity between Article 35 § 1 and Article 13, the Court has ruled that if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Čonka v. Belgium, no. 51564/99, § 75, ECHR 2002 ‑ I; Kudła, cited above, § 157; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001-V; and Rotaru v. Romania [GC], no. 28341/95 § 69, ECHR 2000 ‑ V).", "57. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicants ’ complaints, and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 94, 10 January 2012).", "58. The Court emphasises that the application of the rule must, however, make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule on exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot v. France, 19 March 1991, § 34, Series A no. 200). It has further recognised that the rule on exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed, it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A no. 40). This means – amongst other things – that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-68, Reports 1996 ‑ IV).", "59. According to the Court ’ s case-law, in the event of a breach of Articles 2 and 3, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, § 130, ECHR 2001-III; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 97-98, ECHR 2002-II and Ciorap v. Moldova (no. 2), no. 7481/06, §§ 24-25, 20 July 2010 ). The principle applies also where the violation arises from the alleged failure by the authorities to protect persons from the acts of others ( see Z and Others, cited above, § 109; and Kontrová v. Slovakia, no. 7510/04, §§ 63-65, 31 May 2007 ).", "60. In appropriate cases, also when the violation relates solely to Article 8, the Court may still consider under Article 13 that, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see T.P. and K.M. v. the United Kingdom [GC], cited above, § 107 ).", "2. Application to the present case", "61. The Government appear to raise this objection on the basis of three arguments : firstly that the Convention did not provide for a right to compensation for non-pecuniary damage and that therefore an ordinary action in tort would have sufficed, but the applicants failed to pursue it; secondly, even assuming that there was a right to compensation for non ‑ pecuniary damage, the applicants could still have had a chance of obtaining it – subject to the good will of the judge – in ordinary tort proceedings, which the applicants did not institute; and thirdly, they appear to invoke the effectiveness of an aggregate of remedies, which the Court understands as comprising an ordinary action in tort which could have awarded compensation for pecuniary damage plus a subsequent constitutional redress action which could have awarded compensation for non-pecuniary damage.", "62. As transpires from the general principles and the case-law of the Court already cited, in the circumstances of the present case concerning, inter alia, complaints under Articles 2 and 3, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress accessible to the applicants. The same must be held in respect of the complaint under Article 8 which in this specific case is closely connected to the said provisions.", "63. As to the ordinary civil proceedings in the form of an action in tort, the Court has no doubts about the possibility of bringing such an action against the Government and about the prospects of success of such an action as also transpires from the case-law submitted. Nevertheless, the Court notes that an action in tort which is perfectly capable of awarding material/pecuniary damage does not in general provide for an award of non ‑ pecuniary damage (“moral damage” as understood in the Maltese context). While it is true that the Government submitted two recent examples of such damages being awarded, they were unable to identify a legal provision for awards of such non-pecuniary damage. Moreover, against a background of decades during which the domestic courts have consistently interpreted Article 1045 of the Civil Code (see paragraph 22 above) as excluding non ‑ pecuniary damage, and in the light of the fact that one of these two judgments (delivered by the same judge) has been appealed against by the Government and is still pending before the Court of Appeal, an ordinary civil claim for damages in tort cannot be considered to be a sufficiently certain remedy for the purposes of providing any non-pecuniary damage which may be due for such breaches (see, mutatis mutandis, Aden Ahmed v. Malta, no. 55352/12, § 59, 23 July 2013). The Court further notes that loss of opportunity, to which the Government referred, is a type of pecuniary, and not non-pecuniary, damage. Lastly, it does not appear that the ordinary court in such an action would have had the competence or authority to give any other form of redress relevant to their complaints.", "64. In so far as the Government pleaded that there existed an aggregate of remedies which the applicants did not exhaust, it is true that the Court has sometimes found under certain conditions that an aggregate of remedies sufficed for the purposes of Article 13 in conjunction with Articles 2 and 3 ( see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 338, ECHR 2011 (extracts) ). This concept generally refers to a number of remedies which can be taken up one after the other or in parallel and which cater for different aspects of redress, such as a civil remedy providing for compensation and a criminal action for the purposes of satisfying the procedural aspect of Articles 2 and 3 ( ibid. , § 337). The Court has also encountered the notion or system of applying for different heads of damages through different procedures and found no particular problem with such a system (see Dreiblats, cited above), both being available options.", "65. Turning to the present case, the Court acknowledges that an action in tort could appropriately address the issue of pecuniary damage (see paragraphs 22 and 6 3 above). The Court also considers that the remedy provided by the courts exercising constitutional jurisdiction provides a forum guaranteeing due process of law and effective participation for the aggrieved individual. In such proceedings, courts exercising constitutional jurisdiction can take cognisance of the merits of the complaint, make findings of fact and order redress that is tailored to the nature and gravity of the violation. These courts can also make an award of compensation for non ‑ pecuniary damage and there is no limit as to the amount which can be awarded to an applicant for such a violation (see, mutatis mutandis, Gera de Petri Testaferrata Bonici Ghaxaq v. Malta, no. 26771/07, § 69, 5 April 2011, in relation to Article 1 of Protocol No. 1, and Zarb v. Malta, no. 16631/04, § 51, 4 July 2006, in relation to Article 6). The ensuing judicial decision will be binding on the defaulting authority and enforceable against it. The Court is therefore satisfied that the existing legal framework renders the constitutional remedy capable, in theory at least, of affording, inter alia, appropriate compensatory redress concerning both pecuniary and non-pecuniary damage.", "66. The domestic system thus offers one legal avenue which would have provided solely for pecuniary damage and another one which allowed for a finding of a violation, provided for all heads of damage, and, moreover, could have afforded any other means of redress relevant to the complaints at issue. The Court observes that it does not transpire that in such cases national law necessarily requires that ordinary civil proceedings be undertaken as a sine qua non before the institution of constitutional redress proceedings, and neither has this been claimed by the Government. The same was in fact held recently by the Civil Court (First Hall) in its constitutional jurisdiction (see paragraph 26, in fine, above). The Constitutional Court ’ s decision, and, before that, the similar decision of the Civil Court (First Hall) in its constitutional jurisdiction, declining the exercise of its jurisdiction was therefore not mandatory under procedural rules, or in accordance with any well-established case-law to that effect, but rather was a matter of discretion, that is to say it was based on the judgment of the judges sitting on that bench, as provided for in the Constitution (see relevant domestic law). It follows that there is nothing legally incorrect about the rulings of the constitutional organs, and the use of an ordinary remedy before the constitutional redress proceedings is not only customary but also desirable in order to avoid burdening the constitutional jurisdictions unnecessarily with cases. It may be that such an aim would be better achieved if the ordinary courts had the power to award also non-pecuniary (“moral”) damage. However, even though in the Maltese legal system the ordinary remedy was limited in scope, it cannot be considered ineffective if followed by constitutional redress proceedings, and therefore the existence of an effective aggregate of remedies cannot be denied.", "67. Nevertheless, in the present case the Court notes that the Constitutional Court ’ s decision seems to have been based on a very broad reading of the Court ’ s case-law. The Court notes that, in Zavoloka it held, solely, that there was no right to non-pecuniary damage in circumstances such as those of that specific case, where the applicant ’ s daughter had died as a result of a traffic accident due to the negligence of a third party and where no responsibility, whether direct or indirect, could be attributed to the authorities.", "68. Furthermore, in connection with the specific circumstances of the present case, the Court notes that the applicants ( apart from the family of Mr Attard and Mr Dyer ) were found to have pleural plaques in their lungs, were experiencing physical difficulties and were prone to malignant mesothelioma ( as occurred in the case of the deceased Mr Attard ) and they were challenging the Government for having failed to protect them against such negative consequences. Mr Dyer although not affected to date was at risk of suffering the same fate. For the purpose of seeking redress, they were confronted with the two possibilities available under the Maltese legal order, namely ( i ) instituting an ordinary civil action which could only partly redress their grievances (and which could have taken years to decide – in the Pellicano case the action was commenced in 1980 and was only finally determined ten years later) followed by constitutional redress proceedings which could redress the remaining unsatisfied claims or (ii) instituting constitutional redress proceedings which could deal with the entirety of their requests for redress. It has not been submitted that their applications before the courts with constitutional jurisdiction had no prospects of success; these courts could have chosen to exercise otherwise their discretion and take cognisance of the case, instead of declining to do so. Indeed, the latter course of action would appear to have been the most appropriate approach even from the perspective of domestic case-law (see paragraphs 25 - 26 and 47 above ) and probably the only approach possible in the case of Mr Dyer.", "69. Consequently, in the circumstances of the present case and particularly in the absence of any pre-existing mandatory legal requirements ensuing from law or well-established case-law requiring the institution of civil tort actions before recourse to the constitutional organs (in circumstances such as those of the present case), the Court considers that the applicants cannot be held to blame for pursuing one remedy instead of two. Moreover, such an action would have also served the interests of economy of proceedings given that – in any event – the applicants would have been bound to go before the constitutional organs to obtain the full range of redress which they claimed.", "70. The Court also notes that in their applications before the constitutional jurisdictions the applicants concerned requested the court to quantify a fair amount of compensation for the breach of their rights, to liquidate such amount and to order that this pecuniary redress be paid individually to each applicant (see paragraph 14 above). The Court considers that this general wording used by the applicants does not specifically exclude, as the Constitutional Court seems to have held (see paragraph 17, in fine, above) non-pecuniary damage as understood in the Court ’ s case-law. On the contrary it must be taken as including both pecuniary ( “ material ” damage, consisting under domestic law of damnum emergens and lucrum cessans ) and non-pecuniary (“moral”) damage, the term ‘ pecuniary ’ used by the applicants meaning simply ‘ monetary ’ and therefore before the domestic courts the relevant applicants ’ request cannot be said to have been deficient.", "71. In the specific circumstances of the case, the Court is therefore satisfied that the national judicial authorities were provided with the opportunity to remedy the alleged violations of the Convention but failed to do so. Consequently, from the Court ’ s perspective, the applicants ’ institution of constitutional proceedings sufficed in the present case for the purpose of exhaustion of domestic remedies in respect of the substantive complaints under Articles 2, 3 and 8.", "72. The Government ’ s objection is therefore dismissed.", "III. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION", "73. The applicants complained under Articles 2 and 8 of the Convention in respect of their exposure to asbestos (or that of their deceased relative in the case of application no. 62338/11) and of the Government ’ s failings in that respect. The relevant provisions read:", "Article 2", "“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.", "2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:", "(a) in defence of any person from unlawful violence;", "(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;", "(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "74. The Government contested that argument.", "A. The substantive complaints", "1. Admissibility", "(a) The parties ’ submissions as to the applicability of the provisions", "75. The Government submitted that the medical certificates produced by the applicants did not establish a direct link between their medical complaints and the fact that they were employed in the shipbuilding or ship repair industry. The medical certificate in the case of Mr Attard stated that his death was “likely to be a result of asbestos exposure”. The same comment appeared on the other certificates. The Government further submitted that although chest X - rays were the most common tool for detecting asbestos-related diseases, they could not detect asbestos fibres in the lungs.", "76. The Government contended that everyone was exposed to asbestos at some time during their life as low levels of asbestos are present in the air, water and soil. Relying on a factsheet of 5 January 2009 issued by the National Cancer Institute entitled “Asbestos Exposure and Cancer Risk”, the Government noted that the risks of developing an asbestos - related disease depended on various factors, including how much asbestos one was exposed to, the length of the exposure, the size, shape and chemical composition of the asbestos fibres, the source of the exposure, and individual risk factors such as smoking and pre-existing lung disease. Indeed the combination of smoking and asbestos exposure was particularly hazardous. However, exposure did not necessarily lead subsequently to lung disease.", "77. They explained that if products containing asbestos were disturbed, tiny asbestos fibres were released into the air. When these were breathed in, they became trapped in the lungs and over time could accumulate and cause scarring and inflammation, which could affect breathing. It was rare for a cancer of the thin membranes that lined the chest and abdomen to develop from asbestos exposure and the more likely consequence was an increased risk of asbestosis, an inflammatory condition affecting the lungs and causing shortness of breath, coughing and lung damage, and other non-malignant lung and pleural disorders including pleural plaques (changes in the membrane surrounding the lung), pleural thickening and benign pleural effusions (abnormal collections of fluid between the thin layers of tissue lining the lungs and the wall of the chest cavity ). According to the Government, it was well known in the medical community that pleural plaques were not precursors to lung cancer.", "78. The applicants considered that through negligence, recklessness and lack of commitment on the part of the authorities they were robbed of their life expectancy through an irrevocable process of pain and lethal illness. The Government ’ s responsibility was even more evident considering that those actions and/ or omissions had taken place at MDC, a Government ‑ controlled entity – that is to say, at the applicants ’ place of work.", "(b) The Court ’ s assessment", "79. The Court reiterates that Article 2 does not solely concern deaths resulting from the use of unjustified force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III, and Paul and Audrey Edwards, cited above, § 54).", "80. This obligation is construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous, such as the operation of waste-collection sites (see Öneryıldız v. Turkey [GC], no. 48939/99, §71, ECHR 2004 ‑ XII) or nuclear testing (see L.C.B. cited above, § 36) or cases concerning toxic emissions from a fertiliser factory (see Guerra and Others v. Italy, 19 February 1998, §§ 60 and 62, Reports 1998 ‑ I, although in this case the Court found that it was not necessary to examine the issue under Article 2, it having been examined under Article 8).", "81. The Court considers that the same obligations may apply in cases, such as the present one, dealing with exposure to asbestos at a workplace which was run by a public corporation owned and controlled by the Government.", "82. The Court reiterates that it has applied Article 2 both where an individual has died (see, for example, Öneryıldız, cited above) and where there was a serious risk of an ensuing death, even if the applicant was alive at the time of the application. Examples include cases where the physical integrity of an applicant was threatened by the action of a third party (see Osman v. the United Kingdom, 28 October 1998, §§ 115-122, Reports 1998 ‑ VIII) or as a result of a natural catastrophe which left no doubt as to the existence of a threat to the applicants ’ physical integrity (see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 146, ECHR 2008 (extracts)). More particularly, the Court has repeatedly examined complaints under Article 2 from persons suffering from serious illnesses. Such cases include G.N. and Others v. Italy ( no. 43134/05, 1 December 2009 ) in which the applicants suffered from the potentially life - threatening disease hepatitis C; L.C.B. v. the United Kingdom ( cited above ), where the applicant suffered from leukaemia diminishing her chances of survival, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, ECHR 2012 (extracts), concerning applicants suffering from different types of terminal cancer; Karchen and Others v. France ( ( dec. ), no. 5722/04, 4 March 2008) and Oyal v. Turkey ( no. 4864/05, 23 March 2010 ), in which the applicants had been infected with the HIV virus, which endangered their life; Nitecki v. Poland (( dec. ), no. 65653/01, 21 March 2002), in which the applicant suffered from amyotrophic lateral sclerosis; Gheorghe v. Romania (( dec. ), no. 19215/04, 22 September 2005), in which the applicant suffered from haemophilia; and De Santis and Olanda v. Italy ( ( dec. ), 35887/11, 9 July 2013 ) in which the applicant – who was severely disabled – suffered a cerebral haemorrhage as a consequence of an infection acquired in hospital.", "83. The medical certification indicated that Mr Attard ’ s death was likely to be a result of asbestos exposure; malignant mesothelioma is known to be a rare cancer associated with asbestos exposure. The Court observes that it has not been contested or denied that Mr Attard worked at Malta Drydocks for more than a decade ( 1959-1974), during which time he was repeatedly exposed to asbestos. Neither has it been shown that Mr Attard could have been contaminated elsewhere or that he was affected by other factors that could have led to the disease. In these circumstances, and given that Mr Attard has died as a result of his cancer, the Court considers that Article 2 is applicable to the complaint brought by the applicants in application no. 62338/11 relating to the death of the said Mr Attard.", "84. As to the remaining applicants who also worked at MDC, the documentation presented indicates that all but one applicant ( Mr Dyer) have respiratory problems and plaques in their lungs, together with some other complications related to exposure to asbestos, but have not to date been diagnosed with malignant mesothelioma. It can neither be said that their conditions constitute an inevitable precursor to the diagnosis of that disease, nor that their current conditions are of a life-threatening nature. It follows that Article 2 does not apply in their case and the complaint brought by the remaining applicants under the Article under examination is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a), and must be rejected in accordance with Article 35 § 4.", "85. However, in the context of dangerous activities, the scope of the positive obligations under Article 2 of the Convention largely overlaps with that of those under Article 8 (see Öneryıldız, cited above, §§ 90 and 160). The latter provision has allowed complaints of this nature to be examined where the circumstances were not such as to engage Article 2, but clearly affected a person ’ s family and private life under Article 8 (see Lόpez Ostra v. Spain, 9 December 1994, Series A no. 303-C and Guerra and Others, cited above). The Court therefore considers it appropriate to examine the complaints in respect of the remaining applicants under Article 8, which is applicable in the present case (see also Roche v. the United Kingdom [GC], no. 32555/96, §§ 155-156, ECHR 2005 ‑ X).", "(c) Other admissibility issues", "86. The Court notes that it has jurisdiction ratione temporis to deal with the complaints in so far as they relate to the period after 23 January 1967, when the Convention entered into force in respect of Malta.", "87. The Court further notes that it has previously recognised the standing of the victim ’ s next-of-kin to submit an application where the victim had died or disappeared in circumstances which were alleged to engage the responsibility of the State giving rise to issues under Article 2 (see Çakıcı v. Turkey [GC], no. 23657/94, § 92, ECHR 1999 ‑ IV, and Bazorkina v. Russia ( dec. ), no. 69481/01, 15 September 2005), it follows that the applicants in application no. 62338/11 have victim status in respect of the complaint under Article 2.", "88. Lastly, the Court notes that the relevant complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds.", "89. It follows that the substantive complaint under Article 2 in respect of the applicants in application no. 62338/11 and that under Article 8 in respect of the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 must be declared admissible.", "90. Given that the tests to be carried out under Articles 2 and 8 are similar (see Budayeva and Others, cited above, § 133), the Court will carry out its examination of the complaints under these Articles together.", "2. Merits", "(a) The parties ’ submissions", "( i ) The applicants", "91. The applicants complained that the Government had failed to fulfil their positive obligations under the relevant Convention provisions.", "92. The applicants submitted that the causal link between asbestos and respiratory disease had been documented as early as 1938 and that the causal link between mesothelioma and asbestos exposure had been conclusively established in the early 1960s. Information on the dangers of asbestos had been available since the 1950s and – given that it was members of the ILO who had raised awareness of the issue – the authorities should have known of the risks it posed to the health of employees, even more so following 1979 when the Government had been one of the parties to a lawsuit involving the subject matter (see paragraph 10 above). Nevertheless, the MDC employees had been neither informed about nor protected from the dangers of asbestos in any way and they had been assured that adequate ventilation and the wearing of cloth masks would protect them from it. The applicants claimed that these masks, made of flimsy disposable material, had provided insufficient protection, them being totally inadequate for use at their place of work or for the purposes of protection from asbestos. According to the applicants, the “adequate ventilation” could not be considered to have been sufficient either, as was clearly apparent from their medical tests, which had shown that they were suffering from asbestos ‑ related diseases.", "93. The applicants pointed out that the Government had admitted that nothing had been done apart from the enactment of specific legislation in 2006. Neither had the Government demonstrated that they had a clear policy for removing asbestos, as had been shown by the fact that asbestos was currently still to be found at a site at their former place of work, in a disused tunnel which had been walled up. Furthermore, the applicants highlighted the fact that the Government ’ s refusal to ratify the Asbestos Convention only showed their lack of sensitivity to the grave dangers of asbestos.", "94. In the applicants ’ view, the enactment of legislation without proper implementation, precautions and dissemination of information was not sufficient to exempt the State from its obligations. Moreover, there was no justification for the tardy legislative response. The applicants submitted a list (twenty-four pages long ) containing the titles of publications produced between 1912 and 1997 concerning the hazardous effects of asbestos. They claimed that most of these publications had been routinely available, as from the 1940s, to Maltese medical students (who had often also studied in Britain), let alone doctors and the Government. Nevertheless, legislative action only came to pass over fifty years later. Moreover, until the end of the century, asbestos - laden ships had freely entered the ship repair facilities and workers had been instructed to work on them.", "( ii) The Government", "95. The Government pointed out that until a few decades ago asbestos had been one of nature ’ s best raw materials, being widely used in the building, construction and shipbuilding industries to insulate boilers, steam pipes and hot water pipes. After it was established that it probably caused latent effects on the lungs of those who came into contact with it, there was initially a slow reaction worldwide, but that had since gathered momentum. The Government argued that the dangers associated with asbestos had only come to the fore in the late 1970s at international level, and at that time the means of communication and disseminating information were not as prolific as they were today. They pointed out that the applicants had failed to prove that the publications they referred to had been available to the Government, medical practitioners and medical students.", "96. Nonetheless, once the Government had become aware of the dangers associated with asbestos, they had embarked on an exercise to phase out the material, and legislation had been enacted to terminate the importation of asbestos into Malta. Laws were passed in order to protect employees from the dangers of asbestos exposure as early as 1987 (and not 2006 as claimed by the applicants) in the form of the Work Place (Health, Safety and Welfare) Regulations, which had entered into force on 9 February 1987, the Protection of Workers from the Risks related to Exposure to Carcinogens or Mutagens at Work Regulations, which had entered into force on 16 May 2003, and the Protection of Workers from the Risks related to Exposure to Asbestos at Work Regulations, which had entered into force on 15 December 2006 (see “ Relevant domestic law” above). Furthermore, according to the Government, the Occupational Health and Safety Authority provided preventive information and guidelines concerning the management and use of asbestos material. In particular, they highlighted the fact that in the late 1990s a sophisticated asbestos removal operation had been carried out at MDC on vessels undergoing repairs. The Government denied that the employees had been made to work on asbestos - laden ships, noting that after the Government had become aware of the hazardous nature of the material, employees who chose to work on such ships had been given an allowance as compensation. However, the Government pointed out that it was impossible for a country to be totally asbestos - free and for a worker never to come in contact with the material, particularly a worker in the shipbuilding or ship repair sector. They contended that anyone employed in such a work environment would be fully aware of the hazards involved.", "97. The Government noted that Malta had not ratified all the ILO conventions, and of the sixty-one it had ratified, only fifty-four were in force. In particular, Malta had not ratified the ILO 1986 Asbestos Convention (which had come into force in 1989, having been ratified by thirty-five States at the time ) and consequently it had not been bound to implement its measures or recommendations. Nevertheless, the subsidiary legislation ( mentioned above ), enacted for the purposes, had been in line with the WHO guidelines.", "98. The Government accepted that the applicants had been employed at the dockyard in the 19 50s and had continued their career there, but noted that the MDC was now in liquidation. Consequently it was difficult for the Government to provide any information about the extent of any information material given to the applicants at the time, since those persons administering the company at the time had by now retired or died. In any event the Government considered that they had not been responsible for not having disseminated information before the dangers of asbestos were known and generally accepted as correctly ascertained. Distinguishing the instant case from Guerra and Others (cited above ), they pointed out that no reports existed in this case. Moreover, the Government contended that the legislative enactments contained sufficient information and warnings to employees.", "99. In the Government ’ s view, while a State was required to take preventive measures to protect individuals from risks to their life, there was a margin of appreciation left to the State in balancing the competing interests involved. In their view the legislative enactments, coupled with protective clothing (implying the provision of information), namely a mask similar to those used by workers exposed to volatile material - which admittedly could not be compared to modern equipment but which the Government had considered adequate for those days – had satisfied their obligations under Article 2. Moreover, the applicants had not proved that there had been any better equipment available at the time to protect employees.", "100. Similarly, the Government submitted that they had fulfilled their positive obligations under Article 8 since, as soon as awareness of the harmful effects of asbestos exposure had been raised, legislation had been put in place to regulate its use in the workplace, to ban its importation, and to remove it from the shipbuilding process. Moreover, the employees had been given masks to minimise damage and had been paid an allowance by the ship owners to compensate for the risk they were exposed to.", "( b ) The Court ’ s assessment", "( i ) General principles", "101. The Court makes reference to its general principles as stated in Öneryıldız and further elaborated on in Budayeva and Others ( both cited above ), as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/ 05 and 35673/05, §§ 157-161, 28 February 2012, and as reiterated in Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 220, 5 December 2013:", "“The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129).", "The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90).", "Among these preventive measures particular emphasis should be placed on the public ’ s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89- 90, and Budayeva and Others, cited above, § 132 ).", "As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35).", "In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities ’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation (see Budayeva and Others, cited above, §§ 136-37).”", "102. The Court has also held on many occasions that the State has a positive duty to take reasonable and appropriate measures to secure an applicant ’ s rights under Article 8 of the Convention (see, among many other authorities, López Ostra, cited above, § 51, Series A no. 303 ‑ C; Powell and Rayner v. the United Kingdom, 21 February 1990, § 41, Series A no. 172; and, more recently, Di Sarno and Others v. Italy, no. 30765/08, § 96, 10 January 2012 ). In particular, the Court has affirmed a positive obligation of States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives (see, by implication, Guerra and Others, cited above, §§ 57-60; López Ostra, cited above, § 55; McGinley and Egan, cited above, §§ 98-104; and Roche, cited above, §§ 157-69). In the Court ’ s view, this obligation may in certain circumstances also encompass a duty to provide such information (see, by implication, Guerra and Others, cited above, §§ 57-60; and Vilnes and Others, cited above § 235). It has also recognised that in the context of dangerous activities, the scopes of the positive obligations under Articles 2 and 8 of the Convention largely overlap (see Budayeva and Others, cited above, § 133). Indeed, the positive obligation under Article 8 requires the national authorities to take the same practical measures as those expected of them in the context of their positive obligation under Article 2 of the Convention (see Kolyadenko and Others, cited above, § 216).", "(ii) Application to the present case", "103. In the absence of more detail in the Government ’ s submissions, the Court will assess the case on the basis of the material available to it.", "104. On the basis of the material in its possession, the Court considers it established that the applicants in applications nos. 60908/11, 62110/11, 62 129/11 and 62312/11 and Mr Attard (hereinafter “the applicants” for ease of reference) were exposed to asbestos during their careers as employees at the ship repair yard run by the MDC. Indeed, while admitting that all workers were exposed to some extent, the Government contended that after they had become aware of the relevant dangers, they had ensured that the applicants were not made to work on asbestos- laden ships, without submitting what other possible functions or work they had been assigned at their place of work or any details regarding the dates when they had ceased to work with such material. Given the information and documents available, the Court finds no reason to doubt the applicants ’ assertions as to their working history.", "105. The Court must also consider whether the Government knew or ought to have known of the dangers arising from exposure to asbestos at the relevant time ( from the entry into force of the Convention for Malta in 1967 onwards) (see, in a different context, O ’ Keeffe v. Ireland [GC] no. 35810/09, 28 January 2014, §§ 152 and 168). In this connection the Court notes that the Government implicitly admitted to have known of these dangers in or around 1987, as they stated that as soon as they had become aware of the dangers associated with asbestos, laws were enacted to protect employees from these dangers as early as 19 87. Nevertheless, given that Mr Attard had left the dry docks in 1974, the Court must examine whether at the time while he was exposed, that is, at least in the early 1970s, the Government knew or ought to have known of the relevant dangers.", "The Court acknowledges that the ILO Asbestos Recommendation and subsequent Convention which contained the minimum standards applicable concerning the use of asbestos were adopted in 1986. Nevertheless, as in many cases, the adoption of such texts comes after considerable preparatory work which may take significant time, and in the ambit of the ILO after having undertaken meetings with representatives of governments, and employers ’ and workers ’ organisations of all member countries of the organisation. They are usually preceded by a number of guidelines, and before concrete proposals can be made there is a thorough search for a consensus between the stake holders, namely public authorities as well as employers and workers. It is also common knowledge that the issues surrounding asbestos have been greatly debated amongst stakeholders all over the world, and that given the interests involved, particularly economic and commercial ones, acknowledging its harmful effects has not been easy. In this connection the Court observes that up to this date a number of countries have not yet banned the substance and only thirty-five countries out of the one hundred and ninety-eight United Nations Member States have ratified the Asbestos Convention. It appears logical, that this cannot be taken to mean that the dangers of asbestos are today still unknown.", "106. Thus, as to whether the Maltese Government knew or ought to have known in the early seventies, the Court must rely on other factors, most evident amongst them being objective scientific research, particularly in the light of the domestic context. The Court takes account of the list, submitted by the applicants, which contains references to hundreds of articles or other publications concerning the subject at issue published from 1930 onwards - many of them taken from reputable British medical journals. The Court observes that medical studies at the then Royal University of Malta were modelled on, and followed closely upon, the corresponding United Kingdom system, with many graduates in medicine continuing their studies in England and Scotland. Particularly in view of this situation, even accepting the Government ’ s argument - that is, that information was at the time not as readily available as it is today - it is inconceivable that there was no access to any such sources of information, at least, if by no one else, by the highest medical authorities in the country, notably the Chief Government Medical Officer and Superintendent of Public Health (as provided for in the, now repealed, Department of Health (Constitution) Ordinance, Chapter 94 of the Laws of Malta, see paragraph 42 above ). In fact, according to Maltese law it was precisely the duty of the Superintendent of Public Health to remain abreast of such developments and advise the Government accordingly. The Court, further, observes that it has not been submitted that there had been any specific impediment to access the necessary information. Furthermore, the Government failed to rebut the applicants ’ assertion with any signed statement by a medical expert or authority, who could have attested that the medical professionals in the country were, in or around the 1970s, unaware of these worrying medically related findings at the time.", "Moreover, the Pellicano judgment by the Commercial Court (see paragraph 35 above) is in itself an implicit acknowledgement by a domestic court that in the years preceding Mr Pellicano ’ s death in 1979 the authorities knew or ought to have known of the dangers of working with asbestos and that they had failed to provide adequate health and safety measures in that respect.", "Against this background, the Court concludes that for the purposes of the present case, it suffices to consider that the Maltese Government knew or ought to have known of the dangers arising from exposure to asbestos at least as from the early 1970s.", "107. As to the fulfillment of the ensuing obligations, as stated above, the respondent Government claimed that as soon as they had become aware of the dangers associated with asbestos, laws were enacted to protect employees from these dangers and this as early as 1987 by means of the Work Place (Health, Safety and Welfare) Regulations. It follows that, by Government ’ s admission, up until 1987 no positive action was taken in the nearly two decades (four years in the case of Mr. Attard who left the MDC in 1974) during which the applicants had been exposed to asbestos.", "108. As to the steps taken after 1987, the Court firstly notes that the mentioned regulations make no reference to asbestos, unlike the later legislation which was enacted for that precise purpose. Consequently, it is difficult to accept the Government ’ s argument that the Work Place (Health, Safety and Welfare) Regulations were the first proactive attempt to safeguard the applicants against these dangers by means of legislation.", "109. However, even assuming that the Work Places (Health, Safety and Welfare) Regulations were indeed a legislative reaction to the dangers of asbestos exposure and that, therefore, the Government treated asbestos as falling into the category of a “ toxic material ” or “dangerous substance” for the purposes of that legislation, the Court notes the following.", "In accordance with Regulation 16, no employer may use or suffer to be used any chemical or material which is toxic without the approval of the Superintendent of Public Health. The Government did not find it expedient to explain whether such approval had been sought or given for asbestos and, if so, on what grounds. Even if approval was given, by the Government ’ s implicit admission, asbestos continued to be used and employees continued to work on it.", "Pursuant to Regulation 18, it was the duty of the employer to ensure that the atmosphere in workrooms in which potentially dangerous or obnoxious substances were handled or used was tested periodically to ensure that, inter alia, toxic or irritating fibres were not present in quantities that could injure health, and to maintain an atmosphere fit for respiration. Moreover, no work should have been carried out unless such tests had been done. Again, the Government have not indicated that any such tests had ever been carried out in the workrooms (or elsewhere) where the applicants, like the other employees, had been exposed to asbestos.", "Apart from the above -mentioned regulations (16 and 18), the Work Places (Health, Safety and Welfare) Regulations made no provision for any other practical measures which could or should have been taken in order to protect the applicants, nor were there any provisions concerning the right to access information. It was only the legislation enacted in 2003 and 2006 which introduced such measures, including ( but not limited to ) the duty to provide the applicants and people in their situation with information about the risks to health and safety which they were facing.", "110. The Court considers that enacting specific legislation fifteen years after the time in the mid-1980s when the Government accept that they were aware of the risks can hardly be seen as an adequate response in terms of fulfilling a State ’ s positive obligations. Furthermore, by the time the 2002, 2003 and 2006 legislation had been enacted and came into force (see paragraphs 33 and 34 above), the applicants had little if anything to gain since the timing coincided with the end of their careers, when they were leaving or had already left Malta Drydocks (see paragraph 6 above).", "111. Consequently, from the information provided, it is apparent that from the mid- 1980 s to the early 2000 s, when the applicants (except for Mr Attard ) left the MDC, the legislation was deficient in so far as it neither adequately regulated the operation of the asbestos - related activities nor provided any practical measures to ensure the effective protection of the employees whose lives might have been endangered by the inherent risk of exposure to asbestos. Moreover, even the limited protection afforded by that legislation had no impact on the applicants since it appears to have remained unenforced.", "112. The Court considers that, while there is a primary duty to put in place a legislative and administrative framework, it cannot rule out the possibility, a priori, that in certain specific circumstances, in the absence of the relevant legal provisions, positive obligations may nonetheless be fulfilled in practice. In the present case, however, the only practical measure that appears to have been taken by the State, as the employer, was to distribute masks, on unspecified dates and at unspecified intervals ( if distributed repeatedly at all ). The Court notes in this connection that the apparently disposable masks ( which were shown to the Court) were considered by experts in the Pellicano case to be of “inadequate quality” and “ did not take sufficient account of the state of scientific knowledge about the subject matter at the relevant time” (see paragraph 33 above). These findings are sufficient for the Court to conclude that such practical attempts left much to be desired.", "113. As to the duty to provide access to essential information enabling individuals to assess risks to their health and lives and the duty to provide such information, the Court notes that the Government submitted that no information reports were in fact available and that it was difficult for them to provide any information about the extent of any informative material given to the applicants. They noted, however, that the Occupational Health and Safety Authority (OHSA) provided preventive information and guidelines concerning the management and use of asbestos.", "114. It would therefore appear that no information was ever collected or studies undertaken or reports compiled specifically about the asbestos situation at the applicants ’ place of work. Furthermore, the Government did not even argue that any general information was, in fact, accessible or made available to the applicants. Instead the Government, seemingly oblivious to the obligations arising from the Convention, opted to consider that it was not their responsibility to provide information at the outset and that anyone in such a work environment would in any case be fully aware of the hazards involved. The Court considers the latter statement to be in stark contrast to the Government ’ s repeated argument that they (despite being employers and therefore well acquainted with such an environment) were for long unaware of the dangers. The Court further finds inappropriate the Government ’ s contention that the distribution of the above - mentioned masks was an implicit source of information. Additionally, in relation to the Government ’ s reference to the information available at the OHSA, the Court notes that this authority was only created after the year 2000 and it could therefore not have been a source of information before that date. It follows that in practice no adequate information was in fact provided or made accessible to the applicants during the relevant period of their careers at the MDC.", "115. Lastly, the Court notes that the Government submitted a general statement to the effect that employees who had worked on asbestos (after its dangers became known to the Government ) were offered compensation or a special allowance to perform such work. The Court firstly draws attention to the domestic case-law on the matter (see paragraph 34 above). But more importantly, it notes that the Government have not provided any relevant information specific to the instant case. They did not submit whether the applicants in the present case had been entitled to such compensation and if so whether they had accepted it or received it. Neither has it been submitted or shown that, because they were not working on asbestos from a specific date onwards, they were not entitled to compensation. Nor did the Government submit any information as to when such compensation had in fact become available. In that light, such an abstract affirmation can have no bearing on the Court ’ s conclusion.", "116. The above considerations lead the Court to conclude that in view of the seriousness of the threat at issue, despite the State ’ s margin of appreciation as to the choice of means, the Government have failed to satisfy their positive obligations, to legislate or take other practical measures, under Articles 2 and 8 in the circumstances of the present case.", "117. It follows that there has been a violation of Article 2 in respect of the applicants in application no. 62338/11 relating to the death of Mr Attard and a violation of Article 8 in respect of the remaining applicants.", "B. The procedural complaint under Article 2", "118. In their applications, the applicants also appeared to complain – albeit in unclear terms – that the Government had failed to investigate the circumstances of the case and prosecute those responsible, in violation of their procedural obligations under Article 2 of the Convention. They contended that the very knowledge that people were dying of malignant mesothelioma (as shown from death certificates which were publicly available) should have prompted the authorities to take the necessary steps and comply with their duty to investigate and institute some sort of proceedings against those responsible. The State ’ s inability to point to any such action was tantamount to an admission of their failure to comply with their procedural obligations under Article 2.", "119. The Government argued that it was incumbent on the victims or their heirs to institute proceedings before the ordinary domestic courts and to prove the link between asbestos exposure and the damage claimed. Moreover, the Government had been aware of only two deaths connected with the subject matter, namely those of Mr Pellicano and Mr Attard, which had occurred after the dry docks had ceased operating.", "120. The Court reiterates that the provision is applicable only in respect of the applicants in application no. 62338 /11 relating to the death of Mr Attard.", "121. The Court observes that – unlike in medical negligence cases, where a civil remedy may suffice ( see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I) – in cases concerning incidents resulting from dangerous activities under Article 2, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of, firstly, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the State officials or authorities involved in any capacity whatsoever in the chain of events concerned (see Öneryıldız, cited above, § 94 and Budayeva, cited above, § 142).", "122. In Öneryıldız (deaths resulting from a landslide caused by a methane explosion) the Court in fact adopted that approach after it had found the following § 93 :", "“ It should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability (see Caraher v. the United Kingdom ( dec. ), no. 24520/94, ECHR 2000-I), but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 47-49, §§ 157-64, and İlhan, cited above, § 91).", "In the Court ’ s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents.”", "123. It follows that, although in most cases requiring an investigation a complaint is generally lodged with the authorities in order to obtain such an investigation, it is not mandatory in cases where the authorities are better placed to know about the original cause of the claim.", "124. The Court notes that the present case concerns a death that did not result from one particular instance but rather from circumstances which were spread over a number of decades, and which did not ensue from uncertain conditions - indeed, the State ’ s responsibility has been established by the domestic courts in similar circumstances even where there was no investigation. In fact the Pellicano case was decided, in so far as responsibility in concerned, in 1989 and Mr Attard died in 2006. There is no doubt that during that period information about asbestos related consequences was publicly available.", "125. It follows that it cannot be said that the circumstances of Mr Attard ’ s death were confined within the knowledge of state officials and therefore that the Government should have conducted an investigation ex officio.", "126. The Court further notes that there was nothing preventing the applicants from lodging a complaint in order to bring their concerns to the Government ’ s attention. In these circumstances, the applicants in application no. 62338/11 should have at least lodged a complaint with the relevant authorities concerning the death of Mr Attard and requested an investigation and the prosecution of those responsible. However, no such action was undertaken by the applicants.", "127. It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non- exhaustion of domestic remedies.", "IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION", "128. The applicants complained that the Government had failed to protect them from suffering inhuman and degrading treatment within the meaning of Article 3 of the Convention, which reads:", "“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”", "129. The Government argued that it was evident that they had fulfilled their positive obligations under Article 3 but they in any event submitted that no evidence had been produced by the applicants to prove that they had been ill-treated or tortured or subjected to any degrading treatment.", "130. Having examined the medical reports submitted by the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11, the Court considers that while the conditions in which those applicants have lived in recent years – which were even more severe in the case of Mr John Mary Abela – have undoubtedly caused some difficulties and discomfort, they cannot be considered to amount to degrading treatment within the meaning of Article 3 (see, mutatis mutandis, López Ostra, cited above, § 60) and cannot therefore trigger the state ’ s positive obligations under that provision ( see Fadeyeva v. Russia ( dec. ), no. 55723/00, 16 October 2003).", "131. It follows that this complaint must be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "132. In respect of the applicants in application no. 62338/11, namely the relatives of the deceased Mr Attard, the Court considers that – even assuming that the suffering of Mr Attard can be considered to have reached the relevant threshold for the purposes of this provision – bearing in mind the findings in paragraph 113 above and the strictly personal nature of Article 3 and the complaint at issue, the circumstances of the present case do not lead to the conclusion that the Article 3 claim is transferrable to the heirs on the grounds of either general interest or strong moral interest (see Kaburov v. Bulgaria ( dec. ) §§ 56-57, 19 June 2012). For these reasons, the applicants in application no. 62338/11 cannot be considered to have victim status in respect of this complaint.", "133. The Court considers that their complaint is therefore incompatible ratione personae with the provisions of the Convention for the purposes of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.", "V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "134. The applicants complained of a violation of Article 13 in so far as the Constitutional Court judgment in their cases deprived them of an effective remedy under Article 13 in conjunction with Articles 2, 3 and 8 of the Convention. Article 13 reads:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "135. The Government contested that argument. They argued that if the applicants were complaining about the judgment of the Constitutional Court, they should have instituted a fresh set of constitutional redress proceedings to complain about the matter, and the Constitutional Court would have had the competence and necessary impartiality to examine it. Furthermore, they contended that the applicants had in fact had an effective remedy for the purposes of Articles 2 and 3 of the Convention, namely an action in tort. They referred to their observations for the purposes of their plea of non-exhaustion of domestic remedies.", "136. The Court firstly notes that it has already established in the context of Maltese cases before it that even though Maltese domestic law provides for a remedy against a final judgment of the Constitutional Court, the length of the proceedings detracts from the effectiveness of that remedy and, in view of the specific situation of the Constitutional Court in the domestic legal order, this is not a remedy which needs to be used in order to fulfil the exhaustion requirement (see Saliba and Others v. Malta, no. 20287/10, § 78, 22 November 2011 and Bellizzi v. Malta, no. 46575/09, § 44, 21 June 2011). Thus, contrary to the Government ’ s arguments, the applicants are entitled to raise their complaint before the Court at this stage.", "137. The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The remedy required by Article 13 must be “effective” in practice as well as in law. In particular, its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, 18 December 1996, § 95, Reports 1996-VI, and Aydın v. Turkey, 25 September 1997, § 103, Reports 1997 ‑ VI). However, the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006 ‑ VII), and the mere fact that an applicant ’ s claim fails is not in itself sufficient to render the remedy ineffective ( Amann v. Switzerland, [GC], no. 277 98/95, §§ 88-89, ECHR 2002-II).", "138. In relation to the complaint in conjunction with Articles 2 and 8, the Court has already explained in paragraph 63 above that an effective remedy existed ( contrast Di Sarno, cited above, § 118). The fact that the use of that remedy did not lead to a finding in favour of the applicants or remained unused in the particular circumstances does not render it ineffective.", "139 In relation to the complaint in conjunction with Article 3, the Court reiterates that Article 13 does not apply if there is no arguable claim. As it has found above, the complaints under that Article were either manifestly ill-founded or inadmissible ratione personae. Consequently there was no such claim. It follows, that Article 13 is not applicable in conjunction with Article 3.", "140. In conclusion, the entirety of the complaint under Article 13 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.", "VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "141. Lastly, the applicants also appear to be complaining that their families were equally victims of the above- mentioned provisions in so far as they were affected by the third- party transfer of asbestos particles.", "142. The Court notes that only the relatives of the deceased Mr Attard have applied to it. The relatives of the other applicants have not lodged any complaints with the Court. It follows that any complaint lodged by the other applicants on behalf of their families – who have not themselves applied to be parties to the proceedings – must be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.", "143. Thus, the complaint of which the Court takes cognisance can concern only the family of Mr Attard, namely the applicants in application no. 62338/11.", "144. The Court reiterates that severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way that their private and family life are adversely affected even without seriously endangering their health (see Lόpez Ostra, cited above, § 51). However, in the present case, in so far as the complaint goes beyond that examined under Article 2 of the Convention, the Court considers that the complaint concerning the applicants in person does not appear to have been sufficiently developed before the domestic courts with constitutional jurisdiction. The same applies in respect of the applications lodged with the Court.", "145. The complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.", "VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "146. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "147. The applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 claimed 40,000 euros (EUR) per applicant ( except for Mr John Mary Abela who claimed EUR 70,000 given his specific condition ) in respect of pecuniary damage in the form of biological damage to their lungs, loss of independence as a result of their impaired lung function and the need for regular visits to a lung specialist. In the case of Mr John Mary Abela this also covered fees incurred in relation to mobility assistance. They also claimed EUR 100,000 per applicant in respect of non ‑ pecuniary damage for the four alleged violations.", "148. The first applicant in application no. 62338/11 claimed EUR 94,500 in respect of pecuniary damage. That sum included EUR 74, 500 covering the pay Mr Attard would have received over the four years up to retirement had he not passed away at the age of sixty-one as a result of his asbestos - related disease (based on his annual pay in 2004 of approximately EUR 18,635, submitted to the Court ) and an additional EUR 20,000 for maintaining a home until his wife reached eighty years of age. The applicants in application no. 62338/11 claimed EUR 120,000 each in respect of non-pecuniary damage.", "149. The Government submitted that the computation of pecuniary damage in the applicants ’ cases was a matter for the domestic courts in ordinary civil proceedings and could not be based on data from an insurance website, which was what the applicants had utilised. The Government submitted that the applicants had, moreover, not provided proof of any such pecuniary damage. Furthermore, there was no causal link between the quantum of damages and the alleged hazard. As to the claims in respect of non-pecuniary damage, the Government submitted that the mere finding of a violation would suffice – the underlying principle of human rights being to provide standards – and that if the Court considered that an award should be made in respect of non - pecuniary damage, it should not exceed EUR 1,000 per applicant.", "150. The Court has accepted the link between the medical conditions affecting the relevant applicants and their exposure to asbestos during the time they worked at MDC, and it thus discerns a causal link between the violation found and some of their claims in respect of pecuniary damage. However, none of the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 has substantiated these claims, which are therefore dismissed. In respect of the claims of the first applicant in application no. 62338/11, the Court notes that the retirement age in Malta is in fact sixty-one years of age and that there was therefore no guarantee that Mr Attard would have worked any longer had he not passed away. Moreover, the Court sees no causal link between his wife ’ s claim for household maintenance and the violations alleged. It follows that these claims are also dismissed.", "151. On the other hand, given the violations of either Article 2 or 8 of the Convention in the present case – which the mere finding of a violation in this judgment is not sufficient to remedy – the Court awards the applicants the following amounts in respect of non-pecuniary damage:", "The applicants in application no. 62338/11, EUR 30 ,000 in total; Mr John Mary Abela EUR 1 2 ,000; Mr Dyer, EUR 1 ,000; and the remaining applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11, EUR 9 ,000 each.", "B. Costs and expenses", "152. The applicants also claimed the following costs and expenses incurred before the domestic courts and the Court :", "Application no. 60908/11 : EUR 15,112 ( comprising EUR 4,302 as per the attached bill of costs plus an additional EUR 780 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 7,080 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,950 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court ).", "Application no. 62110/11 : EUR 13,467 ( comprising EUR 4,1 77 as per the attached bill of costs, plus an additional EUR 7 94 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 5,664 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,832 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court).", "Application no. 62129/11 : EUR 15,525 ( comprising EUR 4,163 as per the attached bill of costs, plus an additional EUR 742 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 7,080 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 3,540 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court).", "Application no. 62312/11 : EUR 13,499 ( comprising EUR 4,328 as per the attached bill of costs, plus an additional EUR 782 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 5,664 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,724 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court).", "Application no. 62338/11 : EUR 14,915 ( comprising EUR 7,154 as per the attached bill of costs, plus an additional EUR 1,388 in VAT for legal counsel and interest at 8%, together with extrajudicial fees towards payment for legal counsel of EUR 4,248 (inclusive of VAT) in conjunction with the domestic proceedings, and EUR 2,124 – amounting to EUR 600 per applicant, plus VAT – for proceedings before the Court).", "153. The Government did not contest the part of the claims concerning the costs incurred by the applicants before the domestic courts (as per the taxed bill) but they contested the part concerning the expenses payable in respect of the opposing parties ( the Occupational Health and Safety Authority and the Government ) since the applicants had not shown that those payments had actually been made. They further contended that no interest was due on the judicial bill of costs. The Government further noted that all costs related to the domestic proceedings were included in the taxed bill of costs ( including the lawyer ’ s fees ) and therefore no extrajudicial legal fees were due. Lastly, the Government noted that the applicants had claimed EUR 14,170 in total for the proceedings before the Court, but argued that, given that the applications had been dealt with together and that the applications and submissions were identical, the Court should not award more than EUR 2 ,500 for proceedings before it.", "154. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court firstly notes that if any dues relating to the domestic proceedings are still unpaid, they remain payable to the relevant parties in accordance with domestic law. In the present case, taking into account the documents in its possession and the above criteria, and in particular the fact that, as argued by the Government, legal fees are already included in the taxed bill of costs and the applications before the Court were treated jointly, the Court considers it reasonable to award the sum of EUR 6,000 per application covering costs under all heads.", "C. Default interest", "155. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "10. The applicant was born in 1935 and lives in Brescia.", "11. She has lived since 1950 in a house on the outskirts of Brescia, 3 0 metres away from a plant for the storage and treatment of “special waste” classified as either hazardous or non-hazardous. A joint-stock company, Ecoservizi, began operating the plant in 1982.", "A. Ecoservizi ’ s activities and the subsequent contentious proceedings", "1. The licence for the “detoxification” of industrial waste", "12. In a decision ( delibera ) of 4 April 1989, the Lombardy Regional Council granted Ecoservizi a licence to operate the plant for a five-year period. The different forms of waste treatment covered by Ecoservizi ’ s licence included, for the first time, the “ detoxification ” ( inertizzazione ) of hazardous waste, a process involving the treatment of special industrial waste using chemicals.", "13. On 30 October 1991 the Regional Council authorised Ecoservizi to increase the annual quantity of waste treated at the plant to a total volume of 192, 000 cubic metres. In particular, the quantity of toxic waste authorised for detoxification was raised from 30, 000 to 75, 000 cubic metres.", "14. On 5 August 1993 the Regional Council approved a number of alterations entailing technological improvements to the facility without any increase in the quantity of waste being treated.", "15. In a decision of 11 April 1994, the Lombardy Regional Council renewed the operating licence for a five-year period, on condition that Ecoservizi signed a memorandum of understanding with the local authorities in order to limit the plant ’ s environmental impact; that condition was satisfied on 18 November 1994.", "16. On 13 December 1994 the Regional Council took note of the signing of the memorandum of understanding and confirmed 30 April 1999 as the expiry date for the operating licence.", "2. The first set of contentious proceedings", "17. The applicant lodged three applications with the Lombardy Regional Administrative Court in 1994 and 1995 for judicial review of the Regional Council ’ s decisions of 5 August 1993 and 11 April and 13 December 1994.", "She challenged the renewal of the operating licence granted to Ecoservizi and, alleging a breach of Law no. 441 / 1987, argued that the alterations approved by the Regional Council entailed an increase in activity such as to necessitate a fresh licensing procedure, including an assessment of the plant ’ s environmental impact.", "Ecoservizi applied to intervene in the proceedings.", "18. The applicant also sought a stay of execution of the decision to renew the licence. The court allowed her request in an order of 18 November 1994, chiefly because the memorandum of understanding had not yet been signed, and suspended the implementation of the decision. Ecoservizi appealed.", "19. On 7 April 1995 the Consiglio di Stato set aside the Regional Administrative Court ’ s order, holding that the signing of the memorandum of understanding (see paragraph 15 above) had removed the risk of irreparable damage on the basis of which the stay of execution had been ordered.", "20. In a judgment of 13 April 1996, the Lombardy Regional Administrative Court, having joined all the applicant ’ s applications, dismissed them. It noted that all her complaints were based on the alleged need for the Regional Council to conduct a fresh licensing procedure. It considered, however, that the size of the facility and its volume of activity had been determined in the Regional Council ’ s decisions of 1989 and 1991, which had never been challenged by the applicant. However, the alterations approved in the impugned decisions of 5 August 1993 and 11 April and 13 December 1994 did not entail an increase in the plant ’ s volume of activity or a change in the types of waste being treated. Accordingly, it was not necessary for the Regional Council to conduct a fresh licensing procedure.", "21. The applicant appealed. In a judgment of 6 November 1998, the Consiglio di Stato upheld the Regional Administrative Court ’ s conclusions and dismissed the appeal. It also pointed out that a facility should be deemed to be “new” and thus to require a fresh operating licence where there was a change in one of the various stages of waste treatment or in the types of waste being treated.", "3. The second set of contentious proceedings", "22. In a decision of 29 April 1999, the Lombardy Regional Council renewed Ecoservizi ’ s operating licence for a five-year period. The decision was subject to revocation in the light of the findings of the environmental-impact assessment procedure ( procedura di valutazione di impatto ambientale – “EIA procedure” ) which Ecoservizi had initiated in the meantime (see paragraphs 37-52 below ).", "23. On 12 July 1999 the applicant applied to the Lombardy Regional Administrative Court for judicial review of the Regional Council ’ s decision of 29 April 1999. The company and the Lombardy Regional Council both applied to intervene in the proceedings.", "24. On 20 September 1999 the applicant applied to the Regional Administrative Court for judicial review of a decision of 12 April 1999 in which the Regional Council had authorised Ecoservizi to make an alteration to the facility for processing waste oils.", "25. Furthermore, in a decision of 15 October 1999, the Regional Council noted that Ecoservizi had decided not to act on the authorisation granted on 12 April 1999, and confirmed the renewal of the operating licence. The applicant applied for judicial review of that decision.", "26. In an order of 18 February 2000, the Regional Administrative Court allowed an application by the applicant for a stay of execution, on the ground that the EIA procedure was still pending. Subsequently, on 11 April 2000, the Consiglio di Stato allowed an appeal by Ecoservizi, which had argued that the latest inspections of the plant demonstrated its “observance of the limits set by the existing regulations”, and set aside the stay of execution ordered by the Regional Administrative Court.", "27. In a judgment of 29 April 2003, which was deposited with the registry on 9 June 2003, the Lombardy Regional Administrative Court allowed the applicant ’ s applications on the merits and set aside the three impugned decisions (see paragraphs 23-25 above).", "The court held, firstly, that the site alterations authorised by the Regional Council on 12 April 1999 in order to allow the processing of waste oils should have been classified as substantial. Consequently, in accordance with Articles 27 and 28 of Decree no. 22/1997 (see paragraphs 62 and 63 below), the Regional Council should have suspended Ecoservizi ’ s operations and ordered the necessary checks to be carried out before renewing the company ’ s operating licence. The court therefore found that the Lombardy Regional Council ’ s decision of 29 April 1999 had been unlawful.", "As to the fact that the company had subsequently decided not to carry out the alterations in question, the court held that the Regional Council should in any event have carried out a thorough examination of the plant ’ s operations and condition, as there had been a number of complaints from private individuals and public authorities about Ecoservizi ’ s activities, giving rise to serious doubts as to their compatibility with environmental standards.", "The court referred to the two environmental-impact assessment decrees (“ EIA decrees”) issued by the Ministry of the Environment and, holding that the Regional Council had failed to carry out its investigative duties, ordered the suspension of Ecoservizi ’ s operations pending the final outcome of the EIA procedure.", "28. Ecoservizi lodged an appeal with the Consiglio di Stato. On 1 July 2003 the Consiglio di Stato stayed the execution of the judgment of 2 9 April 2003 further to a request to that effect by the company.", "29. In a judgment of 25 May 2004, which was deposited with the registry on 31 August 2004, the Consiglio di Stato dismissed Ecoservizi ’ s appeal. Upholding the Regional Administrative Court ’ s judgment, it held that the Regional Council ’ s decision of 29 April 1999 to renew the operating licence without having carried out any environmental-impact assessment was unlawful and should be set aside.", "4. The third set of contentious proceedings", "30. In the meantime, in a decision of 23 April 2004, the Lombardy Regional Council had renewed the operating licence for the plant for a five-year period. The renewal concerned the treatment of special waste, both hazardous and non-hazardous. Industrial waste intended for detoxification remained outside the scope of the licence pending the conclusion of the EIA procedure being conducted by the Ministry of the Environment.", "31. A consultation meeting between the local authorities ( conferenza di servizi ) was held on 31 March 2004 prior to the granting of the licence. At the meeting the Regional Council and the provincial and district councils concerned expressed an opinion in favour of renewing the licence, referring at the same time to the report issued by the Regional Environmental Protection Agency (ARPA) on 28 February 2004.", "In the report the ARPA experts indicated what steps had to be taken to avoid any risk of an incident or operational fault at the plant; in addition to these, all the requirements laid down by the Regional Council in its decision of 7 November 2003 (see paragraph 49 below) had to be met.", "32. The applicant applied to the Lombardy Regional Administrative Court for judicial review of that decision and sought a stay of its execution.", "33. On 30 April 2004 the Regional Council, having taken note of the EIA decree of 28 April 2004 approving the treatment by Ecoservizi of all types of waste, incorporated its latest decision to renew the operating licence into a provisional licence for the detoxification of industrial waste, valid until 22 June 2004, pending completion of the full licensing procedure.", "34. In a decision of 28 June 2004, the Regional Council extended the licence until 31 December 2004 to allow Ecoservizi to submit its plans for adapting the plant to meet the requirements set out in the EIA decree.", "35. In an order of 23 July 2004, the Lombardy Regional Administrative Court dismissed an application by the applicant for a stay of execution, holding that the decision of 23 April 2004 had been given in accordance with the favourable opinion by the local authorities and had taken into account all factors constituting a potential risk to the properties in the vicinity of the plant. The court further noted that the decision in question had laid down a number of requirements aimed at eliminating the disturbance suffered by the applicant.", "36. The proceedings on the merits are still pending before the Lombardy Regional Administrative Court.", "B. Environmental-impact assessment procedures conducted by the Ministry of the Environment", "37. In a decision of 13 December 1996, the Lombardy Regional Council ordered Ecoservizi to initiate an EIA procedure in respect of the detoxification activities at the plant.", "On 11 May 1998 the company submitted its application to the Ministry of the Environment in accordance with section 6 of Law no. 349/1986.", "Brescia District Council and the applicant took part in the procedure, together with the local authorities of Borgosatollo and Castenedolo, two villages situated within several hundred metres of the plant.", "38. On 24 May 2000 the Ministry of the Environment issued an EIA decree.", "The Ministry noted that the plant was built on agricultural land, near the River Garza and a sand quarry, the exploitation of which had gradually eroded the soil. Because of the permeability of the ground in particular, there was a significant risk that the toxic chemical residue generated by the detoxification operations at the plant might contaminate the groundwater, a source of drinking water for the inhabitants of the neighbouring villages.", "The Ministry considered that the operation of the plant was incompatible with environmental regulations. However, Ecoservizi was allowed to continue its activities until the expiry on 29 April 2004 of the most recent operating licence granted by the Regional Council, provided that it complied with certain requirements.", "39. Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the decision and sought a stay of its execution.", "40. In an order of 31 August 2000, the Regional Administrative Court suspended the implementation of the decision and ordered the Ministry to carry out a fresh environmental-impact assessment. The Ministry appealed. On 8 May 2001 the Consiglio di Stato declared the appeal inadmissible.", "41. In the meantime, on 30 April 2001 the Ministry had issued a further EIA decree confirming that the operation of the plant was incompatible with environmental regulations.", "42. Ecoservizi applied to the Lazio Regional Administrative Court for judicial review of the new decree issued by the Ministry.", "43. On 11 July 2001 the court allowed the application by Ecoservizi and ordered the Ministry to carry out a fresh environmental-impact assessment.", "44. In an order of 11 December 2001, the Consiglio di Stato dismissed an appeal by the Ministry of the Environment against the above -mentioned order of the Lazio Regional Administrative Court.", "45. In a decision of 4 November 2002, the Lombardy Regional Council notified Ecoservizi of the conditions for operating the plant, as laid down in the decrees issued by the Ministry of the Environment.", "46. In the meantime, on 4 October 2002, in the course of the fresh EIA procedure ordered by the Regional Administrative Court, Ecoservizi had submitted a plan for altering the facility.", "The plan envisaged, among other things, making the ground surface impermeable, building soundproofing devices, raising the site ’ s perimeter wall so as to avoid any risk of flooding, and improving the system for monitoring hazardous emissions.", "47. On 17 October 2003 the local health authority ( azienda sanitaria locale – ASL) submitted its opinion to the Lombardy Regional Council on the compatibility of Ecoservizi ’ s activities with environmental regulations. It stated that, according to the results of technical analyses carried out between 2000 and 2003, which had noted, among other things, the presence of abnormal concentrations of carbon and other organic substances in the atmosphere, the continuation of the plant ’ s operation could cause health problems for those living nearby. The ASL added that it had not been shown that the precautions envisaged by Ecoservizi were sufficient to protect public health.", "48. On 7 November 2003 the Lombardy Regional Council approved the continuation of the plant ’ s operation, provided that the company implemented a number of requirements.", "49. In particular, the company was to:", "“ draw up a memorandum of understanding with the local authorities for monitoring the waste being treated, with a view to reducing the likelihood of an operational fault at the site ...;", "ensure the buffering of the detoxification facilities ...;", "close the open -top chambers used in the chemical and biological process and develop an exhaust ventilation and purification system ...;", "build a mobile, soundproof structure to cover the macerator ...;", "alter the internal sewerage system so as to separate atmospheric water from water produced by the facility;", "set up a system for monitoring the quality and quantity of water produced by the plant that flows into the Garza ... and into public sewers;", "devise and implement a plan for making the ground impermeable at the site ...;", "monitor the site in order to obtain a precise assessment of the presence of any pollutants in the subsoil, the hydrogeological structure of the land and the danger levels for the nearby groundwater supplies used as drinking water ...;", "... raise the facility ’ s perimeter wall to a minimum height of 123 metres above sea level ...”", "The Regional Council further directed :", "“ ... the close proximity of residential dwellings means that the plant ’ s operations must be permanently monitored as regards the dust released into the atmosphere, VOCs ( volatile organic compounds ) and noise disturbance. Accordingly, a unit should be set up between the site and the dwellings to measure dust emissions and the noise generated by the facility. As regards VOC quantities, the monitoring device should be installed near the facility with the agreement of the relevant authorities;", "the company should also carry out periodic reviews of noise emissions.”", "The Regional Council decided that the plant ’ s implementation of the above requirements should be verified when the time came to renew its operating licence, due to expire on 3 0 April 2004.", "50. On 28 April 2004 the EIA procedure ordered by the Regional Administrative Court was completed and the Ministry of the Environment issued a new EIA decree.", "The Ministry noted, firstly, that Ecoservizi processed 27 % of the waste generated in northern Italy and 23 % nationwide. It subsequently stated that the requirements laid down by the Regional Council should significantly improve the conditions for operating and monitoring the plant and expressed an opinion in favour of Ecoservizi ’ s continued operation of the plant, provided that it complied with those requirements.", "51. The applicant applied to the Lazio Regional Administrative Court for judicial review of the EIA decree, at the same time seeking a stay of its execution.", "52. In an order of 2 4 July 2004, the Regional Administrative Court refused the request for a stay of execution on the ground that the applicant had not notified the Ministry of the Environment of her application.", "C. Complaints regarding Ecoservizi ’ s activities, and inspections by the relevant authorities", "53. Following numerous complaints by the applicant and other inhabitants of the area surrounding the plant, the Brescia ASL ’ s Public and Environmental Health Office and the ARPA produced a number of reports on Ecoservizi ’ s activities.", "54. In particular, on 21 September 1993 experts from the ASL conducted analyses of the emissions produced at the plant and found that the statutory limits had been exceeded for certain substances, such as nickel, lead, nitrogen and sulphates. The report drawn up by the ASL indicates that the judicial authorities were informed of the findings of the analyses.", "55. On 8 March 1995 experts from the ASL inspected the plant. They noted that a deposit of white dust had formed inside and outside the facility following an accident while a silo was being filled with slaked lime.", "During the same inspection the experts observed that a number of containers intended for toxic waste were present on the site without having been neutralised after use. In a note dated 27 April 1995, the ASL instructed the company to move the containers in order to avoid any risk of contaminating the ground, particularly as the surface had not been made impermeable. It appears from the report that the ASL lodged a complaint with the appropriate judicial authorities.", "56. In a report issued on 31 July 1997, the NAS ( special branch of the carabinieri dealing with health issues ) informed Brescia Provincial Council that a complaint had been lodged against Ecoservizi ’ s legal representative for failure to comply with the conditions laid down in the licences for operating the plant.", "57. On several occasions between 1999 and 2003 Brescia District Council asked the Lombardy Regional Council to intervene with a view to moving the facility to a safer site better suited to the plant ’ s growing production needs.", "58. On 28 December 2002 Brescia District Council temporarily rehoused the Giacomelli family free of charge pending the outcome of the judicial dispute with Ecoservizi in order to alleviate the disturbance caused to the applicant by the plant.", "59. On 15 May 2002 the ARPA issued a technical report on Ecoservizi further to a request by the applicant and her neighbours for an emergency inspection of the site. The experts found a high level of ammonia in the atmosphere, indicating a fault in the detoxification process. They concluded that the company had omitted to activate the necessary devices for ensuring that the waste to be detoxified was compatible with the facility ’ s specifications. There were also structural deficiencies at the site that could potentially lead to operational faults generating emissions of fumes and gases." ]

[ "II. RELEVANT DOMESTIC LAW", "60. Section 6 of the Environment Act ( Law no. 349/1986 ), which was enacted in accordance with European Directive 85/337/EEC, provides that any project which is likely to have significant effects on the environment", "“ must be submitted, prior to its approval, to the Ministry of the Environment, the Ministry of Cultural and Environmental Heritage and the authorities of the region concerned for an environmental-impact assessment ( ‘ EIA ’ ). The application must state the location of the installation and give details of the liquid and solid waste and the pollutants and noise disturbance which it will generate. It must also outline the measures intended to prevent environmental damage and the environmental- protection and monitoring arrangements. Notice of the application shall be published at the applicant ’ s expense in the newspaper with the largest circulation in the region concerned and in a national newspaper.", "The Ministry of the Environment shall, together with the Ministry of Cultural and Environmental Heritage, after consulting the authorities of the region concerned, give a decision within ninety days as to the project ’ s compatibility with environmental regulations.", "Where the Ministry of the Environment observes any conduct that is contrary to the decision on compatibility with environmental regulations or is likely to endanger the environmental and ecological balance, it shall order the suspension of operations and shall refer the matter to the Council of Ministers. ”", "61. Article 1 of Prime Ministerial Decree no. 377/1988 lists the types of project that are subject to the assessment procedure provided for in Law no. 349/1986. Point (f) of the Article refers to “facilities for the treatment of toxic and harmful waste by means of a ... chemical process”.", "62. Law no. 441/1987, amended by Legislative Decree no. 22/1997, contains provisions on waste treatment and environmental protection.", "Article 27 of the Decree governs the licensing of waste-treatment facilities. The regional council conducts a preliminary examination of proposed new facilities for the treatment and storage of urban, special, toxic and harmful waste by means of consultations ( conferenze ) in which representatives of the region and the other local authorities concerned take part.", "If the planned facility examined by the regional council has to undergo a prior environmental-impact assessment within the meaning of Law no. 349/ 1986, the licensing procedure is suspended pending the decision of the Ministry of the Environment.", "63. Once the examination of the project is complete, the regional council awards an operating licence for the facility in an administrative decision laying down the necessary environmental-protection conditions and requirements for the operator to observe. The licence is valid for five years and is renewable.", "Where it emerges from inspections of the site that the conditions laid down by the authorities are not being met, the operation of the facility is suspended for up to twelve months. Subsequently, if the facility ’ s operations have not been brought into line with the requirements set out in the licence, the licence is revoked (Article 28 of Decree no. 22 / 1997).", "64. By section 21 of Law no. 1034/1971, anyone who has cause to fear that his or her rights may suffer imminent and irreparable damage as a result of the implementation of an administrative measure which he or she has challenged or of the authorities ’ conduct may ask the administrative courts to take urgent action to ensure, depending on the circumstances, that the decision on the merits can provisionally take effect.", "THE LAW", "I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION", "65. The Government submitted that the application was premature in that the latest proceedings instituted by the applicant were still pending in the Regional Administrative Court. Asserting that an application to the administrative courts for judicial review was an effective and accessible remedy, the Government submitted that the applicant should be required to await the outcome of those proceedings.", "66. The applicant disputed the Government ’ s reasoning. She submitted that since 1994 she had asked the administrative courts on several occasions to halt the plant ’ s operation. However, although her requests for stays of execution had been granted and the environmental- impact assessment concerning the plant had been negative, its activities had never been stopped.", "67. The Court observes that in its decision of 15 March 2005 on the admissibility of the application, it held that the Government ’ s objection that the application was premature should be joined to the examination of the merits of the case. Having regard to the substance of the applicant ’ s complaint, it can only confirm that conclusion.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "68. The applicant complained that the persistent noise and harmful emissions from the plant, which was only 30 metres away from her house, entailed severe disturbance to her environment and a permanent risk to her health and home, in breach of Article 8 of the Convention, which provides:", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. The parties ’ submissions", "1. The applicant", "69. The applicant submitted that the plant operated by Ecoservizi had considerably expanded since being opened in 1982, having spread to barely 30 metres from the house in which she had already been living for several years before that date, and having reached an annual production capacity of some 200,000 cubic metres of harmful waste.", "70. Since 1991 in particular, the plant ’ s operations had increasingly been characterised by the continuous emission of noise and odours, preventing the applicant from being able to rest and live in adequate conditions, and had entailed a constant danger to the health and well-being of all those living in the vicinity. The applicant submitted that such a state of affairs was wholly incompatible with her right to respect for her private life and home and her right to health, and contended that the measures taken by the company were not sufficient to eliminate the disturbance produced by the plant and the risk resulting from its operation.", "71. The applicant further submitted that the environmental-impact assessment procedure, which according to the law should have been an essential prerequisite for the plant ’ s operation, had not been initiated until several years after Ecoservizi had begun its activities. Furthermore, the company and the authorities had never complied with the decrees in which the plant ’ s operation had been deemed incompatible with environmental regulations, and had disregarded the instructions issued by the Ministry of the Environment. The treatment of toxic and harmful waste could not be said to be in the public interest in such conditions.", "2. The Government", "72. The Government did not dispute that there had been interference with the applicant ’ s right to respect for her home and private life. They contended, however, that the interference had been justified under the second paragraph of Article 8 of the Convention.", "The Government asserted that the administrative decisions in which Ecoservizi had been granted operating licences had been taken in accordance with the law and had pursued the aims of protecting public health and preserving the region ’ s economic well-being. The company, they pointed out, processed almost all of the region ’ s industrial waste, thereby ensuring the development of the region ’ s industry and protecting the community ’ s health.", "73. In the Government ’ s submission, the instant case differed from that in Guerra and Others v. Italy (19 February 1998, § 57, Reports of Judgments and Decisions 1998-I ) for two reasons. Firstly, Ecoservizi ’ s operations respected the fundamental right to public health, and secondly, it had not been proved that the facility in the instant case was dangerous, whereas in Guerra and Others it had not been disputed that the emissions from the chemical factory entailed risks for the inhabitants of the town of Manfredonia. The Government also pointed out the difference between the instant case and that in López Ostra v. Spain (9 December 1994, Series A no. 303- C), in which the operation of the waste-treatment plant had not been indispensable to the local community. Emphasising the public-interest value of Ecoservizi ’ s activities, they observed that regard had to be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole, and that there was a clear body of case-law in which the Court had allowed States a wide margin of appreciation in environmental matters.", "74. The Government also drew the Court ’ s attention to the latest decisions by the domestic authorities.", "They pointed out, firstly, that on 23 July 2004 the Lombardy Regional Administrative Court, after considering all the relevant evidence in the case, had dismissed an application by the applicant for a stay of execution of the most recent decision to grant Ecoservizi an operating licence. They further noted that the most recent EIA procedure had ended on 28 April 2004 with a positive assessment by the Ministry of the Environment.", "This proved that the relevant authorities had assessed the plant ’ s operations as a whole and, while ordering the company to comply with certain requirements, had found that they were compatible with environmental regulations and did not entail a danger to human health.", "75. The Government further pointed out that Ecoservizi, a company that was very familiar to the public, not least because of the judicial proceedings and complaints brought by Ms Giacomelli, had frequently undergone inspections by the relevant authorities, so that any risk to the applicant ’ s health could be ruled out. The applicant, whose sole purpose was to secure the closure or relocation of the plant, had simply alleged a violation of her right to health, without taking into account the efforts made by the appropriate authorities to improve the situation and without giving details or proof of any adverse effects on her health.", "B. The Court ’ s assessment", "76. Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII).", "77. Thus in Powell and Rayner v. the United Kingdom ( 21 February 1990, § 40, Series A no. 172), the Court declared Article 8 applicable because “ [ i ] n each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport ”. In López Ostra (cited above, § 51), which concerned the pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others (cited above, § 57), the Court observed: “The direct effect of the toxic emissions on the applicants ’ right to respect for their private and family life means that Article 8 is applicable.” Lastly, in Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable.", "78. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, § 41, and López Ostra, § 51, both cited above).", "79. The Court considers that in a case such as the present one, which involves government decisions affecting environmental issues, there are two aspects to the examination which it may carry out. Firstly, it may assess the substantive merits of the government ’ s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Taşkın and Others v. Turkey, no. 46117/99, § 115, ECHR 2004-X ).", "80. In relation to the substantive aspect, the Court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation (see Hatton and Others, cited above, § 100; Buckley v. the United Kingdom, 25 September 1996, §§ 74-77, Reports 1996-IV; and Taşkın and Others, cited above, § 116).", "It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the treatment of industrial waste in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community.", "81. To justify the award of the operating licence for the plant to Ecoservizi and the subsequent decisions to renew it, the Government referred to the economic interests of the region and the country as a whole and the need to protect citizens ’ health.", "82. However, the Court must ensure that the interests of the community are balanced against the individual ’ s right to respect for his or her home and private life. It reiterates that it has consistently held that, although Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and must afford due respect to the interests safeguarded to the individual by Article 8 (see, mutatis mutandis, McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307-B).", "It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available (see Hatton and Others, cited above, § 104). However, this does not mean that the authorities can take decisions only if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided.", "83. A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals ’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others, cited above, § 128). The importance of public access to the conclusions of such studies and to information enabling members of the public to assess the danger to which they are exposed is beyond question (see, mutatis mutandis, Guerra and Others, cited above, § 60, and McGinley and Egan v. the United Kingdom, 9 June 1998, § 97, Reports 1998-III). Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process (see, mutatis mutandis, Hatton and Others, cited above, § 128, and Taşkın and Others, cited above, §§ 118- 19).", "84. In determining the scope of the margin of appreciation allowed to the respondent State, the Court must therefore examine whether due weight was given to the applicant ’ s interests and whether sufficient procedural safeguards were available to her.", "85. The Lombardy Regional Council first granted Ecoservizi an operating licence for the plant in question in 1982. The facility was initially designed for the storage and treatment of hazardous and non-hazardous waste. In 1989 the company was authorised to treat harmful and toxic waste by means of “detoxification”, a process involving the use of chemicals potentially entailing significant risks to the environment and human health. Subsequently, in 1991, authorisation was given for an increase in the quantity of waste being treated at the plant, and the facility was consequently adapted to meet the new production requirements until it reached its current size.", "86. The Court notes at the outset that neither the decision to grant Ecoservizi an operating licence for the plant nor the decision to authorise it to treat industrial waste by means of detoxification was preceded by an appropriate investigation or study conducted in accordance with the statutory provisions applicable in such matters.", "87. The Court observes that section 6 of Law no. 349/1986 provides that the Ministry of the Environment must carry out a prior environmental-impact assessment ( “ EIA ” ) for any facility whose operation might have an adverse effect on the environment; among such facilities are those designed for the treatment of toxic and harmful waste using chemicals (see paragraphs 60 and 61 above).", "88. However, it should be noted that Ecoservizi was not asked to undertake such a study until 1996, seven years after commencing its activities involving the detoxification of industrial waste.", "89. The Court further notes that during the EIA procedure, which was not concluded until a final opinion was given on 28 April 2004 (see paragraph 50 above), the Ministry of the Environment found on two occasions, in decrees of 24 May 2000 and 30 April 2001 (see paragraphs 38 and 41 above), that the plant ’ s operation was incompatible with environmental regulations on account of its unsuitable geographical location, and that there was a specific risk to the health of the local residents.", "90. As to whether the applicant had the opportunity to apply to the judicial authorities and to submit comments, the Court observes that between 1994 and 2004 she lodged five applications with the Regional Administrative Court for judicial review of decisions by the Regional Council authorising the company ’ s activities; three sets of judicial proceedings ensued, the last of which is still pending. In accordance with domestic law, she also had the opportunity to request the suspension of the plant ’ s activities by applying for a stay of execution of the decisions in issue.", "91. The first set of proceedings instituted by the applicant ended in 1998 when the administrative courts dismissed her complaints, finding among other things that she had failed to challenge the decisions in which the Regional Council had authorised an increase in Ecoservizi ’ s volume of activity ( see paragraph 20 above ).", "92. However, in the second set of contentious proceedings the Lombardy Regional Administrative Court and the Consiglio di Stato, in decisions of 29 April 2003 and 25 May 2004 respectively, held that the plant ’ s operation had no legal basis and should therefore be suspended with immediate effect (see paragraphs 27 and 2 9 above).", "In accordance with the legislation in force, the plant ’ s operation should have been suspended so that the company could bring it into line with environmental-protection regulations and hence obtain a positive assessment from the Ministry of the Environment.", "However, the administrative authorities did not at any time order the closure of the facility.", "93. The Court considers that the State authorities failed to comply with domestic legislation on environmental matters and subsequently refused, in the context of the second set of administrative proceedings, to enforce judicial decisions in which the activities in issue had been found to be unlawful, thereby rendering inoperative the procedural safeguards previously available to the applicant and breaching the principle of the rule of law (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 63, ECHR 1999 ‑ V).", "94. It considers that the procedural machinery provided for in domestic law for the protection of individual rights, in particular the obligation to conduct an environmental-impact assessment prior to any project with potentially harmful environmental consequences and the possibility for any citizens concerned to participate in the licensing procedure and to submit their own observations to the judicial authorities and, where appropriate, obtain an order for the suspension of a dangerous activity, were deprived of useful effect in the instant case for a very long period.", "95. Nor can the Court accept the Government ’ s argument that the decree of 28 April 2004, in which the Ministry of the Environment authorised the continuation of the plant ’ s operation, and the decision of 23 July 2004, in which the Lombardy Regional Administrative Court refused the most recent request by the applicant for a stay of execution, serve as proof of the lack of danger entailed by the activities carried out at the site and of the efforts made by the domestic authorities to strike a fair balance between her interests and those of the community.", "96. In the Court ’ s opinion, even supposing that, following the EIA decree of 28 April 2004, the measures and requirements indicated in the decree had been implemented by the relevant authorities and the necessary steps had been taken to protect the applicant ’ s rights, the fact remains that for several years her right to respect for her home was seriously impaired by the dangerous activities carried out at the plant 30 metres away.", "97. Having regard to the foregoing, and notwithstanding the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant ’ s effective enjoyment of her right to respect for her home and her private and family life.", "98. The Court therefore dismisses the Government ’ s preliminary objection and finds that there has been a violation of Article 8 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed the sum of 1,500,000 euros (EUR) for pecuniary damage and sought a similar award for non-pecuniary damage.", "She added that she was prepared to forgo part of the sums claimed if Ecoservizi ’ s operations were immediately stopped or if the facility were moved to another site.", "101. The Government submitted that the sums claimed were excessive and that the finding of a violation would constitute sufficient just satisfaction.", "102. As to the specific measures requested by the applicant, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV).", "103. As regards pecuniary damage, the Court observes that the applicant failed to substantiate her claim and did not indicate any causal link between the violation found and the pecuniary damage she had allegedly sustained.", "104. The Court considers, however, that the violation of the Convention has indisputably caused the applicant substantial non-pecuniary damage. She felt distress and anxiety as she saw the situation persisting for years. In addition, she had to institute several sets of judicial proceedings in respect of the unlawful decisions authorising the plant ’ s operation. Such damage does not lend itself to precise quantification. Making its assessment on an equitable basis, the Court awards the applicant the sum of EUR 12 ,000.", "B. Costs and expenses", "105. The applicant sought the reimbursement of the costs and expenses incurred before the domestic authorities and the Court. In her bills of costs she quantified her domestic costs at EUR 19,365 and the costs incurred before the Court at EUR 3,598.", "106. The Government left the matter to the Court ’ s discretion.", "107. According to the Court ’ s settled case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum (see, among many other authorities, Belziuk v. Poland, 25 March 1998, § 49, Reports 1998-II, and Sardinas Albo v. Italy, no. 56271/00, § 110, 17 February 2005).", "108. The Court considers that part of the applicant ’ s costs in the domestic courts were incurred in order to remedy the violation it has found and should be reimbursed ( contrast Serre v. France, no. 29718/96, § 29, 29 September 1999). It is therefore appropriate to award her EUR 5, 000 under that head. The Court also considers it reasonable to award her the sum claimed in respect of the proceedings before it. Accordingly, making its assessment on an equitable basis, it decides to award the applicant the sum of EUR 8, 598.", "C. Default interest", "109. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicants are Ukrainian nationals residing in the hamlet of Vilshyna in the Lviv region.", "A. Preliminary information", "7. The first to fifth applicants are members of an extended family residing in a house owned by the first applicant ( the Dubetska-Nayda family house). This house was built by the family in 1933.", "8. The remaining applicants are members of an extended family residing in a house constructed by the sixth applicant ( the Gavrylyuk-Vakiv family house). This house was built by him in 1959. It is unclear whether a permit for construction of this house was obtained in 1959. Subsequently the house was officially registered, to which a property certificate of 1988 is witness.", "9. The applicants'houses are located in Vilshyna hamlet, administratively a part of Silets village, Sokalskyy district, Lviv Region. The village is located in the Chervonograd coal-mining basin.", "10. In 1955 the State began building, and in 1960 put into operation, the Velykomostivska No. 8 coal mine, whose spoil heap is located 100 metres from the Dubetska-Vakiv family house. In 2001 this mine was renamed the Vizeyska mine of the Lvivvugillya State Holding Company (“the mine ”; Шахта «Візейська» ДХК «Львіввугілля» ). In July 2005 a decision was taken to close the mine as unprofitable. The closure project is currently under way.", "11. In 1979 the State opened the Chervonogradska coal processing factory (“the factory ”; Центрально-збагачувальна фабрика «Червоноградська» ) in the vicinity of the hamlet, initially managed by the Ukrzakhidvugillya State Company. In 2001 the factory was leased out to the Lvivsystemenergo Closed Joint Stock Company ( ЗАТ «Львівсистеменерго» ). Subsequently the Lvivsystemenergo CJSC was succeeded by the Lviv Coal Company Open Joint Stock Company. In 2007 a decision was taken to allow the factory to be privatised. It is not clear whether the factory has already been privatised.", "12. In the course of its operation the factory has piled up a 60-metre spoil heap 430 metres from the Dubetska-Nayda family house and 420 metres from the Gavrylyuk-Vakiv family house. This spoil heap was not subject to privatisation and remained State property.", "B. The environmental situation in Vilshyna hamlet", "1. General data concerning pollution emitted by the factory and the mine", "13. According to a number of studies by governmental and non ‑ governmental entities, the operation of the factory and the mine has had adverse environmental effects.", "14. In particular, in 1989 the Sokalskyy District Council Executive Committee (“the Sokalskyy Executive Committee”; Виконавчий комітет Сокальської районної ради ) noted that the mine's and the factory's spoil heaps caused continuous infiltration of ground water, resulting in flooding of certain areas.", "15. According to an assessment commissioned by the State Committee for Geology and Mineral Resource Utilisation, jointly with the Zakhidukrgeologiya State geological company ( Державний комітет України по геології та використанню надр; Державне геологічне підприємство « Західукргеологія ») in 1998, the factory was a major contributor to pollution of the ground water, in particular on account of infiltration of water from its spoil heap. The authors of the assessment contended, in particular, that:", "“All the coal - mining industry operational in the region for over forty years has been negatively affecting the environment: spoil heaps from the mines and the coal-processing factory have been created, from which dust with a high concentration of toxic components spreads into the atmosphere and the soil ... systems of water drainage of the mines ... and cesspools ... of the coal - processing factory are sources of pollution of surface and underground waters ...", "Rocks from the spoil heaps contain a variety of toxic heavy metals, leaching of which results in pollution of soils, surface and underground waters ...", "Very serious polluters ... are cesspools of mining waters and factory tailing ponds .. ., which in the event of the slightest disturbance of the hydro-insulation cause pollution of surface and ground waters ...", "The general area of soil subsidence is about 70 square kilometres [2] ... the deepest subsidence (up to 3.5 metres) corresponds to areas with the most mining activity ...", "During construction of the water inlets ... deep wells were drilled which reached those [mineralised] waters. All this inevitably affected the health of people living in the area, first of all the children ...", "Extremely high pollution levels ... were found in the hamlet of Vilshyna, not far from the coal- processing factory and mine no. 8 spoil heaps, in the wells of Mr T. and Mr Dubetskyy. We can testify that even the appearance of this water does not give grounds to consider it fit for any use. People from this community should be supplied with drinking- quality water or resettled ... ”", "16. In 2001 similar conclusions were proposed in a white paper published by Lviv State University.", "17. On 20 April 2000 the Chervonograd Sanitary Epidemiological Service (“the Sanitary Service”; Червоноградська міська санітарно ‑ епідеміологічна служба ) recorded a 5.2-fold excess of dust concentration and a 1.2-fold excess of soot concentration in ambient air samples taken 500 metres from the factory's chimney.", "18. On 1 August 2000 the Sanitary Service sampled water in the Vilshyna hamlet wells and found it did not meet safety standards. In particular, the concentration of nitrates exceeded the safety limits by three- to five-fold, the concentration of iron by five- to ten-fold and that of manganese by nine- to eleven-fold.", "19. On 16 August 2002 the Ministry of Ecology and Natural Resources ( Міністерство екології та природних ресурсів ) acknowledged in a letter to the applicants that mining activities were of major environmental concern for the entire Chervonograd region. They caused soil subsidence and flooding. Heavy metals from mining waste penetrated the soil and ground waters. The level of pollution of the soil by heavy metals was up to ten times the permissible concentration, in particular in Silets village, especially on account of the operation of the factory and the mine.", "20. On 28 May 2003 factory officials and the Chervonograd Coal Industry Inspectorate ( Червоноградська гірничо-технічна інспекція з нагляду у вугільній промисловості ) recorded infiltration of water from the foot of the factory's spoil heap on the side facing Vilshyna hamlet. They noted that water flowing from the heap had accumulated into one hectare of brownish salty lake.", "21. In 2004 the Zakhidukrgeologiya company published a study entitled “Hydrogeological Conclusion concerning the Condition of Underground Waters in the Area of Mezhyriccha Village and Vilshyna Hamlet ”, according to which in the geological composition of the area there were water-bearing layers of sand. The study also indicated that even before the beginning of the mining works the upper water-bearing layers were contaminated with sodium and compounds thereof as well as iron in the river valleys. However, exploitation of the mines added pollution to underground waters, especially their upper layers.", "22. On 14 June 2004 the Lviv Chief Medical Officer for Health ( Головний державний санітарний лікар Львівської області ) noted that air samples had revealed dust and soot exceeding the maximum permissible concentrations 350 metres from the factory, and imposed administrative sanctions on the person in charge of the factory's boiler.", "23. In September 2005 Dr Mark Chernaik of the Environmental Law Alliance Worldwide reported that the concentration of soot in ambient air samples taken in Vilshyna hamlet was 1.5 times higher than the maximum permissible concentration under domestic standards. The well water was contaminated with mercury and cadmium, exceeding domestic safety standards twenty-five - fold and fourfold respectively. According to the report, the hamlet inhabitants were exposed to higher risks of cancer and respiratory and kidney diseases.", "2. The applicants'accounts of damage sustained by them on account of the mine and factory operation", "24. The applicants first submitted that their houses had sustained damage as a result of soil subsidence caused by mining activities and presented an acknowledgement of this signed by the mine's director on 1 January 1999. According to the applicants, the mine promised to pay for the repair of their houses but never did so.", "25. Secondly, the applicants alleged that they were continuing to suffer from a lack of drinkable water. They contended that until 2009 the hamlet had no access to a mains water supply. Using the local well and stream water for washing and cooking purposes caused itching and intestinal infections. The applicants presented three photographs reportedly of the water available to them near their home. One photo entitled “water in a well in Vilshyna hamlet ” pictured a bucket full of yellow-orange water near a well. The second photo entitled “a stream near the house” pictured a small stream of a bright orange colour. The third photo entitled “ destruction of plant life by water from the coal-processing factory waste heap” depicted a brownish lake with many stumps and several dead bushes in the middle of it.", "26. The applicants further contended that from 2003 the Lvivsystemenergo CJSC had been bringing, at its own expense, drinkable water into the hamlet by truck and tractor. However, this water was not provided in sufficient quantity. In evidence of this statement, the applicants presented a photograph picturing five large buckets of water and entitled “ weekly water supply ”.", "27. The applicants further alleged that the water supply was not always regular. In support of this argument they produced letters from the Sokalskyy District Administration dated 9 July 2002 and 7 March 2006, acknowledging recent irregularities in supply of drinking water.", "28. Thirdly, some of the applicants were alleged to have developed chronic health conditions associated with the factory operation, especially with air pollution. They presented medical certificates which stated that Olga Dubetska and Alla Vakiv were suffering from chronic bronchitis and emphysema and that Ganna Gavrylyuk had been diagnosed with carcinoma.", "29. Fourthly, the applicants contended that their frustration with environmental factors affected communication between family members. In particular, lack of clean water for washing reportedly caused difficulties in relations between spouses. Younger family members sought to break away from the older ones in search of better conditions for their growing children.", "30. The applicants, however, did not relocate. They alleged that they would not be able to sell houses located in a contaminated area or to find other sources of funding for relocation to a safer community without State support. In evidence, the applicants presented a letter from a private real estate agency, S., dated September 2009, stating the following:", "“since in Vilshyna hamlet ... there has been no demand for residential housing for the past ten years because of the situation of this hamlet in technogenically polluted territory and subsidence of soil on its territory ... it is not possible to determine the market value of the house.”", "C. Administrative decisions addressing the harmful effects of the factory and mine operation", "1. Decisions aimed at improving the environmental situation in the region", "31. In November 1995 the Sanitary Service ordered the factory to develop a plan for management of the buffer zone.", "32. On 5 June 1996 the Sanitary Service found that the factory had failed to comply with its order and ordered suspension of its operation. In spite of this measure, the factory reportedly continued to operate, with no further sanctions being imposed on its management.", "33. On 7 April 2000 and 12 June 2002 the State Commission for Technogenic and Ecological Safety and Emergencies (“The Ecological Safety Commission”; Державна комісія з питань техногенно ‑ екологічної безпеки та надзвичайних ситуацій ) ordered a number of measures to improve water management and tackle soil pollution in the vicinity of the factory.", "34. On 14 April 2003 the Lviv Regional Administration ( Львівська обласна державна адміністрація ) noted that the overall environmental situation had not improved since the Ecological Safety Commission's decision of 7 April 2000, as no funds had been allocated by the State Budget for implementation of the relevant measures.", "35. On 27 January 2004 the Sanitary Service found that the mine had failed to comply with its instruction of 4 December 2003 as to the development of a plan for management of the buffer zone, and ordered suspension of its operation. However, the mine reportedly continued to operate.", "36. On 13 July 2005 the Marzeyev State Institute for Hygiene and Medical Ecology ( Інститут гігієни та медичної екології ім. О. М. Марзеєва АМН України ) developed a management plan for the factory buffer zone. The authors of the report acknowledged that the factory was polluting the air with nitrogen dioxide, carbon oxide, sulphuric anhydride and dust. They noted, however, that according to their studies ambient air samples taken more than 300 metres from the factory did not contain excessive pollution. The plan provided for implementation of a number of measures aimed at improvement of the hydro-insulation of the spoil heap, as well as reduction of its height to 50 metres. The authors concluded that in view of such measures it was possible to establish a general buffer zone at 300 metres for the entire factory site.", "37. Later in the year the Ministry of Health ( Міністерство охорони здоров'я ) approved the Marzeyev Institute's plan, on an assumption that the height of the spoil heap would be reduced by August 2008.", "38. On 29 April 2009 the Sanitary Service fined the factory director for failing to implement the measures in the factory buffer zone management plan.", "2. Decisions concerning the applicants'resettlement", "39. On 20 December 1994 the Sokalskyy Executive Committee noted that eighteen houses, including those of the applicants, were located within the factory spoil heap 500-metre buffer zone, in violation of applicable sanitary norms. It further allowed the Ukrzakhidvugillya company to resettle the inhabitants and to have these houses demolished. The Committee further obliged the company director to provide the applicants with housing by December 1996. This decision was not enforced.", "40. In 1995 the Sokalskyy Executive Committee amended its decision and allowed the residents to keep their former houses following resettlement for recreational and gardening use.", "41. On 7 April 2000 the Ecological Safety Commission noted that eighteen families lived within the limits of the factory buffer zone and commissioned the Ministry of Fuel and Energy and local executive authorities to ensure their resettlement in 2000-2001. The names of the families appear not to have been listed.", "42. In December 2000 and 2001 the applicants enquired of the Ministry of Fuel and Energy when they would be resettled and received no answer.", "43. In 2001 the Lviv Regional Administration included resettlement of eighteen families (names not listed) from the factory sanitary security zone in their annual activity plan, indicating the State budget as the funding source and referring to the Ecological Safety Commission's decision of 7 April 2000.", "44. On 12 June 2002 the Ecological Safety Commission noted that its decision of 7 April 2000 remained unenforced and ordered the Sokalskyy District Administration, the Silets Village Council and the factory to work together to ensure the resettlement of families from the factory spoil heap buffer zone by the end of 2003.", "45. In June 2002 the applicants, along with other village residents, complained to the President of Ukraine about the non-enforcement of the decisions concerning their resettlement. The President's Administration redirected their complaint to the Lviv Regional Administration and the Ministry of Ecology and Natural Resources for consideration.", "46. On 16 August 2002 the Ministry of Ecology and Natural Resources informed the Vilshyna inhabitants in response to their complaint that it had proposed that the Cabinet of Ministers ensure prompt resettlement of the inhabitants from the factory buffer zone in accordance with the decision of the Ecological Safety Commission of 7 April 2000.", "47. On 14 April 2003 the Lviv Regional Administration informed the applicants that it had repeatedly requested the Prime Minister and the Ministry of Fuel and Energy to provide funding for the enforcement of the decision of 7 April 2000.", "D. Civil actions concerning the applicants'resettlement", "1. Proceeding brought by the Dubetska- Nayda family", "48. On 23 July 2002 the Dubetska -Nayda family instituted civil proceedings in the Chervonograd Court ( Місцевий суд м. Червонограда ) seeking to oblige the factory to resettle them from its buffer zone. Subsequently the Lvivvugillya State Company was summoned as a co ‑ defendant.", "49. The first hearing was scheduled for 28 October 2003. Subsequent hearings were scheduled for 12 November and 18 December 2003, 26 and 30 April, 18 May, 18 and 30 June, 19 July and 22 December 2004, and 25 November, 6, 20 and 26 December 2005. On some four occasions hearings were adjourned on account of a defendant's absence or following a defendant's request for an adjournment.", "50. On 26 December 2005 the Chervonograd Court found that the plaintiffs resided in the mine's buffer zone and ordered the Lvivvugillya State Company holding it to resettle them. It further dismissed the applicants'claims against the factory, finding that their house was outside its 300-metre buffer zone.", "51. This judgment was not appealed against and became final.", "52. On 3 May 2006 the Chervonograd Bailiffs'Service initiated enforcement proceedings.", "53. On 19 June 2006 the Bailiffs fined the mine's director for failing to ensure the enforcement of the judgment. The latter appealed against this decision.", "54. On 26 June 2006 the director informed the Bailiffs that the mine could not comply with the judgment. It neither had available residential housing at its disposal nor was it engaged in constructing housing, as it had received no appropriate allocations from the State budget.", "55. The judgment remains unenforced to the present date.", "2. Proceedings brought by the Gavrylyuk -Vakiv family", "56. On 23 July 2002 the Gavrylyuk- Vakiv family, similarly to the Dubetska-Nayda family, instituted civil proceedings at Chervonograd Court seeking to be resettled outside the factory buffer zone.", "57. Subsequently the factory was replaced by the Lvivsystemenergo CJSC as a defendant in the proceedings.", "58. The first hearing was scheduled for 29 September 2003. Subsequent hearings were scheduled for 6, 17 and 30 October 2003, and 15 and 30 April, 18 May, 18 and 21 June 2004.", "59. On 21 June 2004 Chervonograd Court dismissed the applicants'claims. The court found, in particular that, although the plan for management of the factory buffer zone was still under way, there were sufficient studies to justify the 300-metre zone. As the plaintiffs'house was located outside it, the defendant could not be obliged to resettle them. Moreover, the defendant had no funds to provide the applicants with new housing. The court found the decision of 1994 concerning the applicants'resettlement irrelevant and did not comment on subsequent decisions concerning the matter.", "60. On 20 July 2004 the applicants appealed. They maintained, in particular, that the law provided that the actual concentration of pollutants on the outside boundaries of the zone should meet applicable safety standards. In their case, the actual level of pollution outside the zone exceeded such standards, as evidenced by a number of studies, referring to the factory operation as the major source of pollution. Furthermore, the decision of the Sokalskyy Executive Committee of 1994 could not have been irrelevant, as it remained formally in force.", "61. On 28 March 2005 the Lviv Regional Court of Appeal ( Апеляційний суд Львівської області ) upheld the previous judgment and agreed with the trial court's reasoning. In response to the applicants'arguments concerning the actual pollution level at their place of residence, the court noted that the hamlet was supplied with imported water and that in any event, while the applicable law included penalties against polluters, it did not impose a general obligation on them to resettle individuals.", "62. On 23 April 2005 the applicants appealed on points of law, relying on essentially the same arguments as in their previous appeal.", "63. On 17 September 2007 the Khmelnytskyy Regional Court of Appeal ( Апеляційний суд Хмельницької області ) dismissed the applicants'request for leave to appeal on points of law." ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution of Ukraine", "64. Relevant provisions of the Constitution read as follows:", "Article 16", "“ To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State. ”", "Article 50", "“Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ... ”", "B. Law of Ukraine “ On Local Councils of People's Deputies and Local and Regional Self-Government” of 7 December 1990 (repealed with effect from 21 May 1 997)", "65. According to Article 57 of the Law, private and public entities and individuals could be held liable under the law for failure to comply with lawful decisions of bodies of regional self-government (which included executive committees of district councils).", "66. Subsequent legislation concerning local self-government did not envisage the existence of such a body as an executive committee of a district council.", "C. Law of Ukraine “On Waste” of 5 March 1998", "67. Relevant provisions of the Law “On Waste” read as follows:", "Section 9. Property rights to waste", "“ The State is the owner of waste produced on State property. .. On behalf of the State the management of waste owned by the State shall be carried out by the Cabinet of Ministers. ”", "D. Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises” of 23 June 2005", "68. The above Law introduced a new mechanism for payment and amortisation of companies'debts for energy resources. It also introduced a special register of companies involved in debt payment and amortisation under its provisions. A company's presence on that register suspends any enforcement proceedings against it; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company.", "E. Order of the Ministry of Health No. 173 of 19 June 1996 “On Approval of the State Sanitary Rules concerning Planning and Construction of Populated Communities”", "69. Relevant provisions of the Order of the Ministry of Health read as follows:", "“ 5.4. Industrial, agricultural and other objects, which are sources of environmental pollution with chemical, physical and biological factors, in the event that it is impossible to create wasteless technologies, should be separated from residential areas by sanitary security zones.", "...", "On the exterior boundary of a sanitary security zone which faces a residential area, concentrations and levels of harmful substances should not be greater than those set down in the relevant hygiene standards (maximum permissible concentrations, maximum permissible levels) ...", "5.5. ...", "In the event the studies do not confirm the statutory sanitary security zone or its establishment is not possible under particular circumstances, it is necessary to take a decision concerning a change of production technology, which would provide for decrease in emission of harmful substances into the atmosphere, its re-profiling or closure.", "Supplement No. 4, Sanitary classification of enterprises, production facilities and buildings and their required sanitary security zones :", "... ..", "A sanitary security zone of 500 metres [shall surround the following facilities]:", "....", "5. Spoil heaps of mines which are being exploited, inactive spoil heaps exceeding 30 metres in height which are susceptible to combustion; inactive spoil heaps exceeding 50 metres in height which are not susceptible to combustion.", "A sanitary security zone of 300 metres [shall surround the following facilities]:", "...", "5. ... coal-processing factories using wet treatment technology", "6. ... inactive spoil heaps of mines, less than 50 metres in height and not susceptible to combustion. ”", "THE LAW", "I. SCOPE OF THE CASE", "70. On 18 September 2009 the applicants'representative informed the Court that applicant Mr Arkadiy Gavrylyuk had died. She further requested that his claims be excluded from consideration.", "71. The Court considers that, in the absence of any heir expressing the wish to take over and continue the application on behalf of Mr Arkadiy Gavrylyuk, there are no special circumstances in the case affecting respect for human rights as defined in the Convention and requiring further examination of the application under Article 37 § 1 in fine of the Convention (see, for example, Pukhigova v. Russia, no. 15440/05, §§ 106 ‑ 107, 2 July 2009 and Goranda v. Romania (dec.), no. 38090/03, 25 May 2010).", "72. In view of the above, it is appropriate to strike the complaints lodged by Mr Arkadiy Gavrylyuk out of the list.", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "73. The applicants complained that the State authorities had failed to protect their home, private and family life from excessive pollution generated by two State-owned industrial facilities. They relied on Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. Submissions by the parties", "(a) The Government", "74. The Government submitted that the application was inadmissible ratione temporis in so far as it related to the facts predating 11 September 1997, the date of entry of the Convention into force with respect to Ukraine.", "75. They further submitted that the Gavrylyuk- Vakiv family could not claim to be victims of any violations of Article 8 as in 1959 they had unlawfully constructed their house on the land, which was formally allocated to them only a year later. Moreover, in breach of the law in force at the material time, this family had never requested authorisation of the mining authorities to construct their house on the land above the mine. As the Gavrylyuk-Vakiv family had deliberately constructed their house on land under industrial development and in so doing acted in violation of applicable law, they could not claim that the State had any obligations relating to respect for their Article 8 rights while they lived in this house. Their complaints were therefore inadmissible ratione personae.", "76. The Government also submitted as an alternative that the Gavrylyuk ‑ Vakiv family's complaints were manifestly ill-founded, as their family lived outside the statutory buffer zones of both the mine and the factory, and their resettlement claim was rejected by a competent court at the close of adversary proceedings. These applicants had therefore not made out an arguable Convention claim.", "77. Finally, the Government contended that none of the applicants had exhausted available domestic remedies. In particular, they had never claimed compensation from either the mine or the factory for any damage allegedly sustained on account of their industrial activity.", "(b) The applicants", "78. The applicants disagreed. They noted that while the situation complained about had started before the entry of the Convention into force with respect to Ukraine, it continued afterwards and up to the present day. In particular, the Sokalskyy Executive Committee's decision to resettle them had not been formally quashed and was in force by the date of the Convention's entry into effect. So the competent authorities were responsible for its non-enforcement, as well as for the non-enforcement of the subsequent decision of the Ecological Safety Commission concerning the applicants'resettlement and the Chervonograd Court's judgment in the Dubetska-Nayda family's favour. Likewise, the State bore responsibility for failure to enforce the buffer zone management plans for the mine and the factory leading to environmental deterioration in the area, where the applicants lived.", "79. The applicants further submitted that the Gavrylyuk-Vakiv family had constructed their house lawfully, on land duly allocated for this purpose, while in 1960 they had been given extra land for gardening. The Government's submission that they had to seek the mining authorities'permission to build a house was not based on law. Also, by the time the Convention entered into force in respect of Ukraine, their house had been properly registered with the authorities, as evidenced by the property certificate provided by them to the Court.", "80. The applicants further contended that the fact that the Chervonograd Court had dismissed the Gavrylyuk-Vakiv family's resettlement claim did not render their application manifestly ill-founded, regard being had to the actual excessive levels of pollution in the vicinity of their home. In rejecting their claim for resettlement the courts had relied on the prospective improvements anticipated following implementation of the buffer zone management plan for the factory. As the plan remained unimplemented, this group of applicants continued to suffer from excessive pollution and their claim was therefore not manifestly ill-founded.", "81. Finally, the applicants alleged that they had properly exhausted domestic remedies, as they aired their complaints through domestic courts and referred to environmental pollution as the reason to claim resettlement.", "2. The Court's assessment", "82. In so far as the Government alleged partial inadmissibility of the application as falling outside the scope of the Court's temporal jurisdiction, the Court considers itself not competent ratione temporis to examine the State actions or omissions in addressing the applicants'situation prior to the date of the entry of the Convention into force with respect to Ukraine (11 September 1997). It is however competent to examine the applicants'complaints, which relate to the period after this date (see, mutatis mutandis, Fadeyeva v. Russia, no. 55723/00, § 82, ECHR 2005 ‑ IV ).", "83. As regards the Government's allegation that the complaints lodged by the Gavrylyuk-Vakiv family are incompatible with the Convention ratione personae, the Court notes, firstly, that Article 8 of the Convention applies regardless of whether an applicant's home has been built or occupied lawfully (see, among other authorities, Prokopovich v. Russia, no. 58255/00, § 36, ECHR 2004 ‑ XI (extracts) ). Moreover, it notes that irrespective of whether the house at issue was lawfully constructed or regularised after the family had settled in it, by 11 September 1997, when the Convention entered into force with respect to Ukraine, the Gavrylyuk ‑ Vakiv family was occupying it lawfully. This fact is not disputed between the parties. In light of the above the Government's objection should be dismissed.", "84. As regards the Government's allegation that the Gavrylyuk-Vakiv family's claims were manifestly ill-founded as their resettlement claim had been rejected in domestic proceedings, the Court agrees that it is not in a position to substitute its own judgment for that of the national courts and its power to review compliance with domestic law is limited ( see, among other authorities, Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003 ‑ X and Paulić v. Croatia, no. 3572/06, § 39, 22 October 2009 ). It is the Court's function, however, to review the reasoning adduced by domestic judicial authorities from the point of view of the Convention ( see Slivenko, cited above, ibid.). Furthermore, the Court notes that the Gavrylyuk- Vakiv family's complaint is not limited to the alleged unfairness of the judgments dismissing their resettlement claim. It concerns a general failure of the State to remedy their suffering from adverse environmental effect of pollution in their area. The Government's objection must therefore be dismissed.", "85. Finally, as regards the non-exhaustion objection, the Court notes that the Government have not presented any examples of domestic court practice whereby an individual's claim for compensation against an industrial pollutant would be allowed in a situation similar to that of the applicants. Furthermore, both applicant families in the present case chose to exhaust domestic remedies with respect to their claim to be resettled from the area, permanently affected by pollution. One family obtained a resettlement order, which however remains unenforced as the debtor mine lacks budgetary allocations for it, and the other's claim was dismissed on the grounds that it lived outside the pollutants'statutory buffer zone. In view of all the above the Court has doubts concerning the applicants'prospects of success in compensation proceedings.", "86. Even assuming, however, that such compensation could be awarded to them for past pollution and paid in good time, the Court notes that the applicants complain about continuing pollution, curtailing which for the future appears to necessitate some structural solutions. It is not obvious how the compensatory measure proposed by the Government would address this matter. In light of the above, the Court dismisses the non-exhaustion objection.", "87. In conclusion, the Court notes that the application raises serious issues of fact and law under the Convention, the determination of which must be reserved to an examination of the merits. The application cannot therefore be declared manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. The Court, therefore, declares the application admissible.", "B. Merits", "1. Applicability of Article 8 of the Convention", "(a) Submissions by the parties", "( i ) The applicants", "88. The applicants submitted that they were suffering from serious State interference with their rights guaranteed by Article 8 of the Convention, on account of environmental pollution emanating from the State-owned mine and factory ( in particular their spoil heaps ), as well as from the State's failure to cope with its positive obligation to regulate hazardous industrial activity.", "89. The applicants further noted that they had set up their present homes lawfully, before they could possibly have known that the area would fall within the legislative industrial buffer zone and would be environmentally unsafe.", "90. The applicants next alleged that the Government's plan approving the 300-metre buffer zone around the factory was controversial, as operation of the spoil heap required a 500-metre buffer zone. The plan at issue had not been approved by the State Medical Officer for Health until it had previewed the measures for decreasing the height of the waste heap to 50 metres and hydro-insulating it, which has not been done so far. They considered, therefore, that they continued to live within the scientifically justifiable buffer zone of the waste heap.", "91. The applicants further contended that not only their houses were located within the zone formally designated by the law as inappropriate for habitation, but there was considerable evidence that the actual air, water and soil pollution levels in the vicinity of their homes were unsafe and were such as could increase the applicants'vulnerability to pollution-associated diseases. In this regard they referred to various Governmental and non-governmental reports and surveys discussed in paragraphs 13-23 above.", "92. The applicants additionally noted that other hazards included flooding of the nearby areas and soil subsidence caused by mining activities. They alleged that regard being had to the existence of numerous underground caverns dug out in the course of mining operations these hazards would exist even if no new mining activities took place.", "93. In the meantime, the applicants were unable to relocate without the State's assistance, as on account of industrial pollution there was no demand for real estate in their hamlet and they were not capable of finding other sources of funding for relocation.", "94. Finally, the applicants noted that the State being the owner of the factory for numerous years and remaining at present the owner of its spoil heap as well as the owner of the mine, was fully aware of and responsible for the damage caused by their everyday operations, which had been going on for a long time. It therefore had responsibility under Article 8 of the Convention to take appropriate measures to alleviate the applicants'burden.", "( ii ) The Government", "95. The Government did not dispute that they had Convention responsibility for addressing environmental concerns associated with the mine and the factory operation.", "96. On the other hand, they contested the applicants'submissions as regards the damage suffered by them on account of alleged pollution. In particular, the Government submitted that, as regards the pollution emitted by the factory, its levels were generally safe outside the 300-metre zone around it, as confirmed by numerous studies. It is in view of these studies that the 300-metre buffer zone around the factory was approved by the relevant authorities in 2005. The applicants'houses, located 430 and 42 0 metres from the factory, should accordingly have been safe, regardless of whether the buffer zone plans had formally been put in place. Although occasional incidents of increased emissions might have taken place, they were promptly monitored and appropriate measures to decrease them were applied in good time, as evidenced, for instance, by the sanctions imposed on the factory management (see paragraphs 32 and 3 5 above ).", "97. The Government further submitted that although the Dubetska ‑ Nayda family lived within the boundaries of the mine spoil heap's buffer zone, they, like the Gavrylyuk-Vakiv family, which lived outside the buffer zones of either the mine or the factory, had failed to substantiate any actual damage sustained on account of their proximity to both industrial facilities.", "98. As regards the applicants'reference to several chronic diseases suffered by some of them, these could well be associated with their occupational activities and other factors.", "99. As regards soil subsidence and flooding, the Government referred to geological studies which determined that the mountainous area in which the applicants lived had layers of water-bearing sands underneath the surface, susceptible to flotation. Based on these studies, the Government alleged that it could not be proved beyond reasonable doubt that the soil had subsided as a result of mining activities, rather than of a natural geological process.", "100. The Government next alleged that in so far as the applicants complained about the water quality, various studies, including the one done by the Zakhidukrgeologiya (see paragraph 15 above) scientifically proved that the chemical composition and purity of the underground water in the area was naturally unfavourable for household consumption, except when drilled for at a much deeper level than was done for the applicants'households. In addition, the applicants'wells were not equipped with the necessary filters and pipes. Moreover, the applicants were supplied with imported water. Finally, it was not in 2009, as suggested by the applicants (see paragraph 25 above), but in 2007 that a centralised aqueduct for the hamlet was put into operation.", "101. As regards the authorities'decisions on the applicants'resettlement, they were based on preventive rather than remedial considerations. The decision taken by the Sokalskyy Executive Committee had expired by 1997 in view of the change in economic circumstances. The decision at issue had been taken when enlargement of the factory was being contemplated, which called for the establishment of a 500 - metre buffer zone around it. If such a zone had been approved the applicants'houses would have been located within its boundaries, setting in motion the legal provisions calling for their resettlement regardless of the actual level of pollution. However, by 1997 it had become clear that the enlarged zone would not be necessary and the 1994 decision automatically became invalid.", "102. Moreover, in 1995 the Sokalskyy Executive Committee had made amendments to its resettlement decision. Following requests from residents subject to resettlement, the Committee decided that there was no need to demolish their former houses, which could be used by them for recreational and gardening purposes. Several families who had been provided with alternative housing in 2000-03 as they lived within the 300- metre buffer zone, did in fact continue to use their previous houses, including for long periods, and refused to give them up.", "103. In the Government's view, this fact was evidence that the applicants'resettlement claims were in fact not based on the actual levels of pollution. The conclusion that the Gavrylyuk- Vakiv family's [3] resettlement was not necessary was likewise reasonably made by the national judicial authorities. As regards the Dubetska-Nayda family, their resettlement was ordered on the basis of formal statutory provisions and did not involve any assessment of the actual or potential damage involved. In any event, both families were free to apply to the authorities for placement on a waiting list for social housing, which they had never done.", "104. In sum, the applicants did not show that the operation of either the mine or the factory had infringed on their rights to an extent which would attract State responsibility under Article 8 of the Convention.", "( b ) The Court's assessment", "(i) The Court's jurisprudence", "105. The Court refers to its well-established case-law that neither Article 8 nor any other provision of the Convention guarantees the right to preservation of the natural environment as such (see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003-VI). Likewise, no issue will arise if the detriment complained of is negligible in comparison to the environmental hazards inherent in life in every modern city. However, an arguable claim under Article 8 may arise where an environmental hazard attains a level of severity resulting in significant impairment of the applicant's ability to enjoy his home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual's health or quality of life (see, among other authorities, Fadeyeva, cited above, §§ 68-69).", "106. While there is no doubt that industrial pollution may negatively affect public health in general and worsen the quality of an individual's life, it is often impossible to quantify its effects in each individual case. As regards health impairment for instance, it is hard to distinguish the effect of environmental hazards from the influence of other relevant factors, such as age, profession or personal lifestyle. “ Quality of life” in its turn is a subjective characteristic which hardly lends itself to a precise definition ( see Ledyayeva and Others v. Russia, nos. 5 3157/99, 53247/99, 53695/00 and 56850/00, § 90, 26 October 2006 ).", "107. Taking into consideration the evidentiary difficulties involved, the Court will primarily give regard to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case (see Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1291-93, §§ 74-77). As a basis for the analysis it may use, for instance, domestic legal provisions determining unsafe levels of pollution ( see Fadeyeva, cited above, § 87 ) and environmental studies commissioned by the authorities ( see Taşkın and Others v. Turkey, no. 46117/99, § §11 3 and 120, ECHR 2004 ‑ X ). Special attention will be paid by the Court to individual decisions taken by the authorities with respect to an applicant's particular situation, such as an undertaking to revoke a polluter's operating licence (see Taşkın and Others, cited above, § 112) or to resettle a resident away from a polluted area ( see Fadeyeva, cited above, § 86 ). However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation it has to assess the evidence in its entirety ( see Ledyayeva and Others, cited above, § 90 ). Further sources of evidence for consideration in addition to the applicant's personal accounts of events, will include, for instance, his medical certificates ( see Lars and Astrid Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008 ) as well as relevant reports, statements or studies made by private entities ( see Fadeyeva, cited above, § 85 ).", "108. In addition, in order to determine whether or not the State could be held responsible under Article 8 of the Convention, the Court must examine whether a situation was a result of a sudden and unexpected turn of events or, on the contrary, was long-standing and well known to the State authorities (see Fadeyeva, cited above, §§ 90-91); whether the State was or should have been aware that the hazard or the nuisance was affecting the applicant's private life (see López Ostra v. Spain, 9 December 1994, § § 52 ‑ 53, Series A no. 303 ‑ C) and to what extent the applicant contributed to creating this situation for himself and was in a position to remedy it without a prohibitive outlay ( see Ledyayeva, cited above, § 97 ).", "( ii ) Assessment of the facts in the present case", "109. The Court reiterates that the present case concerns an allegation of adverse effects on the applicants'Article 8 rights on account of industrial pollution emanating from two State-owned facilities – the Vizeyska coal mine and the Chervonogradska coal-processing factory (in particular, its waste heap, which is 60 metres high ).", "110. The applicants'submissions relate firstly to deterioration of their health on account of water, air and soil pollution by toxic substances in excess of permissible concentrations. In addition, these submissions likewise concern the worsening of the quality of life in view of the damage to the houses by soil subsidence and persistent difficulties in accessing non-contaminated water, which have adversely affected the applicants'daily routine and interactions between family members.", "111. In assessing to what extent the applicants'health was affected by the pollution complained about, the Court agrees with the Government that there is no evidence making it possible to establish quantifiable harm in the present case. It considers, however, that living in the area marked by pollution in clear excess of applicable safety standards exposed the applicants to an elevated risk to health.", "112. As regards the quality of the applicants'life, the Court notes the applicants'photographs of water and their accounts of their daily routine and communications (see paragraphs 24-30 above ), which appear to be palpably affected by environmental considerations.", "113. It notes that, as suggested by the Government, there may be different natural factors affecting the quality of water and causing soil subsidence in the applicants'case (see, for instance, paragraph 21 above ). Moreover, at the present time the issue of accessing fresh water appears to have been resolved by the recent opening of a centralised aqueduct. At the same time, the case file contains sufficient evidence that the operation of the mine and the factory (in particular their spoil heaps ) have contributed to the above problems for a number of years, at least to a certain extent.", "114. This extent appears to be not at all negligible, in particular as according to domestic legislation residential houses may not be located within the buffer zones of the mines and the spoil heaps are designated as a priori environmentally hazardous. It appears that according to the State Sanitary Rules, a “safe distance” from a house to a spoil heap exceeding 50 metres in height is estimated at 500 metres (see paragraph 69 above). The Dubetska-Nayda family's house is situated 100 metres from the mine spoil heap and 430 metres from the factory one. The Gavrylyuk-Vakiv family's house in its turn is situated 420 metres from the factory spoil heap.", "115. While agreeing with the Government that the statutory definitions do not necessarily reflect the actual levels of pollution to which the applicants were exposed, the Court notes that the applicants in the present case have presented a substantial amount of data in evidence that the actual excess of polluting substances within these distances from the facilities at issue has been recorded on a number of occasions (see paragraphs 17-18 and 22 -2 3 above).", "116. In deciding on whether the damage (or risk of damage) suffered by the applicants in the present case was such as to attract guarantees of Article 8, the Court also has regard to the fact that at various times the authorities considered resettling the applicants. The need to resettle the Dubetska- Nayda family was ultimately confirmed in a final judgment given by the Chervonograd Court on 26 December 2005.", "117. As regards the Gavrylyuk- Vakiv family, on 21 June 2004 the same court found their resettlement unnecessary. However, in its findings the judicial authorities relied on anticipation that the factory would promptly enforce the measures envisioned in its prospective buffer zone management plan. These measures included hydro-insulation of the spoil heap and decreasing its height to 50 metres (in which case, as noted by the applicants, a 300-metre buffer zone around the spoil heap would become permissible under domestic law). According to the case file materials, these measures have not yet been carried out.", "118. Consequently, it appears that for a period exceeding twelve years since the entry of the Convention into force in respect of Ukraine, the applicants were living permanently in an area which, according to both the legislative framework and empirical studies, was unsafe for residential use on account of air and water pollution and soil subsidence resulting from the operation of two State-owned industrial facilities.", "119. In these circumstances the Court considers that the environmental nuisance complained about attained the level of severity necessary to bring the complaint within the ambit of Article 8 of the Convention.", "120. In examining to what extent the State owed a duty to the applicants under this provision, the Court reiterates that the present case concerns pollution emanating from the daily operation of the State-owned Vizeyska coal mine and the Chervonogradska coal-processing factory, which was State-owned at least until 2007; its spoil heap has remained in State ownership to the present day. The State should have been, and in fact was, well aware of the environmental effects of the operation of these facilities, as these were the only large industries in the vicinity of the applicant families'households.", "121. The Court further notes that the applicants set up their present homes before the facilities were in operation and long before the actual effect of their operation on the environment could be determined.", "122. The Court also observes that, as the Government suggests, in principle the applicants remain free to move elsewhere. However, regard being had to the applicants'substantiated arguments concerning lack of demand for their houses located in the close proximity to major industrial pollutants, the Court is prepared to conclude that remedying their situation without State support may be a difficult task. Moreover, the Court considers that the applicants were not unreasonable in relying on the State, which owned both the polluters, to support their resettlement, especially since a promise to that effect was given to them as early as in 1994. As regards the Government's argument that the applicants could have applied for social housing, in the Court's view they presented no valid evidence that a general request of this sort would have been more effective than other efforts made by the applicants to obtain State housing, especially in view of the fact that the only formal reason for them to seek relocation was environmental pollution.", "123. In the Court's opinion the combination of all these factors shows a strong enough link between the pollutant emissions and the State to raise an issue of the State's responsibility under Article 8 of the Convention.", "124. It remains to be determined whether the State, in securing the applicants'rights, has struck a fair balance between the competing interests of the applicants and the community as a whole, as required by paragraph 2 of Article 8.", "2. Justification under Article 8 § 2 of the Convention", "( a ) Submissions by the parties", "(i) The applicants", "125. The applicants asserted that in addressing their environmental concerns the State had failed to strike a fair balance between their interests and those of the community.", "126. In particular, for the period of more than twelve years since the entry of the Convention into force with respect to Ukraine, the State authorities have failed either to bring the pollution levels under control or to resettle the applicants into a safer area.", "127. While some measures in respect of mitigating the applicants'hardship were taken at various times, they were inconsistent and insufficient to change the applicants'overall situation as well as marked by prohibitive delays.", "128. In particular, it was only in 2009 that the hamlet was provided with a centralised aqueduct. Until then drinking water, which was not available at all before 2003, was brought in small quantities by trucks and tractors at irregular intervals, sometimes as long as several months in winter. On several occasions the State authorities attempted to penalise the mine and the factory management for their failures to ensure safer pollution levels, but these punishments were negligible or remained unenforced ( such as the decision to suspend operation of the mine) and did not bring about any subsequent improvements.", "129. The applicants further submitted that, as regards their resettlement, the 1994 decision to this end was never officially revoked, remained in force and was confirmed in 2000 by the Ecological Safety Commission. The subsequent court decisions disregarding it were therefore unlawful. Moreover, in deciding that the applicants no longer lived in the factory buffer zone, the judicial authorities relied on its prospective plan for buffer zone management, envisioning a number of measures to ensure that living outside the 300-metre zone actually would become safe, including downsizing of the spoil heap to 50 metres and hydro-insulating it. However, as the zone management measures had remained unenforced, the applicants continued to live in an environmentally unsafe area.", "130. Moreover, the Dubetska-Nayda family's house was also located within the mine's buffer zone, which was confirmed by the judicial authorities in a final and binding decision of 26 December 2005 ordering this family's resettlement.", "131. Further, significant delays marked consideration of the applicants'claims by domestic judicial authorities. On many occasions the trial court failed to inform the applicants of hearing dates or unreasonably postponed hearings on account of defendants'absences.", "132. Finally, even though the Dubetska-Nayda family succeeded in obtaining a resettlement judgment, its effect was set at naught, as for some five years now it has remained unenforced. The prospects for its enforcement within foreseeable future were unpromising, regard being had, in particular, to the entry into force of the Law of Ukraine “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises”, which stalled the possibility of recovering debt from the Vizeyska mine.", "133. In sum, the applicants submitted that the State authorities had failed to act diligently and in good time in addressing their problems caused by pollution from the mine and the factory.", "( ii ) The Government", "134. The Government disagreed. They submitted that they had done everything in their power to ensure that people living near the mine and the factory, whose operation was admittedly connected with some environmental risks, were least affected by them.", "135. In particular, the State put in place a legislative framework to regulate the operation of industrial polluters, including the establishment of safe emission levels and buffer zones. It has kept a constant watch on compliance with pollution safety standards by the mine and the factory and, in the event of occasional failures, the management was promptly penalised and the problems addressed. As a result, within 300 metres of the factory the levels of pollution were actually usually within the limits statutorily recognised as safe. This fact, confirmed by rigorous empirical monitoring, enabled scientific substantiation of the 300-metre buffer zone plan around the factory. A plan for the mine was likewise developed, however, in view of the mine's eventual closure there was no need to approve it or put it in place.", "136. The Government further submitted that, as regards the applicants'resettlement claims, neither family had actually suffered damage or risk of damage from pollution such as to warrant their resettlement. As the 1994 decision, which had expired by 1997 in view of the economic challenges downsizing the factory's production levels instead of their anticipated increase, at no point in time from the entry of the Convention into force with respect to Ukraine to the present was the State responsible for the Gavrylyuk-Vakiv family's resettlement, as that family lived outside both buffer zones.", "137. As regards the Dubetska-Nayda family, the State was obliged to resettle them on statutory grounds by the Chervonograd Court's decision of 26 December 2005. While the State's obligation to enforce this judgment was not in dispute, delays were caused by the severe financial problems of the debtor mine as well as the mining sector nationwide. The mine was unprofitable and owed substantial amounts to various creditors, including salary arrears to its employees. It was therefore unable to pay its debts and was subject to liquidation. Attempting to tackle the nationwide critical situation in the fuel and energy sector, the State was forced to enact the Law “On Measures to Ensure the Stable Operation of Fuel and Energy Sector Enterprises”, suspending or restructuring debts of the enterprises in the industry. Although it was not clear when the judgment would be enforced, funds were being sought and provision of the family with housing had been included in the list of measures previewed in the course of the liquidation.", "138. In any event, both applicant families were given a judicial forum to handle their resettlement complaints. In so far as they complained that their court proceedings were lengthy, the delays were caused by the complexity of the subject and the search for the comprehensive evidence necessary to substantiate a reasoned and fair decision. In addition, some adjournments were on account of the applicants'failures to appear.", "139. Overall, the State, which was facing a complex task of balancing between environmental and economic concerns relating to the mine and the factory operation, had duly considered the applicants'interests against those of the community in addressing them.", "(b) The Court's assessment", "( i ) The Court's jurisprudence", "140. The Court reiterates that the principles applicable to an assessment of the State's responsibility under Article 8 of the Convention in environmental cases are broadly similar regardless of whether the case is analysed in terms of a direct interference or a positive duty to regulate private activities (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003 ‑ VIII, and Fadeyeva, cited above, §§ 89 and 94 ).", "141. In cases involving environmental issues, the State must be allowed a wide margin of appreciation and be left a choice between different ways and means of meeting its obligations. The ultimate question before the Court is, however, whether a State has succeeded in striking a fair balance between the competing interests of the individuals affected and the community as a whole (see Hatton and Others, cited above, § § 100, 119 and 123 ). In making such an assessment all the factors, including domestic legality, must be analysed in the context of a particular case (see ibid., § 120, and Fadeyeva, cited above, §§ 96-97 ).", "142. Where the complaints relate to State policy with respect to industrial polluters, as in the present case, it remains open to the Court to review the merits of the respective decisions and conclude that there has been a manifest error. However, the complexity of the issues involved with regard to environmental policymaking renders the Court's role primarily a subsidiary one. It must first examine whether the decision-making process was fair, and only in exceptional circumstances may it go beyond this line and revise the material conclusions of the domestic authorities (see Fadeyeva, cited above, § 105 ).", "143. In scrutinising the procedures at issue, the Court will examine whether the authorities conducted sufficient studies to evaluate the risks of a potentially hazardous activity (see Hatton and Others, cited above, § 128, and Giacomelli v. Italy, no. 59909/00, § 86, ECHR 2006 ‑ XII ), whether, on the basis of the information available, they have developed an adequate policy vis-à-vis polluters and whether all necessary measures have been taken to enforce this policy in good time (see Ledyayeva and Others, cited above, § 104, and Giacomelli, cited above, §§ 92 -9 3, ECHR 2006 ‑ ... ). The Court will likewise examine to what extent the individuals affected by the policy at issue were able to contribute to the decision-making, including access to the relevant information and ability to challenge the authorities'decisions in an effective way (see, mutatis mutandis, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 228, § 60; Hatton and Others, cited above, § 127; and Taşkın and Others, cited above, §119 ).", "144. As the Convention is intended to protect effective rights, not illusory ones, a fair balance between the various interests at stake may be upset not only where the regulations to protect the guaranteed rights are lacking, but also where they are not duly complied with (see Moreno Gómez v. Spain, no. 4143/02, § § 56 and 61, ECHR 2004 ‑ X). The procedural safeguards available to the applicant may be rendered inoperative and the State may be found liable under the Convention where a decision-making procedure is unjustifiably lengthy or where a decision taken as a result remains for an important period unenforced (see Taşkın and Others, cited above, §§ 124-25).", "145. Overall, the onus is on the State to justify, using detailed and rigorous data, a situation in which certain individuals bear a heavy burden on behalf of the rest of the community (see Fadeyeva, cited above, § 128).", "( ii ) Assessment of the facts in the present case", "146. The Court remarks that the authorities contemplated and conceived a number of measures aimed at minimising the harmful effects of the mine and the factory operation on the applicants'households. It should be noted, for instance, that the quality of the legislative framework concerning industrial pollution is not in dispute between the parties in the present case. Further, as suggested by the Government, the authorities regularly monitored the levels of actual pollution and designed various measures to minimise them, including imposing penalties on the mine and factory management for breaches and eventual development of a plan for maintenance of the factory buffer zone. In addition, the applicants were promised compensation for damage caused by soil subsidence and water was brought in at State expense. No later than 2009 a centralised aqueduct was built, which should relieve the applicants of the burdens associated with accessing drinking- quality water, a major issue raised in their application. Finally, as mentioned above, on numerous occasions the authorities considered resettling the applicants as a way of providing an effective solution to their environmental hardship.", "147. Notwithstanding the effort, for more than twelve years the State authorities have not been able to put in place an effective solution for the applicants'personal situation, which throughout this period has remained virtually the same.", "148. It is noted that on the date of the Convention's entry into force (11 September 1997) the applicants were living in close proximity to two major industrial polluters, which adversely and substantially affected their daily life. It appears that in order to fulfil their Convention obligations, the State authorities, who owned these polluters, contemplated two major policy choices vis-à-vis the applicants'situation – either to facilitate their relocation to a safer area or to mitigate the pollution effects in some way.", "149. Yet in 1994, before the Convention's entry into force, the Sokalskyy Executive Committee made the choice in favour of relocation. In the following period, however, the Government did not act promptly and consistently and did not back up this decision with the necessary resources to have it enforced. While according to the Government's observations the 1994 decision automatically lost its legal power by 1997 in view of the factory downsizing, the applicants were never officially informed of this, much less given a reference to the legal provision on the basis of which the decision at issue could have automatically lost its effect, in particular, in the absence of a new factory buffer zone management plan. Moreover, it appears that in April 2000 the 1994 decision was backed up by that of the Ecological Safety Commission, resolving to solicit State funding for the resettlement of eighteen families from the factory buffer zone. While the names of the families apparently remained unlisted, their number – eighteen - was the same as that mentioned in the 1994 decision. The Court therefore finds that the applicants could have reasonably expected to be among them. It was not until 21 June 2004 for the Gavrylyuk-Vakiv family and 26 December 2005 for the Dubetska-Nayda family that the applicants were formally declared to be living outside the prospective factory buffer zone and not entitled to relocation at State expense. It was also only on 26 December 2005 that the State authorities acknowledged their obligation under domestic law to resettle the Dubetska-Nayda family from the mine spoil heap buffer zone. The judicial proceedings, which lasted some three and a half years at one level of jurisdiction for the Dubetska-Nayda family and a little over five years at three levels of jurisdiction for the Gavrylyuk-Vakiv family, were marked by certain delays, in particular, on account of some significant intervals between hearings. Next, the decision given in the Dubetska-Nayda family's favour did not change the family's situation, as throughout the next five years and until now it has not been funded. Consequently, the Court remarks that for more than twelve years from the Convention's entry into force and up to now little or nothing has been done to help the applicants to move to a safer area.", "150. The Court considers that when it comes to the wide margin of appreciation available to the States in context of their environmental obligations under Article 8 of the Convention, it would be going too far to establish an applicant's general right to free new housing at the State's expense ( see Fadeyeva, cited above, § 133 ). The applicants'Article 8 complaints could also be remedied by duly addressing the environmental hazards.", "151. In the meantime, the Government's approach to tackling pollution in the present case has also been marked by numerous delays and inconsistent enforcement. A major measure contemplated by the Government in this regard during the period in question concerned the development of scientifically justified buffer zone management plans for the mine and the factory. This measure appears to have been mandatory under the applicable law, as at various times the public health authorities imposed sanctions on the facilities'management for failures to implement it, going as far as the suspension of their operating licences (see paragraphs 32 and 35 above). However, these suspensions apparently remained unenforced and neither the mine nor the factory has put in place a valid functioning buffer zone management plan as yet.", "152. Eight years since the entry of the Convention into force, in 2005, the factory had such plan developed. When dismissing the applicants'claims against the factory for resettlement, the judicial authorities pointed out that the applicants'rights should be duly protected by this plan, in particular, in view of the anticipated downsizing of the spoil heap and its hydro-insulation. However, these measures, envisioned by the plan as necessary in order to render the factory's operation harmless to the area outside the buffer zone, have still not been enforced more than five years later (see paragraph 38 above). There also appear to have been, at least until the launch of the aqueduct no later than in 2009, delays in supplying potable water to the hamlet, which resulted in considerable difficulties for the applicants. The applicants cannot therefore be said to have been duly protected from the environmental risks emanating from the factory operation.", "153. As regards the mine, in 2005 it went into liquidation without the zone management plan ever being finalised. It is unclear whether the mine has in fact ceased to operate at the present time. It appears, however, that the applicants in any event continue to be affected by its presence, in particular as they have not been compensated for damage caused by soil subsidence. In addition, the Dubetska-Nayda family lives within 100 metres of the mine's spoil heap, which needs environmental management regardless of whether it is still in use.", "154. In sum, it appears that during the entire period taken into consideration both the mine and the factory have functioned not in compliance with the applicable domestic environmental regulations and the Government have failed either to facilitate the applicants'relocation or to put in place a functioning policy to protect them from environmental risks associated with continuing to live within their immediate proximity.", "155. The Court appreciates that tackling environmental concerns associated with the operation of two major industrial polluters, which had apparently been malfunctioning from the start and piling up waste for over fifty years, was a complex task which required time and considerable resources, the more so in the context of these facilities'low profitability and nationwide economic difficulties, to which the Government have referred. At the same time, the Court notes that these industrial facilities were located in a rural area and the applicants belonged to a very small group of people (apparently not more than two dozen families) who lived nearby and were most seriously affected by pollution. In these circumstances the Government has failed to adduce sufficient explanation for their failure to either resettle the applicants or find some other kind of effective solution for their individual burden for more than twelve years.", "156. There has therefore been a breach of Article 8 of the Convention in the present case.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "157. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "1. Pecuniary damage", "158. The applicants claimed 28,000 euros (EUR) in respect of pecuniary damage. They alleged that this sum represented the purchase price of two comparable houses (one for each of the two applicant families) in the neighbouring area, not affected by pollution. They argued that they were entitled to this amount in damages, as their houses had lost market value and could not be sold on account of their unfavourable location.", "159. The Government submitted that these claims were exorbitant and unsubstantiated.", "160. In considering the applicants'claim for pecuniary damage, the Court would state that the violation complained of by the applicants is of a continuing nature. Throughout the period under consideration the applicants have been living in their houses and have never been deprived of them. Although during this time their private life was adversely affected by operation of two industrial facilities, nothing indicates that they incurred any expenses in this connection. Therefore, the applicants failed to substantiate any material loss.", "161. In so far as they allege that their houses have lost market value, the Court reiterates that the present application was lodged and examined under Article 8 of the Convention and not under Article 1 of Protocol no. 1, which protects property rights. There is therefore no causal link between the violation found and the loss of market value alleged.", "162. As regards future measures to be adopted by the Government in order to comply with the Court's finding of a violation of Article 8 of the Convention in the present case, the Court reiterates that the State obligation to enforce the final judgment in respect of the Dubetska-Nayda family is not in dispute. As regards the Gavrylyuk-Vakiv family, their resettlement to an ecologically safe area would be only one of many possible solutions. In any event, according to Article 41 of the Convention, by finding a violation of Article 8 in the present case the Court has established the Government's obligation to take appropriate measures to remedy the applicants'individual situation.", "2. Non-pecuniary damage", "163. In addition, the Dubetska-Nayda family claimed EUR 32,000 in non-pecuniary damage and the Gavrylyuk-Vakiv family claimed EUR 33,000 in this respect. The applicants alleged that these amounts represented compensation for their physical suffering in connection with living in an unsafe environment, as well as psychological distress on account of disruption of their daily routine, complications in interpersonal communication and frustration with making prolonged unsuccessful efforts to obtain redress from the public authorities.", "164. The Government submitted that the applicants should not be awarded any compensation.", "165. The Court is prepared to accept that the applicants'prolonged exposure to industrial pollution caused them much inconvenience, psychological distress and even a degree of physical suffering, and that they might well feel frustration on account of the authorities'response to their hardship – this is clear from the grounds on which the Court found a violation of Article 8. Taking into account various relevant factors, including the duration of the situation complained of, and making an assessment on an equitable basis, the Court awards the applicants the amounts claimed in respect of non-pecuniary damage in full.", "B. Costs and expenses", "166. The applicants did not submit any claim under this head. The Court therefore makes no award.", "C. Default interest", "167. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "A. Background", "8. The first applicant, Richard John Powell, is a director of a mining concern and lives with his family at Esher, Surrey, in a house which he bought in 1957. The property is situated several miles from Heathrow Airport, London. Since 1972 it has lain under a flight departure route from Heathrow in operation for about one third of the year, usually during the summer months. Following objections to the level of noise disturbance, the route was divided into two sections in 1975. At least until 1984 Mr Powell ’ s home fell just within the 35 Noise and Number Index (NNI) contour, which is considered to be a low noise-annoyance rating (see paragraph 10 below). About half a million other people live within this contour area. Since 1984 the house has been within a lower NNI contour.", "9. The second applicant, Michael Anthony Rayner, farms together with other members of his family lands situated in Colnbrook, Berkshire, which have been in his family for some generations. He lives in a bungalow at Colnbrook acquired by his family as part of its land-holding in 1952. The applicant took up residence there in 1961 on the occasion of his marriage. The bungalow is situated about one and a third miles west of, and in a direct line with, Heathrow ’ s northern runway. It is regularly overflown during the day and to a limited extent at night. It falls within a 60 NNI contour, which is regarded as an area of high noise-annoyance for residents. According to the statistics supplied by the Government, the average height of arriving aircraft over Mr Rayner ’ s property is 450 feet and the average height of departing aircraft varies between 1,235 and 2,365 feet according to aircraft type. About 6,500 people around Heathrow Airport experience a noise exposure equal to or greater than that suffered by Mr Rayner and his family.", "10. The NNI is a long-term average measure of noise exposure which is used in the United Kingdom to assess the disturbance from aircraft noise to communities near airports. It takes account of two features of the noise, namely the average noisiness and the number of aircraft heard during an average summer day. The flights which determine the NNI at any point on the ground are those which take place between 06.00 and 18.00 hours Greenwich Mean Time during the three busy summer months of mid-June to mid-September and which make a peak noise level exceeding 80 perceived noise decibels (PNdB) at that point. The purpose of the NNI is to represent community reaction to the level of aircraft noise so as to guide planning, development and noise control. Thus, the NNI is amongst the criteria applied in planning controls, so that land within the 35 to 39 NNI contours may be used for residential development, planning permission not being refused on noise grounds alone. However, land within the 40 to 50 NNI contours (moderate noise-annoyance zone) will not be given over to development, except for the infilling of existing built-up areas on condition that appropriate sound insulation is used. No development whatsoever is permitted within the 60 NNI and over contours (high noise-annoyance zone). It is to be noted that the NNI calculation reflects a logarithmic element in the PNdB scale, which has the result that every increase of 10 in that scale represents approximately a doubling of the loudness.", "B. The growth of Heathrow Airport", "11. Heathrow Airport was formally opened in May 1946. In 1952 the first scheduled air services using jet airliners were inaugurated. Three terminals were opened in 1955, 1961 and 1968. After a public inquiry which lasted for 24 weeks and heard 125 witnesses, a fourth terminal was opened in 1986. As regards future expansion, the Government ’ s policy, as stated in the 1985 \"Airports Policy\" White Paper, is that they are \"not prepared to make any commitments at this stage on the question of a fifth terminal at Heathrow but will keep the matter under review\" (Command Paper, Cmnd 9542, paragraph 5.19).", "12. Heathrow is one of the busiest international airports in the world. The Airport handled 3 million passengers in 1956, over one million passengers during the one month of July 1963, 22.4 million passengers on international routes and 4.4 million passengers on domestic routes in 1973, and 37.5 million passengers on international routes and 6.8 million passengers on domestic routes in 1988. There has been a corresponding increase in aircraft movements over the years. Over 22% of passengers use the airport as an interchange point. It is currently used by over 70 airlines and serves 200 destinations worldwide. It is the United Kingdom ’ s leading port in terms of visible trade and in 1988 handled cargo valued at £26.3 billion. Heathrow Airport contributes around £200 million to the United Kingdom ’ s balance of payments, provides direct employment for some 48,600 persons, in addition to the substantial number of workers employed locally in servicing the industry, and pays over £16 million in local rates and rents.", "C. Compensation measures", "13. Compensation for the loss of value of houses and land as a result of airport noise is provided for by the Land Compensation Act 1973. However, such compensation is payable only in respect of new or altered public works first brought into use after 16 October 1969. Intensification of an existing use is, for reasons of principle and practice, not compensatable. Mr Powell and Mr Rayner would have no entitlement to compensation under this Act, there being no relevant new or altered development in the case of Heathrow Airport.", "14. The British Airports Authority, being a public statutory body, did not have power to acquire property near an airport unless it could show that the acquisition of the property was necessary for the proper performance of its function. In December 1986, after the completion of the fourth terminal (see paragraph 11 above) and privatisation of the Authority, the successor company to the Authority announced a scheme for the purchase of noise-blighted properties close to Heathrow Airport. This scheme provided for purchase by the company of property severely affected by aircraft noise at Heathrow (within the 65 NNI contour) where the owner had acquired the property before 17 October 1969 and wished to sell but could not do so except at a deflated price. Claims had to be made between 1 January 1987 and 31 December 1988. By virtue of the contour limitation the applicants ’ properties were excluded from the scheme.", "15. An action will lie at common law for nuisance in respect of an activity which unreasonably interferes with the use and enjoyment of land, for example an activity causing annoyance through noise. If liability is established, damages may be awarded or, in certain circumstances, an injunction granted. However, the Noise Abatement Act 1960 specifically exempts aircraft noise from its protection. The liability of aircraft operators is further limited by section 76(1) of the Civil Aviation Act 1982, which reads:", "\"No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flights, so long as the provisions of any Air Navigation Order or of any orders under section 62 above have been duly complied with and there has been no breach of section 81 below.\"", "Section 76(2) of the 1982 Act in turn provides for strict liability - that is, liability without proof of intention or negligence - where material loss or damage to any person or property on land or water is caused by, inter alia, an aircraft in flight or an object falling from an aircraft. Provisions equivalent to section 76 existed in earlier civil aviation legislation (for example, section 9 of the Air Navigation Act 1920 and section 40 of the Civil Aviation Act 1949).", "Section 76 is comparable to Article 1 of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which reads:", "\"Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations.\" (United Nations Treaty Series, 1958, vol. 310, no. 4493, p. 182)", "As at January 1990, this Convention had been ratified by thirty-six States, including four members of the Council of Europe, namely Belgium, Italy, Luxembourg and Spain but not the United Kingdom.", "16. Section 76(1) of the 1982 Act does not exclude all liability on the part of aircraft operators for trespass and nuisance caused by aircraft in flight. In the first place, the exemption applies only in respect of aircraft flying at a reasonable height above the ground. What is reasonable is a question of fact depending on all relevant circumstances. Secondly, for the exemption to apply there must be compliance with the statutory provisions referred to in section 76(1). In practice this means the Air Navigation Order 1985 as amended, the Air Navigation (General) Regulations 1981 as amended, the Rules of the Air and Air Traffic Control Regulations 1985 as amended and, of especial importance in this connection, the Air Navigation (Noise Certification) Order 1987 (and the corresponding provisions of earlier orders and regulations applicable from time to time). Thus, if, for example, an aircraft flies in a manner which is not in accordance with the applicable regulations or takes off or lands in contravention of the Air Navigation (Noise Certification) Order, its operator will not be entitled to rely upon section 76 as a defence to any action for trespass or nuisance.", "D. Noise abatement measures", "17. The main forum for international co-operation seeking to make aircraft quieter is the International Civil Aviation Organisation (ICAO). The broad thrust of ICAO ’ s work has been towards the development of a series of standards, leading to the phasing out of aircraft unable to meet them. These standards are not operative within the ICAO member States unless and until they are given effect in national legislation. In the United Kingdom effect is given to them by means of an Air Navigation (Noise Certification) Order.", "Orders of 1970 and 1979 reflected the first ICAO standards developed concerning subsonic jet aircraft. A 1984 Order gave effect to new ICAO standards and to regulations based upon recommendations of the European Civil Aviation Conference. In doing so, the 1984 Order also implemented the requirements of the European Community Directives of 1979 and 1983 on \"Limitation of Noise Emission from Subsonic Aircraft\". It was, however, more stringent in its application inasmuch as non-compliant subsonic jets were banned from the domestic register twelve months earlier than required by the 1979 Directive. Orders of 1986 and 1987 introduced further ICAO standards.", "18. In structuring its landing charges, Heathrow Airport Limited has taken account of ICAO noise certification standards to encourage the use of quieter aircraft.", "19. Since 1971 restrictions have been placed on night movements of jets, with the aim of phasing out night flights of noisier aircraft. These measures have been adopted in the light of research into the relationship between aircraft noise and sleep disturbance and after consultation of all interested parties, including the Federation of Heathrow Anti-Noise Groups to which the applicants belong.", "20. Monitoring of aircraft noise on take-off from Heathrow Airport was first carried out in the early 1960 ’ s. Since 1974 automatic equipment, consisting of thirteen noise monitoring terminals linked to a central processing and control unit, has been used. The positioning of these terminals is designed to protect the first built-up area reached after take-off from noise levels in excess of the statutory limits of 110 PNdB by day (07.00-23.00 hours local time) and 102 PNdB by night (23.00-07.00 hours local time). In the event of an infringement of the noise limit, the Airport informs the airline by letter and sends a copy to the Department of Transport. According to the Government, the effect of recent bans on non-noise-certificated aircraft has been to keep the rate of compliance to around 99% by day and 98% by night. The Secretary of State is empowered by section 78 of the Civil Aviation Act to deny Heathrow ’ s facilities to operators who fail to comply with noise abatement measures, but to date it has not been found necessary to invoke this provision. On the other hand, night flight quotas have been reduced for infringing operators.", "21. Aircraft taking off from Heathrow Airport are statutorily required to remain on a small number of specified routes, known as noise preferential routes. These routes are designed to avoid as far as possible the major built-up areas.", "22. Approach procedures said to result in lower noise levels in comparison with traditional approach procedures are now standard practice. Furthermore, minimum height requirements on approach to land as well as on take-off are laid down in the regulations. In addition, since 1972 a system of regularly alternating the landing runway has been implemented at Heathrow during westerly operations, the main objective being to achieve a fair sharing of periods of relative quiet among the communities of West London affected by noise from landing aircraft.", "23. A helicopter link between Gatwick Airport and Heathrow Airport was introduced in 1978. However, after public inquiries in 1978, 1979, 1983 and 1985, the Secretary of State for Transport gave directions in June 1986 for the operator ’ s licence to be revoked for environmental reasons.", "24. Following earlier schemes in 1966, 1972, and 1975, a scheme for sound insulation of dwellings was introduced for Heathrow in 1980. Under this scheme, which cost the British Airports Authority approximately £19 million, over 16,000 house owners or occupiers applied for grants. The scheme concentrated on those localities that would still be experiencing comparatively high noise levels in the mid 1980 ’ s and on localities where there is the greatest degree of disturbance due to aircraft noise at night. Within this area the amount of grant provided was intended to cover 100% of the reasonable costs incurred. The boundary was based on the forecast 50 NNI contour for 1985 and the composite of the 95 PNdB noise footprint for quieter aircraft. 95 PNdB is the exterior noise level below which current evidence suggests that the average person in an uninsulated room is unlikely to be awakened. After consultation and in line with a commitment by the Government to review the boundaries once the actual noise climate was known, an extension scheme to include additional areas was brought into operation in April 1989 at an estimated cost of £11.25 million.", "In common with other persons living within the 60 NNI contour, Mr Rayner qualifies for a full noise-insulation grant." ]

[ "PROCEEDINGS BEFORE THE COMMISSION", "25. The application (no. 9310/81) was first lodged with the Commission on 31 December 1980 by the Federation of Heathrow Anti-Noise Groups. On 15 March 1984 the Commission rejected the Federation ’ s complaint, but the application was continued by Mr Powell and Mr Rayner, together with a third applicant whose claim has since been settled. In their application, they complained of excessive noise levels in connection with the operation of Heathrow Airport. They invoked Articles 6 § 1, 8 and 13 (art. 6-1, art. 8, art. 13) of the Convention and Article 1 of Protocol No. 1 (P1-1). On 17 October 1985 and 16 July 1986 respectively the cases of Mr Powell and Mr Rayner were declared admissible under Article 13 (art. 13) of the Convention but inadmissible for the rest.", "In its report adopted on 19 January 1989 (Article 31) (art. 31) the Commission expressed the opinion that there had been a violation of Article 13 (art. 13) of the Convention in relation to Mr Rayner ’ s claim under Article 8 (art. 8) of the Convention (by twelve votes to four), but not in relation to any of the other claims (unanimously as regards both applicants ’ grievances under Article 1 of Protocol No. 1 and Article 6 § 1 (P1-1, art. 6-1) of the Convention, by fifteen votes to one as regards Mr Powell ’ s grievance under Article 8 (art. 8) of the Convention). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [*].", "FINAL SUBMISSIONS MADE TO THE COURT", "26. At the public hearing on 27 September 1989 the applicants asked the Court \"to find that they have been the victims of a violation of Articles 6 and 8 (art. 6, art. 8) of the Convention and that the lack of any effective remedy before a national authority itself violates Article 13 (art. 13) of the Convention\".", "27. At the hearing the Government maintained the final conclusions in their memorial, whereby they requested the Court \"to decide and declare that there has been no violation of Article 13 (art. 13) of the Convention in relation to the claims of either applicant under Article 6 § 1 (art. 6-1) or Article 8 (art. 8) of the Convention or under Article 1 of Protocol No. 1 (P1-1)\". They also submitted that \"the applicants ’ attempts to re-open their complaints under Articles 6 and 8 (art. 6, art. 8) are ... entirely misconceived\".", "AS TO THE LAW", "I. SCOPE OF THE CASE BEFORE THE COURT", "28. In their application to the Commission Mr Powell and Mr Rayner alleged violation of their right to respect for their private life and their home (Article 8 of the Convention) (art. 8), of their right of property (Article 1 of Protocol No. 1) (P1-1), of their right of access to the courts in civil matters (Article 6 § 1 of the Convention) (art. 6-1) and of their right to an effective remedy under domestic law for alleged breaches of the Convention (Article 13 of the Convention) (art. 13).", "According to the terms of its decisions of 17 October 1985 and 16 July 1986 the Commission declared all these complaints inadmissible as being manifestly ill-founded with the exception of the complaint under Article 13 (art. 13) (see paragraph 25 above). Nonetheless, in the applicants ’ submission, \"the Court has jurisdiction to consider the alleged violations of Articles 8 and 6 (art. 8, art. 6), independently of the alleged violation of Article 13 (art. 13)\" (see paragraph 9 in fine of the applicants ’ memorial). The issue under Article 1 of Protocol No. 1 (P1-1) was not pursued after the admissibility stage.", "29. The compass of the case before the Court is delimited by the Commission ’ s decision on admissibility (see, as the most recent authority, the Kamasinski judgment of 19 December 1989, Series A no. 168, p. 30, § 59). The Court is \"precluded from reviewing on their merits ... the complaints rejected as manifestly ill-founded, but empowered to entertain those complaints which the Commission has declared admissible\" (see the Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 24, § 54). Whilst the Court is the master of the characterisation to be given in law to the facts submitted to its examination, the allegations of violation of Articles 6 and 8 (art. 6, art. 8) constituted separate complaints in their own right and not, as suggested by the applicants, mere legal submissions or arguments relating to the same facts as those underlying the allegation of violation of Article 13 (art. 13). Neither can it be inferred from the \"full consideration\" devoted by the Commission to Mr Rayner ’ s claim under Article 8 (art. 8) that this claim was in reality declared admissible but rejected on its merits.", "Accordingly the Court agrees with the Commission and the Government that it has no jurisdiction in the present case to rule on the grievances under Articles 6 and 8 (art. 6, art. 8), independently of their relevance within the context of Article 13 (art. 13).", "II. ALLEGED BREACH OF ARTICLE 13 (art. 13)", "30. The applicants contended that in respect of their claims under Articles 6 § 1 and 8 (art. 6-1, art. 8) of the Convention there was no domestic remedy as required by Article 13 (art. 13), which provides:", "\"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\"", "A. Introduction", "31. Article 13 (art. 13) has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as \"arguable\" in terms of the Convention (see, for example, the Boyle and Rice judgment previously cited, Series A no. 131, p. 23, § 52). In the present case each one of the claims of violation forming the basis of the applicants ’ complaints under Article 13 (art. 13) (the \"substantive\" claims) was declared inadmissible by the Commission as being \"manifestly ill-founded\" (Article 27 § 2 of the Convention - see paragraph 25 above) (art. 27-2).", "32. The majority of the Commission, however, drew a distinction between the notions of \"manifestly ill-founded\" and lack of \"arguability\". It was \"implicit in the Commission ’ s established case-law that the term ‘ manifestly ill-founded ’ extends further than the literal meaning of the word ‘ manifest ’ would suggest at first reading\" (see paragraph 59 of the report). Thus, some serious claims might give rise to a prima facie issue but, after \"full examination\" at the admissibility stage, ultimately be rejected as manifestly ill-founded notwithstanding their arguable character. The applicants agreed with this approach.", "For the Government and the minority of the Commission, on the other hand, it was inconsistent for the Commission to reach the conclusion that a substantive claim of violation was at one and the same time \"manifestly ill-founded\" for the purposes of Article 27 § 2 (art. 27-2) and \"arguable\" for the purposes of Article 13 (art. 13).", "33. As the Court stated in the Boyle and Rice judgment, \"on the ordinary meaning of the words, it is difficult to conceive how a claim that is ‘ manifestly ill-founded ’ can nevertheless be ‘ arguable ’, and vice versa\" (loc. cit., p. 24, § 54). Furthermore, Article 13 and Article 27 § 2 (art. 13, art. 27-2) are concerned, within their respective spheres, with the availability of remedies for the enforcement of the same Convention rights and freedoms. The coherence of this dual system of enforcement is at risk of being undermined if Article 13 (art. 13) is interpreted as requiring national law to make available an \"effective remedy\" for a grievance classified under Article 27 § 2 (art. 27-2) as being so weak as not to warrant examination on its merits at international level. Whatever threshold the Commission has set in its case-law for declaring claims \"manifestly ill-founded\" under Article 27 § 2 (art. 27-2), in principle it should set the same threshold in regard to the parallel notion of \"arguability\" under Article 13 (art. 13).", "This does not mean, however, that in the present case the Court is bound to hold Article 13 (art. 13) inapplicable solely as a result of the Commission ’ s decisions of 17 October 1985 and 16 July 1986 declaring the applicants ’ substantive claims under Articles 6 § 1 and 8 (art. 6-1, art. 8) to be manifestly ill-founded. Whilst those decisions as such are unreviewable, the Court is competent to take cognisance of all questions of fact and law arising in the context of the Article 13 (art. 13) complaints duly referred to it, including the \"arguability\" or not of each of the substantive claims (see the Boyle and Rice judgment previously cited, p. 24, § 54). In order to determine the latter question, the particular facts and the nature of the legal issues raised must be examined, notably in the light of the Commission ’ s admissibility decisions and the reasoning contained therein. In that connection, as the case of Boyle and Rice and the case of Plattform\" Ärzte für das Leben\" show, a claim is not necessarily rendered arguable because, before rejecting it as inadmissible, the Commission has devoted careful consideration to it and to its underlying facts (loc. cit., pp. 27-29, §§ 68-76, and pp. 30-31, §§ 79-83; and the Plattform\" Ärzte für das Leben\" judgment of 21 June 1988, Series A no. 139, pp. 11-13, §§ 28-39).", "B. The claim under Article 6 § 1 (art. 6-1)", "34. The applicants ’ claim under Article 6 § 1 (art. 6-1) was that their access to the courts for the determination of their \"civil rights and obligations\" was unjustifiably denied by section 76(1) of the Civil Aviation Act 1982, which sets out a statutory bar to bringing an action in nuisance in respect of aircraft noise (see paragraph 15 above). Article 6 § 1 (art. 6-1), in so far as relevant, provides:", "\"In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...\"", "35. In its admissibility decisions of 17 October 1985 and 16 July 1986 the Commission rejected the claim under Article 6 § 1 (art. 6-1) as manifestly ill-founded on the ground that the applicants had no \"civil right\" under English law to compensation for unreasonable noise nuisance caused by aircraft, other than that caused by aircraft flying in breach of aviation regulations. In its report the Commission further reasoned that no separate issue of an effective remedy could arise under Article 13 (art. 13) since its requirements were less strict than and absorbed by those of Article 6 § 1 (art. 6-1); and that, in so far as the applicants were contesting the compatibility of section 76(1) with the Convention, Article 13 (art. 13) did not guarantee a remedy allowing a Contracting State ’ s legislation to be challenged as such. It therefore concluded that there had been no violation of Article 13 (art. 13) under this head.", "The applicants replied that the Commission ’ s admissibility decisions were based on a misunderstanding of English law. They did have, they maintained, a right of action at common law to sue in nuisance on account of unreasonable noise levels, but they were denied a remedy to assert that right by virtue of section 76(1). The entitlement to bring an action against individual airline operators for flying in breach of the regulations or at an unreasonable height, which was left intact by section 76(1), was, in the applicants ’ submission, theoretical and illusory. They contended that the statutory bar created by section 76(1) infringed the principles enunciated by the Court in the Ashingdane case (see the judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57), in that it did not pursue a legitimate aim, it placed a disproportionate burden on the applicants and, as a result, it destroyed the very essence of their above-mentioned common-law right.", "The Government advanced arguments similar to those of the Commission. Further and in the alternative they contended that section 76(1) did not impair the very essence of the applicants ’ \"right to a court\" under Article 6 § 1 (art. 6-1) or transgress the principle of proportionality.", "36. The applicants ’ grievance under Article 6 § 1 (art. 6-1) is in essence directed against the limitation of liability set out in section 76(1) of the Civil Aviation Act 1982. Framed in this way their grievance does not bring into play Article 6 (art. 6) or Article 13 (art. 13). As the Commission pointed out in its admissibility decisions, the effect of section 76(1) is to exclude liability in nuisance with regard to the flight of aircraft in certain circumstances, with the result that the applicants cannot claim to have a substantive right under English law to obtain relief for exposure to aircraft noise in those circumstances. To this extent there is no \"civil right\" recognised under domestic law to attract the application of Article 6 § 1 (art. 6-1) (see the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 70, § 192). In any event Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority (ibid., p. 74, § 206).", "For the rest no arguable claim of violation of Article 6 § 1 (art. 6-1) can, in the Court ’ s view, be derived from the applicants ’ subsidiary assertion that the limited entitlement to sue permitted by section 76(1) is illusory. Access to the domestic courts is available to any person who considers that he has a cause of action in nuisance under English law. If a question of the application of section 76(1) arises, it will be for the courts to decide.", "Accordingly, there was no violation of Article 13 (art. 13) in respect of the applicants ’ claims under Article 6 § 1 (art. 6-1).", "C. The claim under Article 8 (art. 8)", "37. The applicants also maintained that, as a result of excessive noise generated by air traffic in and out of Heathrow Airport, they had each been victim of an unjustified interference by the United Kingdom with the right guaranteed to them under Article 8 (art. 8), which provides:", "\"1. Everyone has the right to respect for his private ... life [and] his home ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ....\"", "The applicants disputed the acceptability of the noise levels permitted by the air traffic regulations and the effectiveness of the Government ’ s measures to reduce noise exposure. In their submission, by virtue of section 76(1) of the Civil Aviation Act 1982 they were forced to endure, without legal redress, unreasonable disturbance caused by aircraft flying in accordance with the regulations. Although it was conceded that Mr Powell was less severely affected than Mr Rayner, both applicants contended that they had an \"arguable\" claim of violation of Article 8 (art. 8) for the purposes of Article 13 (art. 13).", "38. In its admissibility decision concerning Mr Powell the Commission left open whether the noise levels experienced by him (see paragraph 8 above) occasioned an interference with his right to respect for his private life and his home, within the meaning of paragraph 1 of Article 8 (art. 8-1), since, as it explained in its report (paragraph 56), it found \"ample justification\" in paragraph 2 (art. 8-2) for any resultant limitation on this right. In the opinion of the Commission, the facts of his case did not give rise to an arguable claim of breach of Article 8 (art. 8) or, consequently, to any entitlement to a remedy under Article 13 (art. 13).", "On the other hand, the Commission considered the facts of Mr Rayner ’ s case to be markedly different. In the words of the Delegate, in its admissibility decision the Commission found a \"clear interference\" which \"involved the Government ’ s positive obligations under Article 8 (art. 8)\", albeit an interference justified in a democratic society in the interests of the economic well-being of the country. It noted in its report that his home and farm were very close to and in the direct line of one of Heathrow Airport ’ s busy runways, that further development was prohibited in this area, which was classified as a high noise-annoyance zone, and that he had acquired his home before the major expansion of Heathrow Airport (see paragraphs 9 and 11 above). The \"careful consideration\" which had had to be given to Mr Rayner ’ s claim under Article 8 (art. 8) at the admissibility stage and the facts underlying it persuaded the Commission that it was an arguable claim for the purposes of Article 13 (art. 13). Being of the opinion that none of the available remedies (as to which, see paragraphs 13 to 16 and 24 above) could provide adequate redress for the claim, it concluded that there had been a violation of Article 13 (art. 13).", "39. The Government submitted in the first place that the facts disclosed no direct \"interference by a public authority\" with the applicants ’ right under Article 8 (art. 8), Heathrow Airport and the aircraft using it not being and never having been owned, controlled or operated by the Government or any agency of the Government. It was, they contended, not the negative but the positive obligations of the State under Article 8 (art. 8) which were in reality in issue; and there was no arguable ground for establishing any failure on the part of the Government to secure the right of either applicant to respect for his private life and his home.", "In their alternative submission, any interference with either applicant ’ s right guaranteed by paragraph 1 of Article 8 (art. 8-1) was, for the reasons given in the Commission ’ s admissibility decisions, clearly justified under paragraph 2 (art. 8-2).", "The Government therefore concluded that neither Mr Powell nor Mr Rayner had made out an arguable claim of violation of Article 8 (art. 8).", "40. In each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home have been adversely affected by the noise generated by aircraft using Heathrow Airport (see paragraphs 8 to 10 above). Article 8 (art. 8) is therefore a material provision in relation to both Mr Powell and Mr Rayner.", "41. Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 (art. 8-1) or in terms of an \"interference by a public authority\" to be justified in accordance with paragraph 2 (art. 8-2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see, for example, the Rees judgment of 17 October 1986, Series A no. 106, p. 15, § 37, as concerns paragraph 1 (art. 8-1), and the Leander judgment of 26 March 1987, Series A no. 116, p. 25, § 59, as concerns paragraph 2) (art. 8-2). Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8 (art. 8-1), \"in striking [the required] balance the aims mentioned in the second paragraph (art. 8-2) may be of a certain relevance\" (see the Rees judgment previously cited, loc. cit.).", "42. As the Commission pointed out in its admissibility decisions, the existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft have without question become necessary in the interests of a country ’ s economic well-being. According to the uncontested figures supplied by the Government, Heathrow Airport, which is one of the busiest airports in the world, occupies a position of central importance in international trade and communications and in the economy of the United Kingdom (see paragraph 12 above). The applicants themselves conceded that the operation of a major international airport pursued a legitimate aim and that the consequential negative impact on the environment could not be entirely eliminated.", "43. A number of measures have been introduced by the responsible authorities to control, abate and compensate for aircraft noise at and around Heathrow Airport, including aircraft noise certification, restrictions on night jet movements, noise monitoring, the introduction of noise preferential routes, runway alternation, noise-related landing charges, the revocation of the licence for the Gatwick/Heathrow helicopter link, a noise insulation grant scheme, and a scheme for the purchase of noise-blighted properties close to the Airport (see paragraphs 14 and 17-24 above). These measures, adopted progressively as a result of consultation of the different interests and people concerned, have taken due account of international standards established, developments in aircraft technology, and the varying levels of disturbance suffered by those living around Heathrow Airport.", "44. On the other hand, section 76(1) of the Civil Aviation Act 1982 limits the possibilities of legal redress open to the aggrieved person (see paragraph 15 above). However, it is to be noted that the exclusion of liability in nuisance is not absolute: it applies only in respect of aircraft flying at a reasonable height and in accordance with the relevant regulatory provisions, including the Air Navigation (Noise Certification) Order 1987 (see paragraph 16 above).", "Since a forerunner of section 76(1) was enacted in 1949, successive Governments in the United Kingdom have proceeded on the view that the problems posed by aircraft noise are in general better dealt with by taking and enforcing specific regulatory measures to ensure that disturbance caused by aircraft noise is minimised, to the exclusion of having the matter settled by the case-law of the courts on the general criterion of reasonableness in any actions for nuisance which might be brought at common law. It is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation. It is not without significance that the provisions of section 76(1) are comparable to those of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface (see paragraph 15 above).", "45. In view of the foregoing, there is no serious ground for maintaining that either the policy approach to the problem or the content of the particular regulatory measures adopted by the United Kingdom authorities gives rise to violation of Article 8 (art. 8), whether under its positive or negative head. In forming a judgment as to the proper scope of the noise abatement measures for aircraft arriving at and departing from Heathrow Airport, the United Kingdom Government cannot arguably be said to have exceeded the margin of appreciation afforded to them or upset the fair balance required to be struck under Article 8 (art. 8). This conclusion applies to Mr Rayner as much as to Mr Powell, even though Mr Rayner has suffered a much higher level of disturbance and even though careful consideration was given to his complaint by the Commission at the admissibility stage.", "46. In sum, no arguable claim of violation of Article 8 (art. 8) and, consequently, no entitlement to a remedy under Article 13 (art. 13) have been made out in relation to either applicant as regards noise caused by aircraft flying at a reasonable height and in compliance with air traffic regulations.", "In so far as the applicants may also wish to complain of noise caused by aircraft not satisfying one or other of these conditions, there is no bar on their bringing an action in nuisance. To this extent they must be regarded as having an effective remedy available to them.", "In conclusion, there has been no violation of Article 13 (art. 13) in respect of the claims of either applicant under Article 8 (art. 8)." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The degree of disturbance caused to each applicant by night flights", "11. Ruth Hatton was born in 1963. Between 1991 and 1997 she lived in East Sheen with her husband and two children. According to information supplied by the Government, her house was 11.7 km from the end of the nearest runway at Heathrow and fell within a daytime noise contour where the level of disturbance from aircraft noise was between 57 and 60 dBa Leq. According to the Government, dBA Leq measure the average degree of community annoyance from aircraft noise over a sixteen-hour daytime period and studies have shown that in areas where the daytime noise exposure is below 57 dBA Leq there is no significant community annoyance. The Government state that a daytime noise contour of 57 dBA Leq represents a low level of annoyance; 63 dBA Leq represent a moderate level of annoyance; 69 dBA Leq correspond to a high level of annoyance; and 72 dBA Leq represent a very high level of annoyance.", "12. According to Ms Hatton, in 1993 the level of night noise increased and she began to find noise levels to be “intolerable” at night. She believed that the noise was greater when aircraft were landing at Heathrow from the east. When this happened, Ms Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Ms Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Ms Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Ms Hatton's children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Ms Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, she moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night.", "13. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated 4.4 km from Heathrow Airport and slightly to the north of the southern flight path, within a daytime noise contour of between 63 and 66 dBA Leq, according to the Government.", "14. Mr Thake claims that in about 1993 the level of disturbance at night from aircraft noise increased notably and he began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep, and he found it hard to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on nineteen occasions. He remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area, but moved to Winchester, in Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”.", "15. John Hartley was born in 1948 and has lived with his wife at his present address in Richmond since 1989. According to the information provided by the Government, Mr Hartley's house is 9.4 km from the end of the nearest Heathrow runway and, situated almost directly under the southern approach to the airport, within a daytime noise contour area of between 60 and 63 dBA Leq. The windows of the house are double-glazed.", "16. From 1993, Mr Hartley claims to have noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). He states that the British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than then. He would find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep.", "17. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. According to information supplied by the Government, Ms Edmund's house is 8.5 km from the end of the nearest Heathrow runway and approximately 1 km from the flight path, within a daytime noise contour area of under 57 dBA Leq.", "18. The applicant claims that before 1993 she was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. She suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night and, although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds's children both suffered from disturbance by aircraft noise.", "19. John Cavalla was born in 1925. From 1970 to 1996 he lived with his wife in Isleworth, directly under the flight path of the northern runway at Heathrow Airport. According to information supplied by the Government, the applicant's house was 6.3 km from the end of the nearest Heathrow runway, within a daytime noise contour of between 63 and 66 dBA Leq.", "20. The applicant claims that in the early 1990s the noise climate deteriorated markedly, partly because of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla considers that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. He found that, once woken by an aircraft arriving at Heathrow Airport in the early morning, he was unable to go back to sleep.", "21. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. According to the Government, the new house is 9.5 km from Heathrow, within a daytime noise contour area of under 57 dBA Leq. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, he was only very rarely exposed to any night-time aircraft noise following his move.", "22. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. The family have lived at their present address since 1975, in a house lying between the north and south Heathrow flight paths. According to the Government, it is 10.7 km from Heathrow, within a noise contour area of 57 to 60 dBA Leq. Aircraft pass overhead on seven or eight days out of every ten when the prevailing wind is from the west.", "23. Mr Thomas claims to have noticed a sudden increase in night disturbance in 1993. He complains of being woken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m.", "24. Richard Bird was born in 1933 and lived in Windsor for thirty years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow Airport. According to the Government, it was 11.5 km from Heathrow, within a daytime noise contour area of 57 to 60 dBA Leq.", "25. The applicant claims that in recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. or 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998 and moved with his wife to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”.", "26. Tony Anderson was born in 1932 and has lived since 1963 in Touchen End, under the approach to runway 09L at Heathrow Airport and, according to the Government, 17.3 km from the end of the nearest runway, within a daytime noise contour area of under 57 dBA Leq.", "According to the applicant, by 1994 he began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow Airport.", "27. The dBA Leq noise contour figures supplied by the Government and referred to above measure levels of annoyance caused by noise during the course of an average summer day. The Government state that it is not possible to map equivalent contours for night noise disturbance, because there is no widely accepted scale or standard with which to measure night-time annoyance caused by aircraft noise. However, the Government claim that the maximum “average sound exposure” levels, in decibels (dBA), suffered by each applicant as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning is as follows: Ms Hatton – 88 dBA; Mr Thake – 88.8 dBA; Mr Hartley – 89.9 dBA; Ms Edmunds – 83.4 dBA; Mr Cavalla (at his previous address) – 94.4 dBA; Mr Thomas – 88.7 dBA; Mr Bird – 87.8 dBA; and Mr Anderson – 84.1 dBA.", "The Government further claim that the average “peak noise event” levels, that is the maximum noise caused by a single aircraft movement, suffered by each applicant at night are as follows: Mrs Hatton – 76.3 dBA; Mr Thake – 77.1 dBA; Mr Hartley – 78.9 dBA; Ms Edmunds – 70 dBA; Mr Cavalla (at his previous address) – 85 dBA; Mr Thomas – 77.2 dBA; Mr Bird – 76 dBA; Mr Anderson – 71.1 dBA.", "The Government claim that research commissioned before the 1993 review of night restrictions indicated that average outdoor sound exposure levels of below 90 dBA, equivalent to peak noise event levels of approximately 80 dBA, were unlikely to cause any measurable increase in overall rates of sleep disturbance experienced during normal sleep. The applicants, however, refer to World Health Organisation “Guidelines for Community Noise”, which gave a guideline value for avoiding sleep disturbance at night of a single noise event of 60 dBA [1].", "B. The night-time regulatory regime for Heathrow Airport", "28. Heathrow Airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom's leading port in terms of visible trade.", "29. Restrictions on night flights at Heathrow Airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998.", "30. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority.", "31. A Consultation Paper was published by the United Kingdom government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided levels of dBA Leq were not increased.", "32. It indicated that there were two reasons for not considering a ban on night flights: firstly, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow Airport as a twenty-four-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports.", "33. From 1988 to 1993, night flying was regulated solely by means of a limitation on the number of take-offs and landings permitted at night. The hours of restriction were as follows:", "Summer 11.30 p.m. to 6 a.m. weekdays, 11.30 p.m. to 6 a.m. Sunday landings, 11.30 p.m. to 8 a.m. Sunday take-offs;", "Winter 11.30 p.m. to 6.30 a.m. weekdays, 11.30 p.m. to 8 a.m. Sunday take-offs and landings.", "34. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance. The objectives of the review included “to continue to protect local communities from excessive aircraft noise at night” and “to ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account”.", "35. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester Airports. The findings were published in December 1992 as the “Report of a field study of aircraft noise and sleep disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about eighteen nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft movements would cause very little increase in the average person's nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after-effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average.", "36. In January 1993, the government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. The Consultation Paper set up four objectives of the review being undertaken (so far as Heathrow was concerned): to revise and update the existing arrangements; to introduce a common night flights regime for the three airports; to continue to protect local communities from excessive aircraft noise levels at night; and to ensure that competitive influences and the wider employment and economic implications were taken into account. In a section entitled “Concerns of local people”, the Consultation Paper referred to arguments that night flights should be further restricted or banned altogether. In the authors' view, the proposals struck a fair balance between the different interests and did “protect local people from excessive aircraft noise at night”. In considering the demand for night flights, the Consultation Paper made reference to the fact that, if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than those that competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements.", "37. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price-sensitive market.", "38. Further, the Consultation Paper stated that both regular and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings.", "It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price-sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended on high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and this could only be fitted in by using movements at night.", "39. Finally, as regards night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and pointed to the fact that all-cargo movements were banned, whether arriving or departing, for much of the day at Heathrow Airport.", "40. The Consultation Paper referred to the 1992 sleep study, noting that it had found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people's health or well-being.", "41. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to reduce it, it was proposed that the quota for the next five years based on the new system should be set at a level such as to keep overall noise levels below those in 1988.", "42. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association (IATA), the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses.", "43. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”).", "44. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Each airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement.", "45. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (aircraft with a quota count of 8 QC or 16 QC) or to land (aircraft with a quota count of 16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter).", "46. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper.", "47. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 80-83 below). As a result of the various judgments delivered by the High Court and Court of Appeal, the government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions (DETR) formerly the Department of Transport) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted Airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995 and issued a supplement to the March 1995 Consultation Paper in June 1995.", "48. The June 1995 supplement stated that the Secretary of State's policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted Airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 midnight and 5.30 a.m.", "49. On 16 August 1995 the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal confirmed the lawfulness of the 1993 Scheme, as it had been amended (see paragraphs 82-83 below).", "50. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks changed from Greenwich Mean Time (GMT) to British Summer Time (BST)). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period.", "51. In September 1995, a trial was initiated at Heathrow Airport of modified procedures for early morning landings (those between 4 a.m. and 6 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of revised Heathrow early mornings approach procedures trial”, was published in November 1998.", "52. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published the same month. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”.", "53. In 1998, the government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted Airports. In February 1998, a Preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper.", "54. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom's most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success.", "55. The government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation.", "56. The British Air Transport Association (BATA) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about 850 million pounds sterling (GBP). BATA submitted the report to the government when it responded to the Preliminary Consultation Paper.", "57. On 10 September 1998 the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998.", "58. In November 1998, the government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that “interference with sleep” was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full-scale study of either sleep prevention or total sleep loss.", "59. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss.", "60. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they were of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; and to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and update the arrangements as appropriate.", "61. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m.", "62. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region.", "63. The Consultation Paper indicated that the government had not attempted to quantify the aviation and economic benefits of night flights in financial terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which were commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long-haul scheduled night flight at Heathrow to be GBP 20 million to GBP 30 million per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA's figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts.", "64. The Consultation Paper stated that, in formulating its proposals, the government had taken into account both BATA's figures and the fact that it was not possible for the government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in financial terms, but it was possible, drawing on the 1992 sleep study, to estimate the number of people likely to be awakened. The Consultation Paper concluded that, in forming its proposals, the government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night, that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the government's view, would protect local people from excessive aircraft noise at night.", "65. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant re-classifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of “Chapter 2” civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16; and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (that is, after completion of the compulsory Chapter 2 phase-out).", "66. The Consultation Paper stated that since the introduction of the 1993 Scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 Scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review.", "67. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow's runways at night.", "68. On 10 June 1999 the government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99.", "69. The 1999 Scheme came into effect on 31 October 1999.", "70. On 10 November 1999, a report was published on “The contribution of the aviation industry to the UK economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the government.", "71. On 23 November 1999 the government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further Consultation Paper concerning proposals for changes to the preferential use of Heathrow's runways at night.", "72. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR.", "73. In March 2000, the Department of Operational Research and Analysis (DORA) published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers.", "74. A series of noise mitigation and abatement measures is in place at Heathrow Airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise-related airport charges; noise insulation grant schemes; and compensation for noise nuisance under the Land Compensation Act 1973.", "75. The DETR and the management of Heathrow Airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas in the vicinity of Heathrow Airport and local residents' associations are represented." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Civil Aviation Act 1982 (“the 1982 Act”)", "76. Section 76(1) of the 1982 Act provides, in its relevant part:", "“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order ... have been duly complied with ...”", "77. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance.", "78. Section 78(3) of the 1982 Act provides, in its relevant part:", "“If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say –", "(a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified;", "(b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified;", "...”", "79. Restrictions on night flights at Heathrow Airport are imposed by means of notices published by the Secretary of State under section 78(3) of the 1982 Act.", "B. The challenges to the 1993 Scheme", "80. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78(3)(b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports 74).", "81. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78(3)(b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow Airport would permit an increase in noise levels over those experienced in 1988 (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports 390).", "82. Following the publication of a further Consultation Paper in March 1995, and of a supplement to the March 1995 Consultation Paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (see R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports 1460).", "83. On 12 November 1996 the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "84. The applicants complained that the government policy on night flights at Heathrow introduced in 1993 violated their rights under Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The Government denied that there had been any violation of the Convention in this case.", "A. The general principles", "1. The Chamber's judgment", "85. In its judgment of 2 October 2001, the Chamber held that because Heathrow Airport and the aircraft which used it were not owned, controlled or operated by the government or its agents, the United Kingdom could not be said to have “interfered” with the applicants' private or family lives. Instead, the Chamber analysed the applicants' complaints in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Article 8 § 1 (see paragraph 95 of the Chamber's judgment).", "86. The Chamber further held that, whatever analytical approach was adopted, regard must be had to the fair balance that had to be struck between the competing interests of the individual and the community as a whole. In both contexts, the State enjoyed a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see paragraph 96 of the Chamber's judgment). However, the Chamber underlined that in striking the required balance States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others. The Chamber considered that States were required to minimise, as far as possible, interference with Article 8 rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study, with the aim of finding the best possible solution which would, in reality, strike the right balance, should precede the relevant project (see paragraph 97 of the Chamber's judgment).", "2. The parties' submissions", "(a) The Government", "87. In their letter requesting that the case be referred to the Grand Chamber, and in their written and oral observations to the Grand Chamber, the Government strongly objected to the “minimum interference” approach outlined by the Chamber in paragraph 97 of its judgment.", "The Government argued that this test in the context of the present type of case was at odds with a consistent line of Convention jurisprudence and was unwarranted in principle. They submitted that the test reduced to vanishing-point the margin of appreciation afforded to States in an area involving difficult and complex balancing of a variety of competing interests and factors.", "88. Not merely was there clear authority in favour of a wide margin, it was appropriate and right in principle that the State should be allowed such a margin in a context such as the present, since it involved the balancing of a number of competing rights and interests, the importance and sensitivity of some of which might be difficult accurately to evaluate. There was no single correct policy to be applied as regards the regulation of night flights; States could and did adopt a variety of different approaches. The Government reasoned that the present context was similar to the field of planning policy, where the Court had consistently recognised that by reason of their direct and continuous contact with the vital forces of their countries and because of the range of discretionary issues involved, the national authorities were in principle better placed than an international court to evaluate local conditions and needs.", "89. They accepted that inherent in the striking of a fair balance was a need to be sufficiently informed in relation to the relevant issues, in order to avoid making or appearing to make an arbitrary decision. However, the decision-making process was primarily for the national authorities, in this case, the government, subject to judicial review by the domestic courts. The European Court's powers in this context were supervisory: in the absence of any indication of an arbitrary or clearly inadequate investigation, a detailed and minute critique of the information which the government should take into account was neither necessary nor appropriate.", "(b) The applicants", "90. The applicants argued that it was well established from previous case-law that aircraft noise was capable of infringing the Article 8 rights of those sufficiently affected by it and that national authorities owed a positive duty to take steps to ensure the effective protection of these rights. Relying on earlier environmental cases and also child-care and other cases under Article 8, they submitted that the duty could be breached in circumstances where, having regard to the margin of appreciation, the Court considered that the State had struck the wrong substantive balance between the interest it pursued and the individual's effective enjoyment of the Article 8 right, or where there had been a procedural failing, such as the failure to disclose information to an individual affected by environmental nuisance or a failure to base a decision-making process on the relevant considerations or to give relevant and sufficient reasons for an interference with a fundamental right.", "91. The applicants accepted that any informed assessment of whether an interference with Article 8 rights was “necessary in a democratic society” would be accorded a margin of appreciation, the width of that margin depending on the context. However, they submitted that in the present case the margin should be narrow, because deprivation of sleep by exposure to excessive noise, like the infliction of inhuman or degrading treatment, was a matter which could and should be judged by similar standards in similar Contracting States.", "92. Moreover, where a case – such as the present – could be decided on the basis of a procedural breach, namely the government's failure properly to assemble the evidence necessary for the decision-making process, the doctrine of the margin of appreciation had no role to play, since the international judge was well placed to assess the adequacy of the procedural safeguards applied by the State.", "93. For the applicants, the approach of the Chamber – that the violation of Article 8 was based on the government's failure to assemble the evidence that would have been necessary for the decision to be made on the basis of the relevant considerations – was but one way of dealing with the case. A violation of Article 8 could also be established on the basis that the necessary steps to ensure protection of Article 8 rights were not taken, that “relevant and sufficient reasons” had not been given for the interference, or that the substantive balance of interests had not been properly struck.", "3. The third parties", "94. Friends of the Earth submitted that the Chamber's judgment in the present case was consistent with developments in national and international law concerning the relationship between human rights and the environment. In particular, it was consistent with requirements under general international law requiring decision-makers to satisfy themselves by means of proper, complete, and prior investigation as to the factors which should be taken into account in order to achieve an appropriate balance between individual rights and the State's economic interests.", "95. British Airways did not comment on the general principles to be applied by the Court.", "4. The Court's assessment", "96. Article 8 protects the individual's right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Thus, in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40), where the applicants had complained about disturbance from daytime aircraft noise, the Court held that Article 8 was relevant, since “the quality of [each] applicant's private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport”. Similarly, in López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51) the Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might “affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), which, like López Ostra, concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the applicants' right to respect for their private and family life means that Article 8 is applicable” (p. 227, § 57).", "97. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation “available to the legislature in implementing social and economic policies should be a wide one”).", "98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, p. 18, § 41, and López Ostra pp. 54-55, § 51, both cited above).", "99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.", "100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. In Powell and Rayner, for example, it asserted that it was “certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere”, namely the regulation of excessive aircraft noise and the means of redress to be provided to the individual within the domestic legal system. The Court continued that “this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation” (p. 19, § 44).", "101. In other cases involving environmental issues, for example planning cases, the Court has also held that the State must be allowed a wide margin of appreciation. The Court explained the reasons for this approach in Buckley v. the United Kingdom, where the applicant complained that she had been denied planning permission to install a residential caravan on land that she owned (judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77):", "“74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative framework and the particular measure of implementation ... Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention.", "The scope of this margin of appreciation is not identical in each case but will vary according to the context ... Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.", "75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community ... It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases ... By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.", "76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her 'home', a right which is pertinent to her and her children's personal security and well-being ... The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State.", "Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 ...", "77. The Court's task is to determine, on the basis of the above principles, whether the reasons relied on to justify the interference in question are relevant and sufficient under Article 8 § 2.”", "102. The Court has recognised that, where government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual's private life, the margin of appreciation left to the State will be reduced in scope (see Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52).", "103. The Court is thus faced with conflicting views as to the margin of appreciation to be applied: on the one hand, the Government claim a wide margin on the ground that the case concerns matters of general policy, and, on the other hand, the applicants' claim that where the ability to sleep is affected, the margin is narrow because of the “intimate” nature of the right protected. This conflict of views on the margin of appreciation can be resolved only by reference to the context of a particular case.", "104. In connection with the procedural element of the Court's review of cases involving environmental issues, the Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available.", "B. Appraisal of the facts of the case in the light of the general principles", "1. The Chamber's judgment", "105. The Chamber found that, overall, the level of noise during the hours 11.30 p.m. to 6 a.m. had increased under the 1993 Scheme. It considered that, in permitting increased levels of noise from 1993 onwards, the government had failed to respect their positive obligation to the applicants, through omitting, either directly or through the commissioning of independent research, to assess critically the importance of the contribution of night flights to the United Kingdom economy. The Chamber further criticised the government for carrying out only limited research into the effects of night flights on local residents prior to the introduction of the 1993 Scheme, noting that the 1992 sleep study was limited to sleep disturbance and made no mention of the problem of sleep prevention. The Chamber did not accept that the “modest” steps taken to mitigate night noise under the 1993 Scheme were capable of constituting “the measures necessary” to protect the applicants. It concluded that “in the absence of any serious attempt to evaluate the extent or impact of the interferences with the applicants' sleep patterns, and generally in the absence of a prior specific and complete study with the aim of finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the interferences against the economic interest of the country – which itself had not been quantified – the government struck the right balance in setting up the 1993 Scheme”.", "2. The parties' submissions", "(a) The Government", "106. The Government recognised that night-time noise from aircraft had the capacity to disturb or prevent sleep, but urged the Court to assess critically the applicants' claims that each suffered from a high level of disturbance. In this connection they pointed out that there was a considerable variety in the geographical positions of the applicants and in the levels of night noise to which they were exposed. Furthermore, it was noteworthy that hundreds of thousands of residents of London and the home counties were in a similar position, that the property market in the affected areas was thriving and that the applicants had not claimed that they were unable to sell their houses and move.", "107. The Government stressed that all other principal European hub airports had less severe restrictions on night flights than those imposed at the three London airports. Paris-Charles de Gaulle and Amsterdam-Schiphol had no restrictions at all on the total number of “Chapter 3” aircraft which could operate at night, while Frankfurt had restrictions on landings by Chapter 3 aircraft between 1 a.m. and 4 a.m. If restrictions on night flights at Heathrow were made more stringent, UK airlines would be placed at a significant competitive disadvantage. Since 1988 they had used the scarce night slots permitted at Heathrow for two purposes: a small number were late evening departures on flights which had been delayed but the majority, typically thirteen to sixteen flights a night, were early morning arrivals between 4 a.m. and 6 a.m. of long-haul scheduled flights, mainly from South-East Asia, North America and southern Africa. In recent years the airlines concerned had taken steps to ensure that these arrivals did not land before 4.30 a.m.", "The Government submitted that these flights formed an integral part of the network of connecting air services. If they were forced to operate during the day they could provide fewer viable connections with regional services at both ends, making London a less attractive place in which to do business. In any event, daytime capacity at all of London's airports was close to full, and it would be impracticable to re-schedule flights out of the night period.", "108. The Government asserted that before 1993 detailed reviews were conducted into a number of aspects of the night restrictions regime. Thus, in July 1990 the Department of Transport commenced an internal review into the restrictions then applying and, in January, October and November 1993, and also in March and June 1995, published Consultation Papers to seek the views of the public and the industries concerned on the need for and effects of night flights and on various proposed modifications to the regime.", "The respondents from the airline industry stressed the economic importance of night flights, as set out above. They provided information showing that, in 1993, a typical daily night flight would generate an annual revenue of between GBP 70 and 175 million and an annual profit of up to GBP 15 million. The loss of this revenue and profit would impact severely on the ability of airlines to operate and the cost of air travel by day and night. The Government submitted that the basic components of the economic justification for night flights have never been substantially challenged, either by other respondents to the Consultation Papers or since. Despite accepting the force of the economic justification, the authorities did not go as far as they were invited to by the industry; for example, they did not grant the repeated requests for much larger night noise quotas or a night quota period ending at 5 a.m. Instead, they struck a genuine balance between the interests of the industry and of local residents.", "109. The Government stressed that they had also had available, in December 1992, the results of research commissioned in July 1990 into aircraft noise disturbance amongst people living near to Gatwick, Heathrow, Stansted and Manchester Airports (“the 1992 sleep study” – see paragraph 35 above). This study was, and remained, the most comprehensive of its type, and had been preceded by a number of other reports into aircraft noise and sleep disturbance, including detailed interviews with some 1,636 people living near the airports (“the social survey”). The purpose of all this research, culminating in the 1992 sleep study, was to provide information, on as reliable a scientific basis as possible, as to the effects of night-time aircraft noise on sleep. The sleep study showed that external noise levels below 80 dBA were very unlikely to cause any increase in the normal rate of disturbance of someone's sleep; that with external noise levels between 80 and 95 dBA the likelihood of an average person being awakened was about 1 in 75; and that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall disturbance rates, although it was possible that the 2 to 3% of the population who were more sensitive to noise disturbance were twice as likely to be woken. According to the social survey, approximately 80% of those living in the Heathrow area had said that they were never or only sometimes woken up for any cause. Of those that were woken, 17% gave aircraft noise as the cause, 16% blamed a partner or a child and another 28.5% gave a variety of different reasons. Approximately 35% of those living near Heathrow said that if woken, for any reason, they found it difficult to get back to sleep.", "110. The Government submitted that the changes to the hours of restriction, the extension of the quota restrictions to place limits on many previously exempt types of aircraft and the restrictions on the scheduling for landing or taking off of the noisiest categories of aircraft over a longer night period made an exact comparison between the regimes before and after 1993 impossible.", "They recognised that there had been an increase in the number of movements between 6 a.m. and 6.30 a.m. in winter, since this time slot had been subject to restriction before 1993 and now fell outside the quota period. However, the Government contended that, during the core quota period of 11.30 p.m. to 6 a.m., there had been an improvement in the noise environment because of the measures taken, notably the introduction of the quota count system, to encourage the use of quieter aircraft at night.", "(b) The applicants", "111. The applicants, who accepted the Chamber's judgment as one way of applying the Convention to the facts of the case, underlined that only a very small percentage of flights take place between 11.30 p.m. and 6 a.m., and that there are hardly any flights before 4 a.m. at all, with an average of four aircraft landing between 4 a.m. and 4.59 a.m. in 2000, and eleven between 5 a.m. and 5.59 a.m.. They maintained that the disturbance caused by these flights was extensive because the applicants and large numbers of others were affected, and it is the nature of sleep disturbance that once people are awake even a few flights will keep them awake.", "112. The applicants also pointed out that the night noise they are subjected to is frequently in excess of international standards: the World Health Organisation sets as a guideline value for avoiding sleep disturbance at night a single noise event level of 60 dBA Lmax; almost all the applicants have suffered night noise events in excess of 80 dBA Lmax, and in one case as high as 90 dBA Lmax. Because of the logarithmic nature of the decibel scale, noise energy at 80 dBA Lmax is one hundred times the noise energy at 60 dBA Lmax, and in terms of subjective loudness is four times as loud.", "113. The applicants contended that the 1993 Scheme was bound to, and did, result in an increase in night flights and deterioration in the night noise climate, regardless of whether the position was measured by reference to the official night period from 11 p.m. to 7 a.m. or the night quota period from 11.30 a.m. to 6 a.m..", "114. The applicants pointed to the absence of any research into sleep prevention before the 1993 Scheme, and added that post-1993 studies and proposals did not amount to an assessment of the effect of night noise on sleep prevention. They further noted the absence of any government-commissioned research into the economic benefits claimed for night flights, seeing this omission as particularly serious given that many of the world's leading business centres (for example, Berlin, Zürich, Munich, Hamburg and Tokyo) have full night-time passenger curfews of between seven and eight hours.", "3. The third parties", "115. British Airways, whose submissions were supported by the British Air Transport Association (BATA) and the International Air Transport Association (IATA), submitted that night flights at Heathrow play a vital role in the United Kingdom's transport infrastructure, and contribute significantly to the productivity of the United Kingdom economy and the living standards of United Kingdom citizens. They contended that a ban on, or reduction in, night flights would cause major and disproportionate damage to British Airways' business, and would reduce consumer choice. The loss of night flights would cause significant damage to the United Kingdom economy.", "4. The Court's assessment", "116. The case concerns the way in which the applicants were affected by the implementation in 1993 of the new scheme for regulating night flights at Heathrow. The 1993 Scheme was latest in the series of restrictions on night flights which began at Heathrow in 1962 and replaced the previous five-year 1988 Scheme. Its aims included, according to the 1993 Consultation Paper (see paragraph 36 above), both protection of local communities from excessive night noise, and taking account of the wider economic implications. The undertaking given by the government in 1988 “not to allow a worsening of noise at night, and ideally to improve it” was maintained (see paragraphs 41 and 43 above). Specifically, the scheme replaced the earlier system of movement limitations with a regime which gave aircraft operators a choice, through the quota count, as to whether to fly fewer noisier aircraft, or more less noisy types (for details, see paragraphs 44-46 above). Although modified in some respects following various judicial review proceedings (see paragraphs 47-50 and 80-83 above) and as a result of further studies and consultations (see paragraphs 51-69 above), the quota count system introduced in 1993 has remained in place to the present day, the authorities continuing to monitor the situation with a view to possible improvements (see paragraphs 70-75 above).", "117. The 1993 Scheme accepted the conclusions of the 1992 sleep study (see paragraph 35 above) that for the large majority of people living near airports there was no risk of substantial sleep disturbance due to aircraft noise and that only a small percentage of individuals (some 2 to 3%) were more sensitive than others. On this basis, disturbances caused by aircraft noise were regarded as negligible in relation to overall normal disturbance rates (see paragraph 40 above). The 1992 sleep study continued to be relied upon by the government in their 1998/99 review of the regulations for night flights, when it was acknowledged that further research was necessary, in particular as regards sleep prevention, and a number of further studies on the subject were commissioned (see paragraphs 58-59 and 73 above).", "118. The Court has no doubt that the implementation of the 1993 Scheme was susceptible of adversely affecting the quality of the applicants' private life and the scope for their enjoying the amenities of their respective homes, and thus their rights protected by Article 8 of the Convention. Each of the applicants has described the way in which he or she was affected by the changes brought about by the 1993 Scheme at the relevant time (see paragraphs 11-26 above), and the Court sees no reason to doubt the sincerity of their submissions in this respect. It is true that the applicants have not submitted any evidence in support of the degree of discomfort suffered, in particular they have not disproved the Government's indications as to the “objective” daytime noise contour measured at each applicant's home (ibid.). However, as the Government themselves admit, and as is evident from the 1992 sleep study on which they rely, sensitivity to noise includes a subjective element, a small minority of people being more likely than others to be woken or otherwise disturbed in their sleep by aircraft noise at night. The discomfort caused to the individuals concerned will therefore depend not only on the geographical location of their respective homes in relation to the various flight paths, but also on their individual disposition to be disturbed by noise. In the present case the degree of disturbance may vary somewhat from one applicant to the other, but the Court cannot follow the Government when they seem to suggest that the applicants were not, or not considerably, affected by the scheme at issue.", "119. It is clear that in the present case the noise disturbances complained of were not caused by the State or by State organs, but that they emanated from the activities of private operators. It may be argued that the changes brought about by the 1993 Scheme are to be seen as a direct interference by the State with the Article 8 rights of the persons concerned. On the other hand, the State's responsibility in environmental cases may also arise from a failure to regulate private industry in a manner securing proper respect for the rights enshrined in Article 8 of the Convention. As noted above (see paragraph 98), broadly similar principles apply whether a case is analysed in terms of a positive duty on the State or in terms of an interference by a public authority with Article 8 rights to be justified in accordance with paragraph 2 of this provision. The Court is not therefore required to decide whether the present case falls into the one category or the other. The question is whether, in the implementation of the 1993 policy on night flights at Heathrow Airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole.", "120. The Court notes at the outset that in previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime. Thus, in López Ostra, the waste-treatment plant at issue was illegal in that it operated without the necessary licence, and was eventually closed down ( López Ostra, cited above, pp. 46 ‑ 47, §§ 16-22). In Guerra and Others, the violation was also founded on an irregular position at the domestic level, as the applicants had been unable to obtain information that the State was under a statutory obligation to provide ( Guerra and Others, cited above, p. 219, §§ 25-27).", "This element of domestic irregularity is wholly absent in the present case. The policy on night flights which was set up in 1993 was challenged by the local authorities, and was found, after a certain amount of amendment, to be compatible with domestic law. The applicants do not suggest that the policy (as amended) was in any way unlawful at a domestic level, and indeed they have not exhausted domestic remedies in respect of any such claim. Further, they do not claim that any of the night flights which disturbed their sleep violated the relevant regulations, and again any such claim could have been pursued in the domestic courts under section 76(1) of the Civil Aviation Act 1982.", "121. In order to justify the night flight scheme in the form in which it has operated since 1993, the Government refer not only to the economic interests of the operators of airlines and other enterprises as well as their clients, but also, and above all, to the economic interests of the country as a whole. In their submission these considerations make it necessary to impinge, at least to a certain extent, on the Article 8 rights of the persons affected by the scheme. The Court observes that according to the second paragraph of Article 8 restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others. It is therefore legitimate for the State to have taken the above economic interests into consideration in the shaping of its policy.", "122. The Court must consider whether the State can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by States in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above).", "123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation (see Dudgeon, cited above, p. 21, § 52, and paragraph 102 above). Rather, the normal rule applicable to general policy decisions (see paragraph 97 above) would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in Buckley, cited above (see paragraph 101). Whilst the State is required to give due consideration to the particular interests, the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.", "124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period (see paragraph 61 above). The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8.", "125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates (see paragraph 40 above). However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review.", "126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from Far-East destinations to London could arrive only by departing very late at night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including, inter alia, the addition of an overall maximum number of permitted aircraft movements (see paragraph 50 above) and reduction of the available quota count points (see paragraph 66 above).", "127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (see paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure.", "128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the authorities have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme had thus been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN (see paragraph 1 above), and were thus particularly well-placed to make representations.", "129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights.", "130. There has accordingly been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "131. The applicants contended that judicial review was not an effective remedy in relation to their rights under Article 8 of the Convention, in breach of Article 13.", "Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "132. The Government disputed the applicants' contention that there had been a violation of Article 13.", "A. The Chamber's judgment", "133. In its judgment of 2 October 2001, the Chamber held that the scope of review by the domestic courts did not allow consideration of whether the increase in night flights under the 1993 Scheme represented a justifiable limitation on the Article 8 rights of those who live in the vicinity of Heathrow Airport (see paragraphs 115 and 116 above).", "B. The parties' submissions", "1. The Government", "134. In their letter requesting that the case be referred to the Grand Chamber, the Government made no reference to Article 13 of the Convention. In subsequent communications they referred back to the pleadings before the Commission and the Chamber, summarised at paragraphs 112 and 113 of the Chamber's judgment, in which they contended that Article 13 was not applicable or, in the alternative, that the scope of judicial review was sufficient to satisfy the requirements of that provision. At the hearing of 13 November 2002 the Government underlined that the present case concerned positive rather than negative obligations, and pointed to similarities between the judicial review proceedings in the United Kingdom and the Convention approach.", "2. The applicants", "135. The applicants contended, as they had before the Chamber, that they had no private-law rights in relation to excessive night noise, as a consequence of the statutory exclusion of liability in section 76 of the Civil Aviation Act 1982. They submitted that the limits inherent in an application for judicial review meant that it was not an effective remedy. They added that in R. (Daly) v. Secretary of State for the Home Department ([2001] 2 Appeal Cases 532), the House of Lords had confirmed the inadequacy of the approach in R. v. Minister of Defence, ex parte Smith ([1996] Queen's Bench Reports 517).", "C. The third parties", "136. The third parties did not comment on the Article 13 issues.", "D. The Court's assessment", "137. As the Chamber observed, Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54). In the present case, it has not found a violation of Article 8, but the Court considers that confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it must accept that the claim under Article 8 was arguable. The complaint under Article 13 must therefore be considered.", "138. The Court would first reiterate that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 62, § 40). Similarly, it does not allow a challenge to a general policy as such. Where an applicant has an arguable claim to a violation of a Convention right, however, the domestic regime must afford an effective remedy (ibid., p. 62, § 39).", "139. As the Chamber found, section 76 of the 1982 Act prevents actions in nuisance in respect of excessive noise caused by aircraft at night. The applicants complain about the flights which were permitted by the 1993 Scheme, and which were in accordance with the relevant regulations. No action therefore lay in trespass or nuisance in respect of lawful night flights.", "140. The question which the Court must address is whether the applicants had a remedy at national level to “enforce the substance of the Convention rights ... in whatever form they may happen to be secured in the domestic legal order” (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, pp. 38-40, §§ 117-27). The scope of the domestic review in Vilvarajah, which concerned immigration, was relatively broad because of the importance domestic law attached to the matter of physical integrity. It was on this basis that judicial review was held to comply with the requirements of Article 13. In contrast, in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999-VI), the Court concluded that judicial review was not an effective remedy on the ground that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 in the domestic courts.", "141. The Court observes that judicial review proceedings were capable of establishing that the 1993 Scheme was unlawful because the gap between government policy and practice was too wide (see R. v. Secretary of State for Transport, ex parte Richmond LBC (no. 2) [1995] Environmental Law Reports 390). However, it is clear, as noted by the Chamber, that the scope of review by the domestic courts was limited to the classic English public-law concepts, such as irrationality, unlawfulness and patent unreasonableness, and did not at the time (that is, prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow Airport.", "142. In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13.", "There has therefore been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "143. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "144. The applicants, referring to the Chamber's judgment, considered that a modest award should be made in relation to non-pecuniary damage.", "145. The Government took the view that a finding of a violation would constitute in itself sufficient just satisfaction in respect of a violation of either Article 8 or Article 13.", "146. The Chamber awarded the applicants the sum of 4,000 pounds sterling (GBP) each for non-pecuniary damage in respect of the violations it found of Articles 8 and 13.", "147. The Court has found a violation of the procedural right to an effective domestic remedy under Article 13 of the Convention in respect of the applicants' complaints under Article 8, but no violation of the substantive right to respect for private life, family life, home and correspondence under Article 8 itself.", "148. The Court notes that in Camenzind v. Switzerland (judgment of 16 December 1997, Reports 1997-VIII, pp. 2897-98, § 57) the Court found a violation of Article 13 in relation to the applicant's claim under Article 8, but no substantive violation of the Convention. In that case the Court considered that the judgment constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage.", "Furthermore, in the present case, the violation of Article 13 derived, not from the applicants' lack of any access to the British courts to challenge the impact on them of the State's policy on night flights at Heathrow Airport, but rather from the overly narrow scope of judicial review at the time, which meant that the remedy available under British law was not an “effective” one enabling them to ventilate fully the substance of their complaint under Article 8 of the Convention (see paragraphs 140-42 above).", "This being so, the Court considers that, having regard to the nature of the violation found, the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage.", "B. Costs and expenses", "149. The applicants claimed a total of GBP 153,867.56 plus GBP 24,929.55 value-added tax (VAT) in respect of the costs before the Chamber, and an additional GBP 154,941.48 plus GBP 23,976.82 VAT (totalling GBP 178,918.30) before the Grand Chamber.", "150. The Government made a number of comments on the costs and expenses before the Grand Chamber. They challenged the rates charged by the solicitors involved, and considered that the time billed by the solicitors was excessive. They also considered that the fees charged by counsel and the applicants' experts were excessive. Overall, they suggested GBP 109,000 as an appropriate figure for the Grand Chamber costs and expenses.", "151. The Chamber reduced the costs and expenses claimed by the applicants in the proceedings up to then from GBP 153,867.56 to GBP 70,000.", "152. Costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).", "153. The Court notes that whilst the Chamber found a violation of both Articles 8 and 13 of the Convention, the Grand Chamber has found solely a violation of Article 13 in relation to the applicants' claim under Article 8. Whilst this difference between the findings should be reflected in the award of costs, the Grand Chamber should not lose sight of the fact that Article 13 cannot stand alone. Without an “arguable claim” in respect of the substantive issues, the Court would have been unable to consider Article 13 (see, for example, Boyle and Rice, cited above, pp. 23-24, §§ 52 and 54). The award of costs should therefore reflect the work undertaken by the applicants' representatives on the Article 8 issues to a certain extent, even if not to the same extent as if a violation of Article 8 had also been found.", "154. The Court awards the applicants the sum of 50,000 euros, including VAT, in respect of costs and expenses.", "C. Default interest", "155. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "A. The degree of disturbance caused to each applicant by night flights", "11. Ruth Hatton was born in 1963. Between 1991 and 1997 she lived in East Sheen with her husband and two children. According to information supplied by the Government, her house was 11.7 km from the end of the nearest runway at Heathrow and fell within a daytime noise contour where the level of disturbance from aircraft noise was between 57 and 60 dBa Leq. According to the Government, dBA Leq measure the average degree of community annoyance from aircraft noise over a sixteen-hour daytime period and studies have shown that in areas where the daytime noise exposure is below 57 dBA Leq there is no significant community annoyance. The Government state that a daytime noise contour of 57 dBA Leq represents a low level of annoyance; 63 dBA Leq represent a moderate level of annoyance; 69 dBA Leq correspond to a high level of annoyance; and 72 dBA Leq represent a very high level of annoyance.", "12. According to Ms Hatton, in 1993 the level of night noise increased and she began to find noise levels to be “intolerable” at night. She believed that the noise was greater when aircraft were landing at Heathrow from the east. When this happened, Ms Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Ms Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Ms Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Ms Hatton's children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Ms Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, she moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night.", "13. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated 4.4 km from Heathrow Airport and slightly to the north of the southern flight path, within a daytime noise contour of between 63 and 66 dBA Leq, according to the Government.", "14. Mr Thake claims that in about 1993 the level of disturbance at night from aircraft noise increased notably and he began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep, and he found it hard to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on nineteen occasions. He remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area, but moved to Winchester, in Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”.", "15. John Hartley was born in 1948 and has lived with his wife at his present address in Richmond since 1989. According to the information provided by the Government, Mr Hartley's house is 9.4 km from the end of the nearest Heathrow runway and, situated almost directly under the southern approach to the airport, within a daytime noise contour area of between 60 and 63 dBA Leq. The windows of the house are double-glazed.", "16. From 1993, Mr Hartley claims to have noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). He states that the British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than then. He would find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep.", "17. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. According to information supplied by the Government, Ms Edmund's house is 8.5 km from the end of the nearest Heathrow runway and approximately 1 km from the flight path, within a daytime noise contour area of under 57 dBA Leq.", "18. The applicant claims that before 1993 she was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. She suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night and, although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds's children both suffered from disturbance by aircraft noise.", "19. John Cavalla was born in 1925. From 1970 to 1996 he lived with his wife in Isleworth, directly under the flight path of the northern runway at Heathrow Airport. According to information supplied by the Government, the applicant's house was 6.3 km from the end of the nearest Heathrow runway, within a daytime noise contour of between 63 and 66 dBA Leq.", "20. The applicant claims that in the early 1990s the noise climate deteriorated markedly, partly because of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla considers that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. He found that, once woken by an aircraft arriving at Heathrow Airport in the early morning, he was unable to go back to sleep.", "21. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. According to the Government, the new house is 9.5 km from Heathrow, within a daytime noise contour area of under 57 dBA Leq. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, he was only very rarely exposed to any night-time aircraft noise following his move.", "22. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. The family have lived at their present address since 1975, in a house lying between the north and south Heathrow flight paths. According to the Government, it is 10.7 km from Heathrow, within a noise contour area of 57 to 60 dBA Leq. Aircraft pass overhead on seven or eight days out of every ten when the prevailing wind is from the west.", "23. Mr Thomas claims to have noticed a sudden increase in night disturbance in 1993. He complains of being woken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m.", "24. Richard Bird was born in 1933 and lived in Windsor for thirty years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow Airport. According to the Government, it was 11.5 km from Heathrow, within a daytime noise contour area of 57 to 60 dBA Leq.", "25. The applicant claims that in recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. or 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998 and moved with his wife to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”.", "26. Tony Anderson was born in 1932 and has lived since 1963 in Touchen End, under the approach to runway 09L at Heathrow Airport and, according to the Government, 17.3 km from the end of the nearest runway, within a daytime noise contour area of under 57 dBA Leq.", "According to the applicant, by 1994 he began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow Airport.", "27. The dBA Leq noise contour figures supplied by the Government and referred to above measure levels of annoyance caused by noise during the course of an average summer day. The Government state that it is not possible to map equivalent contours for night noise disturbance, because there is no widely accepted scale or standard with which to measure night-time annoyance caused by aircraft noise. However, the Government claim that the maximum “average sound exposure” levels, in decibels (dBA), suffered by each applicant as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning is as follows: Ms Hatton – 88 dBA; Mr Thake – 88.8 dBA; Mr Hartley – 89.9 dBA; Ms Edmunds – 83.4 dBA; Mr Cavalla (at his previous address) – 94.4 dBA; Mr Thomas – 88.7 dBA; Mr Bird – 87.8 dBA; and Mr Anderson – 84.1 dBA.", "The Government further claim that the average “peak noise event” levels, that is the maximum noise caused by a single aircraft movement, suffered by each applicant at night are as follows: Mrs Hatton – 76.3 dBA; Mr Thake – 77.1 dBA; Mr Hartley – 78.9 dBA; Ms Edmunds – 70 dBA; Mr Cavalla (at his previous address) – 85 dBA; Mr Thomas – 77.2 dBA; Mr Bird – 76 dBA; Mr Anderson – 71.1 dBA.", "The Government claim that research commissioned before the 1993 review of night restrictions indicated that average outdoor sound exposure levels of below 90 dBA, equivalent to peak noise event levels of approximately 80 dBA, were unlikely to cause any measurable increase in overall rates of sleep disturbance experienced during normal sleep. The applicants, however, refer to World Health Organisation “Guidelines for Community Noise”, which gave a guideline value for avoiding sleep disturbance at night of a single noise event of 60 dBA [1].", "B. The night-time regulatory regime for Heathrow Airport", "28. Heathrow Airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom's leading port in terms of visible trade.", "29. Restrictions on night flights at Heathrow Airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998.", "30. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority.", "31. A Consultation Paper was published by the United Kingdom government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided levels of dBA Leq were not increased.", "32. It indicated that there were two reasons for not considering a ban on night flights: firstly, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow Airport as a twenty-four-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports.", "33. From 1988 to 1993, night flying was regulated solely by means of a limitation on the number of take-offs and landings permitted at night. The hours of restriction were as follows:", "Summer 11.30 p.m. to 6 a.m. weekdays, 11.30 p.m. to 6 a.m. Sunday landings, 11.30 p.m. to 8 a.m. Sunday take-offs;", "Winter 11.30 p.m. to 6.30 a.m. weekdays, 11.30 p.m. to 8 a.m. Sunday take-offs and landings.", "34. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance. The objectives of the review included “to continue to protect local communities from excessive aircraft noise at night” and “to ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account”.", "35. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester Airports. The findings were published in December 1992 as the “Report of a field study of aircraft noise and sleep disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about eighteen nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft movements would cause very little increase in the average person's nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after-effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average.", "36. In January 1993, the government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. The Consultation Paper set up four objectives of the review being undertaken (so far as Heathrow was concerned): to revise and update the existing arrangements; to introduce a common night flights regime for the three airports; to continue to protect local communities from excessive aircraft noise levels at night; and to ensure that competitive influences and the wider employment and economic implications were taken into account. In a section entitled “Concerns of local people”, the Consultation Paper referred to arguments that night flights should be further restricted or banned altogether. In the authors' view, the proposals struck a fair balance between the different interests and did “protect local people from excessive aircraft noise at night”. In considering the demand for night flights, the Consultation Paper made reference to the fact that, if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than those that competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements.", "37. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price-sensitive market.", "38. Further, the Consultation Paper stated that both regular and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings.", "It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price-sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended on high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and this could only be fitted in by using movements at night.", "39. Finally, as regards night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and pointed to the fact that all-cargo movements were banned, whether arriving or departing, for much of the day at Heathrow Airport.", "40. The Consultation Paper referred to the 1992 sleep study, noting that it had found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people's health or well-being.", "41. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to reduce it, it was proposed that the quota for the next five years based on the new system should be set at a level such as to keep overall noise levels below those in 1988.", "42. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association (IATA), the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses.", "43. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”).", "44. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Each airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement.", "45. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (aircraft with a quota count of 8 QC or 16 QC) or to land (aircraft with a quota count of 16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter).", "46. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper.", "47. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 80-83 below). As a result of the various judgments delivered by the High Court and Court of Appeal, the government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions (DETR) formerly the Department of Transport) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted Airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995 and issued a supplement to the March 1995 Consultation Paper in June 1995.", "48. The June 1995 supplement stated that the Secretary of State's policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted Airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 midnight and 5.30 a.m.", "49. On 16 August 1995 the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal confirmed the lawfulness of the 1993 Scheme, as it had been amended (see paragraphs 82-83 below).", "50. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks changed from Greenwich Mean Time (GMT) to British Summer Time (BST)). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period.", "51. In September 1995, a trial was initiated at Heathrow Airport of modified procedures for early morning landings (those between 4 a.m. and 6 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of revised Heathrow early mornings approach procedures trial”, was published in November 1998.", "52. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published the same month. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”.", "53. In 1998, the government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted Airports. In February 1998, a Preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper.", "54. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom's most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success.", "55. The government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation.", "56. The British Air Transport Association (BATA) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about 850 million pounds sterling (GBP). BATA submitted the report to the government when it responded to the Preliminary Consultation Paper.", "57. On 10 September 1998 the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998.", "58. In November 1998, the government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that “interference with sleep” was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full-scale study of either sleep prevention or total sleep loss.", "59. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss.", "60. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they were of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; and to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and update the arrangements as appropriate.", "61. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m.", "62. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region.", "63. The Consultation Paper indicated that the government had not attempted to quantify the aviation and economic benefits of night flights in financial terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which were commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long-haul scheduled night flight at Heathrow to be GBP 20 million to GBP 30 million per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA's figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts.", "64. The Consultation Paper stated that, in formulating its proposals, the government had taken into account both BATA's figures and the fact that it was not possible for the government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in financial terms, but it was possible, drawing on the 1992 sleep study, to estimate the number of people likely to be awakened. The Consultation Paper concluded that, in forming its proposals, the government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night, that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the government's view, would protect local people from excessive aircraft noise at night.", "65. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant re-classifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of “Chapter 2” civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16; and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (that is, after completion of the compulsory Chapter 2 phase-out).", "66. The Consultation Paper stated that since the introduction of the 1993 Scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 Scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review.", "67. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow's runways at night.", "68. On 10 June 1999 the government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99.", "69. The 1999 Scheme came into effect on 31 October 1999.", "70. On 10 November 1999, a report was published on “The contribution of the aviation industry to the UK economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the government.", "71. On 23 November 1999 the government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further Consultation Paper concerning proposals for changes to the preferential use of Heathrow's runways at night.", "72. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR.", "73. In March 2000, the Department of Operational Research and Analysis (DORA) published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers.", "74. A series of noise mitigation and abatement measures is in place at Heathrow Airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise-related airport charges; noise insulation grant schemes; and compensation for noise nuisance under the Land Compensation Act 1973.", "75. The DETR and the management of Heathrow Airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas in the vicinity of Heathrow Airport and local residents' associations are represented." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Civil Aviation Act 1982 (“the 1982 Act”)", "76. Section 76(1) of the 1982 Act provides, in its relevant part:", "“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order ... have been duly complied with ...”", "77. Air Navigation Orders made under the 1982 Act provide for Orders in Council to be made for the regulation of aviation. Orders in Council have been made to deal with, amongst other matters, engine emissions, noise certification and compensation for noise nuisance.", "78. Section 78(3) of the 1982 Act provides, in its relevant part:", "“If the Secretary of State considers it appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with the taking-off or landing of aircraft at a designated aerodrome, to prohibit aircraft from taking off or landing, or limit the number of occasions on which they may take off or land, at the aerodrome during certain periods, he may by a notice published in the prescribed manner do all or any of the following, that is to say –", "(a) prohibit aircraft of descriptions specified in the notice from taking off or landing at the aerodrome (otherwise than in an emergency of a description so specified) during periods so specified;", "(b) specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land at the aerodrome ... during the periods so specified;", "...”", "79. Restrictions on night flights at Heathrow Airport are imposed by means of notices published by the Secretary of State under section 78(3) of the 1982 Act.", "B. The challenges to the 1993 Scheme", "80. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme. They made four consecutive applications for judicial review, and appealed twice to the Court of Appeal. The High Court declared that the 1993 Scheme was contrary to the terms of section 78(3)(b) of the 1982 Act, and therefore invalid, because it did not “specify the maximum number of occasions on which aircraft of descriptions so specified may be permitted to take off or land” but, instead, imposed controls by reference to levels of exposure to noise energy (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1994] 1 Weekly Law Reports 74).", "81. The Secretary of State decided to retain the quota count system, but with the addition of an overall maximum number of aircraft movements. This decision was held by the High Court to be in accordance with section 78(3)(b) of the 1982 Act. However, the 1993 Consultation Paper was held to have been “materially misleading” in failing to make clear that the implementation of the proposals for Heathrow Airport would permit an increase in noise levels over those experienced in 1988 (see R. v. Secretary of State for Transport, ex parte Richmond upon Thames Borough Council and Others [1995] Environmental Law Reports 390).", "82. Following the publication of a further Consultation Paper in March 1995, and of a supplement to the March 1995 Consultation Paper in June 1995, the local authorities brought a further application for judicial review. In July 1996, the Court of Appeal decided that the Secretary of State had given adequate reasons and sufficient justification for his conclusion that it was reasonable, on balance, to run the risk of diminishing to some degree local people's ability to sleep at night because of the other countervailing considerations to which he was, in 1993, willing to give greater weight, and that by June 1995 errors in the consultation papers had been corrected and the new policy could not be said to be irrational (see R. v. Secretary of State for Transport, ex parte Richmond LBC [1996] 1 Weekly Law Reports 1460).", "83. On 12 November 1996 the House of Lords dismissed a petition by the local authorities for leave to appeal against the decision of the Court of Appeal.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "84. The applicants complained that the government policy on night flights at Heathrow introduced in 1993 violated their rights under Article 8 of the Convention, which provides:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "The Government denied that there had been any violation of the Convention in this case.", "A. The general principles", "1. The Chamber's judgment", "85. In its judgment of 2 October 2001, the Chamber held that because Heathrow Airport and the aircraft which used it were not owned, controlled or operated by the government or its agents, the United Kingdom could not be said to have “interfered” with the applicants' private or family lives. Instead, the Chamber analysed the applicants' complaints in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under Article 8 § 1 (see paragraph 95 of the Chamber's judgment).", "86. The Chamber further held that, whatever analytical approach was adopted, regard must be had to the fair balance that had to be struck between the competing interests of the individual and the community as a whole. In both contexts, the State enjoyed a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see paragraph 96 of the Chamber's judgment). However, the Chamber underlined that in striking the required balance States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others. The Chamber considered that States were required to minimise, as far as possible, interference with Article 8 rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study, with the aim of finding the best possible solution which would, in reality, strike the right balance, should precede the relevant project (see paragraph 97 of the Chamber's judgment).", "2. The parties' submissions", "(a) The Government", "87. In their letter requesting that the case be referred to the Grand Chamber, and in their written and oral observations to the Grand Chamber, the Government strongly objected to the “minimum interference” approach outlined by the Chamber in paragraph 97 of its judgment.", "The Government argued that this test in the context of the present type of case was at odds with a consistent line of Convention jurisprudence and was unwarranted in principle. They submitted that the test reduced to vanishing-point the margin of appreciation afforded to States in an area involving difficult and complex balancing of a variety of competing interests and factors.", "88. Not merely was there clear authority in favour of a wide margin, it was appropriate and right in principle that the State should be allowed such a margin in a context such as the present, since it involved the balancing of a number of competing rights and interests, the importance and sensitivity of some of which might be difficult accurately to evaluate. There was no single correct policy to be applied as regards the regulation of night flights; States could and did adopt a variety of different approaches. The Government reasoned that the present context was similar to the field of planning policy, where the Court had consistently recognised that by reason of their direct and continuous contact with the vital forces of their countries and because of the range of discretionary issues involved, the national authorities were in principle better placed than an international court to evaluate local conditions and needs.", "89. They accepted that inherent in the striking of a fair balance was a need to be sufficiently informed in relation to the relevant issues, in order to avoid making or appearing to make an arbitrary decision. However, the decision-making process was primarily for the national authorities, in this case, the government, subject to judicial review by the domestic courts. The European Court's powers in this context were supervisory: in the absence of any indication of an arbitrary or clearly inadequate investigation, a detailed and minute critique of the information which the government should take into account was neither necessary nor appropriate.", "(b) The applicants", "90. The applicants argued that it was well established from previous case-law that aircraft noise was capable of infringing the Article 8 rights of those sufficiently affected by it and that national authorities owed a positive duty to take steps to ensure the effective protection of these rights. Relying on earlier environmental cases and also child-care and other cases under Article 8, they submitted that the duty could be breached in circumstances where, having regard to the margin of appreciation, the Court considered that the State had struck the wrong substantive balance between the interest it pursued and the individual's effective enjoyment of the Article 8 right, or where there had been a procedural failing, such as the failure to disclose information to an individual affected by environmental nuisance or a failure to base a decision-making process on the relevant considerations or to give relevant and sufficient reasons for an interference with a fundamental right.", "91. The applicants accepted that any informed assessment of whether an interference with Article 8 rights was “necessary in a democratic society” would be accorded a margin of appreciation, the width of that margin depending on the context. However, they submitted that in the present case the margin should be narrow, because deprivation of sleep by exposure to excessive noise, like the infliction of inhuman or degrading treatment, was a matter which could and should be judged by similar standards in similar Contracting States.", "92. Moreover, where a case – such as the present – could be decided on the basis of a procedural breach, namely the government's failure properly to assemble the evidence necessary for the decision-making process, the doctrine of the margin of appreciation had no role to play, since the international judge was well placed to assess the adequacy of the procedural safeguards applied by the State.", "93. For the applicants, the approach of the Chamber – that the violation of Article 8 was based on the government's failure to assemble the evidence that would have been necessary for the decision to be made on the basis of the relevant considerations – was but one way of dealing with the case. A violation of Article 8 could also be established on the basis that the necessary steps to ensure protection of Article 8 rights were not taken, that “relevant and sufficient reasons” had not been given for the interference, or that the substantive balance of interests had not been properly struck.", "3. The third parties", "94. Friends of the Earth submitted that the Chamber's judgment in the present case was consistent with developments in national and international law concerning the relationship between human rights and the environment. In particular, it was consistent with requirements under general international law requiring decision-makers to satisfy themselves by means of proper, complete, and prior investigation as to the factors which should be taken into account in order to achieve an appropriate balance between individual rights and the State's economic interests.", "95. British Airways did not comment on the general principles to be applied by the Court.", "4. The Court's assessment", "96. Article 8 protects the individual's right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. Thus, in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40), where the applicants had complained about disturbance from daytime aircraft noise, the Court held that Article 8 was relevant, since “the quality of [each] applicant's private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport”. Similarly, in López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C, pp. 54-55, § 51) the Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might “affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I), which, like López Ostra, concerned environmental pollution, the Court observed that “[the] direct effect of the toxic emissions on the applicants' right to respect for their private and family life means that Article 8 is applicable” (p. 227, § 57).", "97. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that the margin of appreciation “available to the legislature in implementing social and economic policies should be a wide one”).", "98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private industry properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, p. 18, § 41, and López Ostra pp. 54-55, § 51, both cited above).", "99. The Court considers that in a case such as the present one, involving State decisions affecting environmental issues, there are two aspects to the inquiry which may be carried out by the Court. First, the Court may assess the substantive merits of the government's decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual.", "100. In relation to the substantive aspect, the Court has held that the State must be allowed a wide margin of appreciation. In Powell and Rayner, for example, it asserted that it was “certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere”, namely the regulation of excessive aircraft noise and the means of redress to be provided to the individual within the domestic legal system. The Court continued that “this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation” (p. 19, § 44).", "101. In other cases involving environmental issues, for example planning cases, the Court has also held that the State must be allowed a wide margin of appreciation. The Court explained the reasons for this approach in Buckley v. the United Kingdom, where the applicant complained that she had been denied planning permission to install a residential caravan on land that she owned (judgment of 25 September 1996, Reports 1996-IV, pp. 1291-93, §§ 74-77):", "“74. As is well established in the Court's case-law, it is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative framework and the particular measure of implementation ... Although a margin of appreciation is thereby left to the national authorities, their decision remains subject to review by the Court for conformity with the requirements of the Convention.", "The scope of this margin of appreciation is not identical in each case but will vary according to the context ... Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned.", "75. The Court has already had occasion to note that town and country planning schemes involve the exercise of discretionary judgment in the implementation of policies adopted in the interest of the community ... It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases ... By reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.", "76. The Court cannot ignore, however, that in the instant case the interests of the community are to be balanced against the applicant's right to respect for her 'home', a right which is pertinent to her and her children's personal security and well-being ... The importance of that right for the applicant and her family must also be taken into account in determining the scope of the margin of appreciation allowed to the respondent State.", "Whenever discretion capable of interfering with the enjoyment of a Convention right such as the one in issue in the present case is conferred on national authorities, the procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. Indeed it is settled case-law that, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 ...", "77. The Court's task is to determine, on the basis of the above principles, whether the reasons relied on to justify the interference in question are relevant and sufficient under Article 8 § 2.”", "102. The Court has recognised that, where government policy in the form of criminal laws interferes with a particularly intimate aspect of an individual's private life, the margin of appreciation left to the State will be reduced in scope (see Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, p. 21, § 52).", "103. The Court is thus faced with conflicting views as to the margin of appreciation to be applied: on the one hand, the Government claim a wide margin on the ground that the case concerns matters of general policy, and, on the other hand, the applicants' claim that where the ability to sleep is affected, the margin is narrow because of the “intimate” nature of the right protected. This conflict of views on the margin of appreciation can be resolved only by reference to the context of a particular case.", "104. In connection with the procedural element of the Court's review of cases involving environmental issues, the Court is required to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals (including the applicants) were taken into account throughout the decision-making procedure, and the procedural safeguards available.", "B. Appraisal of the facts of the case in the light of the general principles", "1. The Chamber's judgment", "105. The Chamber found that, overall, the level of noise during the hours 11.30 p.m. to 6 a.m. had increased under the 1993 Scheme. It considered that, in permitting increased levels of noise from 1993 onwards, the government had failed to respect their positive obligation to the applicants, through omitting, either directly or through the commissioning of independent research, to assess critically the importance of the contribution of night flights to the United Kingdom economy. The Chamber further criticised the government for carrying out only limited research into the effects of night flights on local residents prior to the introduction of the 1993 Scheme, noting that the 1992 sleep study was limited to sleep disturbance and made no mention of the problem of sleep prevention. The Chamber did not accept that the “modest” steps taken to mitigate night noise under the 1993 Scheme were capable of constituting “the measures necessary” to protect the applicants. It concluded that “in the absence of any serious attempt to evaluate the extent or impact of the interferences with the applicants' sleep patterns, and generally in the absence of a prior specific and complete study with the aim of finding the least onerous solution as regards human rights, it is not possible to agree that in weighing the interferences against the economic interest of the country – which itself had not been quantified – the government struck the right balance in setting up the 1993 Scheme”.", "2. The parties' submissions", "(a) The Government", "106. The Government recognised that night-time noise from aircraft had the capacity to disturb or prevent sleep, but urged the Court to assess critically the applicants' claims that each suffered from a high level of disturbance. In this connection they pointed out that there was a considerable variety in the geographical positions of the applicants and in the levels of night noise to which they were exposed. Furthermore, it was noteworthy that hundreds of thousands of residents of London and the home counties were in a similar position, that the property market in the affected areas was thriving and that the applicants had not claimed that they were unable to sell their houses and move.", "107. The Government stressed that all other principal European hub airports had less severe restrictions on night flights than those imposed at the three London airports. Paris-Charles de Gaulle and Amsterdam-Schiphol had no restrictions at all on the total number of “Chapter 3” aircraft which could operate at night, while Frankfurt had restrictions on landings by Chapter 3 aircraft between 1 a.m. and 4 a.m. If restrictions on night flights at Heathrow were made more stringent, UK airlines would be placed at a significant competitive disadvantage. Since 1988 they had used the scarce night slots permitted at Heathrow for two purposes: a small number were late evening departures on flights which had been delayed but the majority, typically thirteen to sixteen flights a night, were early morning arrivals between 4 a.m. and 6 a.m. of long-haul scheduled flights, mainly from South-East Asia, North America and southern Africa. In recent years the airlines concerned had taken steps to ensure that these arrivals did not land before 4.30 a.m.", "The Government submitted that these flights formed an integral part of the network of connecting air services. If they were forced to operate during the day they could provide fewer viable connections with regional services at both ends, making London a less attractive place in which to do business. In any event, daytime capacity at all of London's airports was close to full, and it would be impracticable to re-schedule flights out of the night period.", "108. The Government asserted that before 1993 detailed reviews were conducted into a number of aspects of the night restrictions regime. Thus, in July 1990 the Department of Transport commenced an internal review into the restrictions then applying and, in January, October and November 1993, and also in March and June 1995, published Consultation Papers to seek the views of the public and the industries concerned on the need for and effects of night flights and on various proposed modifications to the regime.", "The respondents from the airline industry stressed the economic importance of night flights, as set out above. They provided information showing that, in 1993, a typical daily night flight would generate an annual revenue of between GBP 70 and 175 million and an annual profit of up to GBP 15 million. The loss of this revenue and profit would impact severely on the ability of airlines to operate and the cost of air travel by day and night. The Government submitted that the basic components of the economic justification for night flights have never been substantially challenged, either by other respondents to the Consultation Papers or since. Despite accepting the force of the economic justification, the authorities did not go as far as they were invited to by the industry; for example, they did not grant the repeated requests for much larger night noise quotas or a night quota period ending at 5 a.m. Instead, they struck a genuine balance between the interests of the industry and of local residents.", "109. The Government stressed that they had also had available, in December 1992, the results of research commissioned in July 1990 into aircraft noise disturbance amongst people living near to Gatwick, Heathrow, Stansted and Manchester Airports (“the 1992 sleep study” – see paragraph 35 above). This study was, and remained, the most comprehensive of its type, and had been preceded by a number of other reports into aircraft noise and sleep disturbance, including detailed interviews with some 1,636 people living near the airports (“the social survey”). The purpose of all this research, culminating in the 1992 sleep study, was to provide information, on as reliable a scientific basis as possible, as to the effects of night-time aircraft noise on sleep. The sleep study showed that external noise levels below 80 dBA were very unlikely to cause any increase in the normal rate of disturbance of someone's sleep; that with external noise levels between 80 and 95 dBA the likelihood of an average person being awakened was about 1 in 75; and that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall disturbance rates, although it was possible that the 2 to 3% of the population who were more sensitive to noise disturbance were twice as likely to be woken. According to the social survey, approximately 80% of those living in the Heathrow area had said that they were never or only sometimes woken up for any cause. Of those that were woken, 17% gave aircraft noise as the cause, 16% blamed a partner or a child and another 28.5% gave a variety of different reasons. Approximately 35% of those living near Heathrow said that if woken, for any reason, they found it difficult to get back to sleep.", "110. The Government submitted that the changes to the hours of restriction, the extension of the quota restrictions to place limits on many previously exempt types of aircraft and the restrictions on the scheduling for landing or taking off of the noisiest categories of aircraft over a longer night period made an exact comparison between the regimes before and after 1993 impossible.", "They recognised that there had been an increase in the number of movements between 6 a.m. and 6.30 a.m. in winter, since this time slot had been subject to restriction before 1993 and now fell outside the quota period. However, the Government contended that, during the core quota period of 11.30 p.m. to 6 a.m., there had been an improvement in the noise environment because of the measures taken, notably the introduction of the quota count system, to encourage the use of quieter aircraft at night.", "(b) The applicants", "111. The applicants, who accepted the Chamber's judgment as one way of applying the Convention to the facts of the case, underlined that only a very small percentage of flights take place between 11.30 p.m. and 6 a.m., and that there are hardly any flights before 4 a.m. at all, with an average of four aircraft landing between 4 a.m. and 4.59 a.m. in 2000, and eleven between 5 a.m. and 5.59 a.m.. They maintained that the disturbance caused by these flights was extensive because the applicants and large numbers of others were affected, and it is the nature of sleep disturbance that once people are awake even a few flights will keep them awake.", "112. The applicants also pointed out that the night noise they are subjected to is frequently in excess of international standards: the World Health Organisation sets as a guideline value for avoiding sleep disturbance at night a single noise event level of 60 dBA Lmax; almost all the applicants have suffered night noise events in excess of 80 dBA Lmax, and in one case as high as 90 dBA Lmax. Because of the logarithmic nature of the decibel scale, noise energy at 80 dBA Lmax is one hundred times the noise energy at 60 dBA Lmax, and in terms of subjective loudness is four times as loud.", "113. The applicants contended that the 1993 Scheme was bound to, and did, result in an increase in night flights and deterioration in the night noise climate, regardless of whether the position was measured by reference to the official night period from 11 p.m. to 7 a.m. or the night quota period from 11.30 a.m. to 6 a.m..", "114. The applicants pointed to the absence of any research into sleep prevention before the 1993 Scheme, and added that post-1993 studies and proposals did not amount to an assessment of the effect of night noise on sleep prevention. They further noted the absence of any government-commissioned research into the economic benefits claimed for night flights, seeing this omission as particularly serious given that many of the world's leading business centres (for example, Berlin, Zürich, Munich, Hamburg and Tokyo) have full night-time passenger curfews of between seven and eight hours.", "3. The third parties", "115. British Airways, whose submissions were supported by the British Air Transport Association (BATA) and the International Air Transport Association (IATA), submitted that night flights at Heathrow play a vital role in the United Kingdom's transport infrastructure, and contribute significantly to the productivity of the United Kingdom economy and the living standards of United Kingdom citizens. They contended that a ban on, or reduction in, night flights would cause major and disproportionate damage to British Airways' business, and would reduce consumer choice. The loss of night flights would cause significant damage to the United Kingdom economy.", "4. The Court's assessment", "116. The case concerns the way in which the applicants were affected by the implementation in 1993 of the new scheme for regulating night flights at Heathrow. The 1993 Scheme was latest in the series of restrictions on night flights which began at Heathrow in 1962 and replaced the previous five-year 1988 Scheme. Its aims included, according to the 1993 Consultation Paper (see paragraph 36 above), both protection of local communities from excessive night noise, and taking account of the wider economic implications. The undertaking given by the government in 1988 “not to allow a worsening of noise at night, and ideally to improve it” was maintained (see paragraphs 41 and 43 above). Specifically, the scheme replaced the earlier system of movement limitations with a regime which gave aircraft operators a choice, through the quota count, as to whether to fly fewer noisier aircraft, or more less noisy types (for details, see paragraphs 44-46 above). Although modified in some respects following various judicial review proceedings (see paragraphs 47-50 and 80-83 above) and as a result of further studies and consultations (see paragraphs 51-69 above), the quota count system introduced in 1993 has remained in place to the present day, the authorities continuing to monitor the situation with a view to possible improvements (see paragraphs 70-75 above).", "117. The 1993 Scheme accepted the conclusions of the 1992 sleep study (see paragraph 35 above) that for the large majority of people living near airports there was no risk of substantial sleep disturbance due to aircraft noise and that only a small percentage of individuals (some 2 to 3%) were more sensitive than others. On this basis, disturbances caused by aircraft noise were regarded as negligible in relation to overall normal disturbance rates (see paragraph 40 above). The 1992 sleep study continued to be relied upon by the government in their 1998/99 review of the regulations for night flights, when it was acknowledged that further research was necessary, in particular as regards sleep prevention, and a number of further studies on the subject were commissioned (see paragraphs 58-59 and 73 above).", "118. The Court has no doubt that the implementation of the 1993 Scheme was susceptible of adversely affecting the quality of the applicants' private life and the scope for their enjoying the amenities of their respective homes, and thus their rights protected by Article 8 of the Convention. Each of the applicants has described the way in which he or she was affected by the changes brought about by the 1993 Scheme at the relevant time (see paragraphs 11-26 above), and the Court sees no reason to doubt the sincerity of their submissions in this respect. It is true that the applicants have not submitted any evidence in support of the degree of discomfort suffered, in particular they have not disproved the Government's indications as to the “objective” daytime noise contour measured at each applicant's home (ibid.). However, as the Government themselves admit, and as is evident from the 1992 sleep study on which they rely, sensitivity to noise includes a subjective element, a small minority of people being more likely than others to be woken or otherwise disturbed in their sleep by aircraft noise at night. The discomfort caused to the individuals concerned will therefore depend not only on the geographical location of their respective homes in relation to the various flight paths, but also on their individual disposition to be disturbed by noise. In the present case the degree of disturbance may vary somewhat from one applicant to the other, but the Court cannot follow the Government when they seem to suggest that the applicants were not, or not considerably, affected by the scheme at issue.", "119. It is clear that in the present case the noise disturbances complained of were not caused by the State or by State organs, but that they emanated from the activities of private operators. It may be argued that the changes brought about by the 1993 Scheme are to be seen as a direct interference by the State with the Article 8 rights of the persons concerned. On the other hand, the State's responsibility in environmental cases may also arise from a failure to regulate private industry in a manner securing proper respect for the rights enshrined in Article 8 of the Convention. As noted above (see paragraph 98), broadly similar principles apply whether a case is analysed in terms of a positive duty on the State or in terms of an interference by a public authority with Article 8 rights to be justified in accordance with paragraph 2 of this provision. The Court is not therefore required to decide whether the present case falls into the one category or the other. The question is whether, in the implementation of the 1993 policy on night flights at Heathrow Airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole.", "120. The Court notes at the outset that in previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic regime. Thus, in López Ostra, the waste-treatment plant at issue was illegal in that it operated without the necessary licence, and was eventually closed down ( López Ostra, cited above, pp. 46 ‑ 47, §§ 16-22). In Guerra and Others, the violation was also founded on an irregular position at the domestic level, as the applicants had been unable to obtain information that the State was under a statutory obligation to provide ( Guerra and Others, cited above, p. 219, §§ 25-27).", "This element of domestic irregularity is wholly absent in the present case. The policy on night flights which was set up in 1993 was challenged by the local authorities, and was found, after a certain amount of amendment, to be compatible with domestic law. The applicants do not suggest that the policy (as amended) was in any way unlawful at a domestic level, and indeed they have not exhausted domestic remedies in respect of any such claim. Further, they do not claim that any of the night flights which disturbed their sleep violated the relevant regulations, and again any such claim could have been pursued in the domestic courts under section 76(1) of the Civil Aviation Act 1982.", "121. In order to justify the night flight scheme in the form in which it has operated since 1993, the Government refer not only to the economic interests of the operators of airlines and other enterprises as well as their clients, but also, and above all, to the economic interests of the country as a whole. In their submission these considerations make it necessary to impinge, at least to a certain extent, on the Article 8 rights of the persons affected by the scheme. The Court observes that according to the second paragraph of Article 8 restrictions are permitted, inter alia, in the interests of the economic well-being of the country and for the protection of the rights and freedoms of others. It is therefore legitimate for the State to have taken the above economic interests into consideration in the shaping of its policy.", "122. The Court must consider whether the State can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by States in acting within their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue (see paragraph 103 above).", "123. The Court notes that the introduction of the 1993 Scheme for night flights was a general measure not specifically addressed to the applicants in this case, although it had obvious consequences for them and other persons in a similar situation. However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State's margin of appreciation (see Dudgeon, cited above, p. 21, § 52, and paragraph 102 above). Rather, the normal rule applicable to general policy decisions (see paragraph 97 above) would seem to be pertinent here, the more so as this rule can be invoked even in relation to individually addressed measures taken in the framework of a general policy, such as in Buckley, cited above (see paragraph 101). Whilst the State is required to give due consideration to the particular interests, the respect for which it is obliged to secure by virtue of Article 8, it must in principle be left a choice between different ways and means of meeting this obligation. The Court's supervisory function being of a subsidiary nature, it is limited to reviewing whether or not the particular solution adopted can be regarded as striking a fair balance.", "124. In the present case the Court first notes the difficulties in establishing whether the 1993 Scheme actually led to a deterioration of the night noise climate. The applicants contend that it did; the Government disagree. Statements in the 1998 Consultation Paper suggest that, generally, the noise climate around Heathrow may have improved during the night quota period, but probably deteriorated over the full night period (see paragraph 61 above). The Court is not able to make any firm findings on this point. It notes the dispute between the parties as to whether aircraft movements or quota counts should be employed as the appropriate yardstick for measuring night noise. However, it finds no indication that the authorities' decision to introduce a regime based on the quota count system was as such incompatible with Article 8.", "125. Whether in the implementation of that regime the right balance has been struck in substance between the Article 8 rights affected by the regime and other conflicting community interests depends on the relative weight given to each of them. The Court accepts that in this context the authorities were entitled, having regard to the general nature of the measures taken, to rely on statistical data based on average perception of noise disturbance. It notes the conclusion of the 1993 Consultation Paper that due to their small number sleep disturbances caused by aircraft noise could be treated as negligible in comparison to overall normal disturbance rates (see paragraph 40 above). However, this does not mean that the concerns of the people affected were totally disregarded. The very purpose of maintaining a scheme of night flight restrictions was to keep noise disturbance at an acceptable level for the local population living in the area near the airport. Moreover, there was a realisation that in view of changing conditions (increase of air transport, technological advances in noise prevention, development of social attitudes, etc.) the relevant measures had to be kept under constant review.", "126. As to the economic interests which conflict with the desirability of limiting or halting night flights in pursuance of the above aims, the Court considers it reasonable to assume that those flights contribute at least to a certain extent to the general economy. The Government have produced to the Court reports on the results of a series of inquiries on the economic value of night flights, carried out both before and after the 1993 Scheme. Even though there are no specific indications about the economic cost of eliminating specific night flights, it is possible to infer from those studies that there is a link between flight connections in general and night flights. In particular, the Government claim that some flights from Far-East destinations to London could arrive only by departing very late at night, giving rise to serious passenger discomfort and a consequent loss of competitiveness. One can readily accept that there is an economic interest in maintaining a full service to London from distant airports, and it is difficult, if not impossible, to draw a clear line between the interests of the aviation industry and the economic interests of the country as a whole. However, airlines are not permitted to operate at will, as substantial limitations are put on their freedom to operate, including the night restrictions which apply at Heathrow. The Court would note here that the 1993 Scheme which was eventually put in place was stricter than that envisaged in the 1993 Consultation Paper, as even the quietest aircraft were included in the quota count system. The Government have in addition resisted calls for a shorter night quota period, or for the lifting of night restrictions. The Court also notes subsequent modifications to the system involving further limitations for the operators, including, inter alia, the addition of an overall maximum number of permitted aircraft movements (see paragraph 50 above) and reduction of the available quota count points (see paragraph 66 above).", "127. A further relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of aircraft noise generally, including night noise. A number of measures are referred to above (see paragraph 74). The Court also notes that the applicants do not contest the substance of the Government's claim that house prices in the areas in which they live have not been adversely affected by the night noise. The Court considers it reasonable, in determining the impact of a general policy on individuals in a particular area, to take into account the individuals' ability to leave the area. Where a limited number of people in an area (2 to 3% of the affected population, according to the 1992 sleep study) are particularly affected by a general measure, the fact that they can, if they choose, move elsewhere without financial loss must be significant to the overall reasonableness of the general measure.", "128. On the procedural aspect of the case, the Court notes that a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake. However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In this respect it is relevant that the authorities have consistently monitored the situation, and that the 1993 Scheme was the latest in a series of restrictions on night flights which stretched back to 1962. The position concerning research into sleep disturbance and night flights is far from static, and it was the government's policy to announce restrictions on night flights for a maximum of five years at a time, each new scheme taking into account the research and other developments of the previous period. The 1993 Scheme had thus been preceded by a series of investigations and studies carried out over a long period of time. The particular new measures introduced by that scheme were announced to the public by way of a Consultation Paper which referred to the results of a study carried out for the Department of Transport, and which included a study of aircraft noise and sleep disturbance. It stated that the quota was to be set so as not to allow a worsening of noise at night, and ideally to improve the situation. This paper was published in January 1993 and sent to bodies representing the aviation industry and people living near airports. The applicants and persons in a similar situation thus had access to the Consultation Paper, and it would have been open to them to make any representations they felt appropriate. Had any representations not been taken into account, they could have challenged subsequent decisions, or the scheme itself, in the courts. Moreover, the applicants are, or have been, members of HACAN (see paragraph 1 above), and were thus particularly well-placed to make representations.", "129. In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights.", "130. There has accordingly been no violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "131. The applicants contended that judicial review was not an effective remedy in relation to their rights under Article 8 of the Convention, in breach of Article 13.", "Article 13 provides:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "132. The Government disputed the applicants' contention that there had been a violation of Article 13.", "A. The Chamber's judgment", "133. In its judgment of 2 October 2001, the Chamber held that the scope of review by the domestic courts did not allow consideration of whether the increase in night flights under the 1993 Scheme represented a justifiable limitation on the Article 8 rights of those who live in the vicinity of Heathrow Airport (see paragraphs 115 and 116 above).", "B. The parties' submissions", "1. The Government", "134. In their letter requesting that the case be referred to the Grand Chamber, the Government made no reference to Article 13 of the Convention. In subsequent communications they referred back to the pleadings before the Commission and the Chamber, summarised at paragraphs 112 and 113 of the Chamber's judgment, in which they contended that Article 13 was not applicable or, in the alternative, that the scope of judicial review was sufficient to satisfy the requirements of that provision. At the hearing of 13 November 2002 the Government underlined that the present case concerned positive rather than negative obligations, and pointed to similarities between the judicial review proceedings in the United Kingdom and the Convention approach.", "2. The applicants", "135. The applicants contended, as they had before the Chamber, that they had no private-law rights in relation to excessive night noise, as a consequence of the statutory exclusion of liability in section 76 of the Civil Aviation Act 1982. They submitted that the limits inherent in an application for judicial review meant that it was not an effective remedy. They added that in R. (Daly) v. Secretary of State for the Home Department ([2001] 2 Appeal Cases 532), the House of Lords had confirmed the inadequacy of the approach in R. v. Minister of Defence, ex parte Smith ([1996] Queen's Bench Reports 517).", "C. The third parties", "136. The third parties did not comment on the Article 13 issues.", "D. The Court's assessment", "137. As the Chamber observed, Article 13 has been consistently interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23-24, § 54). In the present case, it has not found a violation of Article 8, but the Court considers that confronted with a finding by the Chamber that the Article 8 issues were admissible and indeed that there was a violation of that provision, it must accept that the claim under Article 8 was arguable. The complaint under Article 13 must therefore be considered.", "138. The Court would first reiterate that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 62, § 40). Similarly, it does not allow a challenge to a general policy as such. Where an applicant has an arguable claim to a violation of a Convention right, however, the domestic regime must afford an effective remedy (ibid., p. 62, § 39).", "139. As the Chamber found, section 76 of the 1982 Act prevents actions in nuisance in respect of excessive noise caused by aircraft at night. The applicants complain about the flights which were permitted by the 1993 Scheme, and which were in accordance with the relevant regulations. No action therefore lay in trespass or nuisance in respect of lawful night flights.", "140. The question which the Court must address is whether the applicants had a remedy at national level to “enforce the substance of the Convention rights ... in whatever form they may happen to be secured in the domestic legal order” (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, pp. 38-40, §§ 117-27). The scope of the domestic review in Vilvarajah, which concerned immigration, was relatively broad because of the importance domestic law attached to the matter of physical integrity. It was on this basis that judicial review was held to comply with the requirements of Article 13. In contrast, in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999-VI), the Court concluded that judicial review was not an effective remedy on the ground that the domestic courts defined policy issues so broadly that it was not possible for the applicants to make their Convention points regarding their rights under Article 8 in the domestic courts.", "141. The Court observes that judicial review proceedings were capable of establishing that the 1993 Scheme was unlawful because the gap between government policy and practice was too wide (see R. v. Secretary of State for Transport, ex parte Richmond LBC (no. 2) [1995] Environmental Law Reports 390). However, it is clear, as noted by the Chamber, that the scope of review by the domestic courts was limited to the classic English public-law concepts, such as irrationality, unlawfulness and patent unreasonableness, and did not at the time (that is, prior to the entry into force of the Human Rights Act 1998) allow consideration of whether the claimed increase in night flights under the 1993 Scheme represented a justifiable limitation on the right to respect for the private and family lives or the homes of those who live in the vicinity of Heathrow Airport.", "142. In these circumstances, the Court considers that the scope of review by the domestic courts in the present case was not sufficient to comply with Article 13.", "There has therefore been a violation of Article 13 of the Convention.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "143. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "144. The applicants, referring to the Chamber's judgment, considered that a modest award should be made in relation to non-pecuniary damage.", "145. The Government took the view that a finding of a violation would constitute in itself sufficient just satisfaction in respect of a violation of either Article 8 or Article 13.", "146. The Chamber awarded the applicants the sum of 4,000 pounds sterling (GBP) each for non-pecuniary damage in respect of the violations it found of Articles 8 and 13.", "147. The Court has found a violation of the procedural right to an effective domestic remedy under Article 13 of the Convention in respect of the applicants' complaints under Article 8, but no violation of the substantive right to respect for private life, family life, home and correspondence under Article 8 itself.", "148. The Court notes that in Camenzind v. Switzerland (judgment of 16 December 1997, Reports 1997-VIII, pp. 2897-98, § 57) the Court found a violation of Article 13 in relation to the applicant's claim under Article 8, but no substantive violation of the Convention. In that case the Court considered that the judgment constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage.", "Furthermore, in the present case, the violation of Article 13 derived, not from the applicants' lack of any access to the British courts to challenge the impact on them of the State's policy on night flights at Heathrow Airport, but rather from the overly narrow scope of judicial review at the time, which meant that the remedy available under British law was not an “effective” one enabling them to ventilate fully the substance of their complaint under Article 8 of the Convention (see paragraphs 140-42 above).", "This being so, the Court considers that, having regard to the nature of the violation found, the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage.", "B. Costs and expenses", "149. The applicants claimed a total of GBP 153,867.56 plus GBP 24,929.55 value-added tax (VAT) in respect of the costs before the Chamber, and an additional GBP 154,941.48 plus GBP 23,976.82 VAT (totalling GBP 178,918.30) before the Grand Chamber.", "150. The Government made a number of comments on the costs and expenses before the Grand Chamber. They challenged the rates charged by the solicitors involved, and considered that the time billed by the solicitors was excessive. They also considered that the fees charged by counsel and the applicants' experts were excessive. Overall, they suggested GBP 109,000 as an appropriate figure for the Grand Chamber costs and expenses.", "151. The Chamber reduced the costs and expenses claimed by the applicants in the proceedings up to then from GBP 153,867.56 to GBP 70,000.", "152. Costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum (see The Sunday Times v. the United Kingdom (no. 1) (Article 50), judgment of 6 November 1980, Series A no. 38, p. 13, § 23). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).", "153. The Court notes that whilst the Chamber found a violation of both Articles 8 and 13 of the Convention, the Grand Chamber has found solely a violation of Article 13 in relation to the applicants' claim under Article 8. Whilst this difference between the findings should be reflected in the award of costs, the Grand Chamber should not lose sight of the fact that Article 13 cannot stand alone. Without an “arguable claim” in respect of the substantive issues, the Court would have been unable to consider Article 13 (see, for example, Boyle and Rice, cited above, pp. 23-24, §§ 52 and 54). The award of costs should therefore reflect the work undertaken by the applicants' representatives on the Article 8 issues to a certain extent, even if not to the same extent as if a violation of Article 8 had also been found.", "154. The Court awards the applicants the sum of 50,000 euros, including VAT, in respect of costs and expenses.", "C. Default interest", "155. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "8. The applicant was born in 1948 and lives in Valencia.", "A. Background to the case", "9. The applicant has lived in a flat in a residential quarter of Valencia since 1970.", "10. Since 1974 the Valencia City Council has allowed licensed premises such as bars, pubs and discotheques to open in the vicinity of her home, making it impossible for people living in the area to sleep.", "11. Local residents first complained about vandalism and noise in the locality before 1980.", "12. In view of the problems caused by the noise, the Valencia City Council resolved on 22 December 1983 not to permit any more night clubs to open in the area. However, the resolution was never implemented and new licences were granted.", "13. In 1993 the City Council commissioned a report by an expert. The expert found that the noise levels were unacceptable and exceeded permitted levels. At 3.35 a.m. on Saturdays they were in excess of 100 dBA Leq (decibels), ranging from 101 to 115.9 dBA Leq.", "14. In a report of 31 January 1995 the police informed the Valencia City Council that nightclubs and discotheques in the sector in which the applicant lived did not systematically close on time. They said that they were able to confirm that the local residents ’ complaints were founded.", "15. On 28 June 1996 the City Council approved a new bylaw on noise and vibrations, which was published on 23 July 1996 in the Official Gazette of Valencia province. Article 8 of the bylaw lays down that in a family residential area (such as the one in which the applicant lives) external noise levels were not to exceed 45 dBA Leq between 10 p.m. and 8 a.m. Article 30 of the bylaw defines “acoustically saturated zones” as areas in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance.", "16. Lastly, the bylaw specified the conditions that had to be satisfied for an area to be designated an “acoustically saturated zone” ( zona acústicamente saturada ) and the consequences of designation, which included a ban on new activities (such as nightclubs and discotheques) that led to acoustic saturation.", "17. Following a resolution of the Valencia City Council sitting in plenary session on 27 December 1996, which was published in the Official Gazette of the Valencia province on 27 January 1997, the area in which the applicant lived was designated an acoustically saturated zone.", "18. Nevertheless, on 30 January 1997 the City Council granted a licence for a discotheque to be opened in the building she lived in. The licence was subsequently declared invalid by a judgment of the Supreme Court of 17 October 2001.", "19. In order to determine whether the area should be designated an acoustically saturated zone, the City Council took various sound-level readings to monitor acoustic pollution there. In each of its reports the City Council laboratory indicated that the noise levels exceeded those permitted by the bylaw.", "B. Court proceedings", "20. The applicant was exasperated by the situation, which prevented her from sleeping and resting and caused her insomnia and serious health problems. On 21 August 1997 she lodged a preliminary claim with the Valencia City Council in which she relied on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to the privacy and inviolability of the home). She sought 3,907 euros (650,000 pesetas) for the damage she had sustained and the cost of installing double glazing.", "21. Having received no reply from the authorities and in accordance with the Fundamental Rights (Protection) Act (Law no. 62/1978), the applicant lodged an application for judicial review with the Valencia High Court of Justice on 25 November 1997, alleging a violation of Articles 15 and 18 § 2 of the Constitution.", "22. On 2 October 1997 the Valencia City Council lodged its written observations. It submitted that the application was premature and should be declared inadmissible, as the Council could still find a solution. This preliminary objection was dismissed in a decision of 27 October 1997.", "23. On 11 December 1997 the representative of state council ’ s office argued that the court should find in favour of the applicant. He considered that there had been a violation of Articles 15 and 18 § 2 of the Constitution and that the applicant ’ s claim for damages was justified.", "24. In a judgment of 21 July 1998, delivered after an adversarial hearing in public, the Valencia High Court of Justice dismissed the application for judicial review. It found that the readings had been taken in the entrance hall to the building, not in the applicant ’ s flat, and could not entail a violation of Articles 15 and 18 § 2 of the Constitution; it also noted that the medical expert ’ s report stated only that the applicant had been receiving treatment for insomnia for several years, without indicating the length of or reason for such treatment.", "25. On 9 October 1998 the applicant lodged an amparo appeal with the Constitutional Court. Relying on Articles 14 (equality) and 24 (right to a fair hearing) of the Constitution, she complained that the High Court of Justice had not given sufficient reasons in its judgment or assessed the evidence. She also complained under Articles 15 and 18 § 2 of the Constitution of a violation of her rights to life, physical and mental integrity, privacy and the inviolability of the home.", "26. In a decision of 29 May 2000, the Constitutional Court declared the amparo appeal admissible and invited the applicant, the representative of state council ’ s office and the Valencia City Council to submit their observations. On the same day, it summoned the parties to a hearing on the merits on 16 May 2001.", "27. At the hearing on 16 May 2001, which was attended by all the parties, the applicant repeated her factual and legal submissions, stressing that there had been a violation of her fundamental rights.", "28. The Valencia City Council raised a number of preliminary objections. It further submitted that the appeal was confined to the decision of the Valencia High Court of Justice. With regard to the alleged violation of Articles 15 and 18 § 2 of the Constitution, it stated that there was no evidence of noise levels inside the applicant ’ s home and that the authority concerned should not bear sole responsibility for the noise to which the applicant had allegedly been exposed, as it had very limited means at its disposal to combat it.", "29. The representative of state council ’ s office agreed with the applicant that there had been a violation of Articles 15 and 18 § 2 of the Constitution. He argued that the amparo appeal should be regarded as hybrid, since it both accused the Valencia City Council of failing to defend the fundamental rights set out in Articles 15 and 18 of the Constitution and challenged the Valencia High Court of Justice ’ s decision, alleging a violation of Articles 14 and 24 of the Constitution also.", "30. As regards the violation of Articles 15 and 18 § 2 of the Constitution, the representative of state council ’ s office said that, in the light of the judgments of the European Court of Human Rights, in particular in the case of López Ostra v. Spain, there had been a violation of the applicant ’ s right to the inviolability of her home, as her home environment had been rendered unfit for ordinary everyday living. On the basis of the Court ’ s case-law, he sought a broader definition of the constitutional concept of the “home”.", "31. As regards noise levels inside the applicant ’ s home, the representative of state council ’ s office considered that the burden of proof had been reversed, as it was clear in the instant case that officials from the City Council had confirmed on a number of occasions that the maximum permitted noise levels were being exceeded. Consequently, he did not consider it necessary to require such proof from the applicant.", "32. In a judgment of 29 May 2001, which was served on 31 May 2001, the Constitutional Court dismissed the appeal after also dismissing the Valencia City Council ’ s preliminary objections. It ruled that the amparo appeal was hybrid in nature, that is to say that it alleged a violation of Articles 15 and 18 § 2 of the Constitution by the Valencia City Council and a breach of Articles 14 and 24 of the Constitution by the Valencia High Court of Justice.", "33. As regards the alleged violation of Articles 14 and 24 of the Constitution, the Constitutional Court began by noting that it was not entitled to substitute the High Court ’ s assessment of the evidence with its own. As to the applicant ’ s allegation that the judgment did not contain sufficient reasons, it noted that the High Court ’ s decision could not be regarded as arbitrary or unreasonable. It further observed that the applicant had not identified the decisions on which she relied in alleging discrimination. Thus, there was no evidence of any violation of Articles 14 and 24 of the Constitution.", "34. With regard to the alleged violation of Articles 15 (right to life and physical integrity) and 18 § 2 (right to privacy and to the inviolability of the home) of the Constitution, the Constitutional Court referred to the decisions in which the European Court of Human Rights had held that, in cases of exceptional gravity, repeated damage to the environment could infringe the right to respect for private and family life under Article 8 § 1 of the Convention, even if did not endanger health. The Constitutional Court held, however:", "“... there may only be a violation of Article 15 of the Constitution if the level of acoustic saturation to which a person is exposed as a result of an act or omission of a public authority causes serious and immediate damage to his or her health.”", "35. The Constitutional Court found that that test had not been satisfied in the case before it and pointed out:", "“... even though the appellant maintains that the noise levels to which she was exposed turned her into an insomniac, the only evidence she has adduced is a certificate stating that she was admitted to hospital and saw a doctor, without any indication of the period for which she had been suffering from lack of sleep or the cause thereof. ...”", "36. The Constitutional Court found that the applicant had not established a direct link between the noise and the damage she had sustained.", "37. As to the allegation of a violation of Article 18 of the Constitution, the Constitutional Court further found that she had not established the existence of a nuisance in her home that amounted to a violation of the constitutional provision. It stated:", "“... the appellant has confined herself to making a general complaint by stating that the origin of the noise was diffuse and not restricted to a single source of production, and that the acoustic saturation resulted from a combination of noises. ... On the contrary, her entire case is based on a few sound-level readings taken inside her home which gave disparate results ... and do not establish that there has been a violation of the right relied on. ...”", "38. By way of conclusion, the Constitutional Court dismissed the amparo appeal on the following ground:", "“Consequently, as regards the alleged violation of the rights relied on the amparo appeal must be dismissed, as the appellant has failed to prove the existence of a genuine effective breach of fundamental rights attributable to the Valencia City Council.”", "39. That judgment was delivered by the Constitutional Court sitting as a full court. However, two judges expressed concurring opinions. The first said that the judgment restricted the free development of the personality at home. He considered that the conditions that had to be satisfied for there to be a violation of fundamental rights in the case under consideration were unreasonable and he defended the need to speak of a triple layer of constitutional protection, ranging from the right to physical and moral integrity (Article 15 of the Constitution) to an environment that was suitable for personal development (Article 45 § 1 of the Constitution), via the right to privacy in the home (Article 18 § 2 of the Constitution).", "40. The second judge pointed out in his concurring opinion that there was a preliminary problem that had not been adequately dealt with, namely the degree to which the relevant authority was required to provide the requested protection. Determining the extent of that obligation was a prerequisite to establishing whether or not there existed a causal link between the authority ’ s failure to act and the alleged violation. The authorities were obliged to exercise their power when the breach of the fundamental rights attained a certain level of gravity." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. The Constitution", "41. The relevant provisions of the Constitution are as follows:", "Article 10 § 2", "“The provisions relating to the fundamental rights and freedoms recognised under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements which Spain has ratified in that sphere.”", "Article 15", "“Everyone shall have the right to life and to physical and mental integrity. ...”", "Article 18 § 2", "“The home shall be inviolable. ...”", "Article 45 § 1", "“Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it.", "...”", "Article 53 § 2", "“Every citizen shall be entitled to seek protection of the freedoms and rights recognised in Article 14 and in the first section of Chapter II by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and, in appropriate cases, by an appeal ( recurso de amparo ) to the Constitutional Court ...”", "B. The Fundamental Rights (Protection) Act (Law no. 62/1978)", "42. Section 6, which was repealed by the Administrative Courts Act of 13 July 1998 (Law no. 29/1998), read as follows:", "“... [a]n application for judicial review may be brought in accordance with the procedural rules set out in this section in respect of decisions of the public authorities that are subject to administrative law and liable to affect the exercise of the fundamental rights of the person...”", "C. The Constitutional Court Act", "43. The relevant parts of Article 44 of the Constitutional Court Act reads:", "“1. An amparo appeal for violations of rights and guarantees amenable to constitutional protection ... will lie only if:", "...", "(c) the party relying on the alleged violation formally pleads it in the relevant proceedings after becoming aware of its occurrence.”", "D. The bylaw on noise and vibrations issued by the Valencia City Council on 28 June 1986", "44. The relevant provisions of the bylaw provide:", "Article 8 § 1", "“Permitted external noise-reception levels shall be determined by reference to the main user of each of the areas marked on the city development plan and shall not exceed:", "Maximum reception levels:", "...", "Multiple family residence:", "Daytime (from 8 a.m. to 10 p.m. ): 55 dB (A)", "Night-time (from 10 p.m. to 8 a.m. ): 45 dB (A)", "...”", "Article 30", "“1. Zones that are acoustically saturated by additional causes are areas or places in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance.", "2. An area may be designated an acoustically saturated zone (ASZ) if, though individual activities are compliant with the levels set out in this bylaw, the level of disturbance due to external noise as referred to in Article 8 is exceeded twice-weekly in consecutive weeks, or three times intermittently over a period of 35 days, and exceeds 20 dB (A).”", "E. The expert report", "45. The relevant parts of the report drawn up by Mr X, a professor of applied physics, on the sound-level readings taken in the district in which the applicant lived in Valencia read as follows:", "“The results obtained from measurements taken by the Valencia University acoustic laboratory over a period of several years in the said area and measurements taken by other bodies showed that ambient noise levels in this area, in particular at nights and weekends (especially between 1 a.m. and 3 a.m.) are extremely high. At these periods in the area concerned the hourly equivalent sound levels (Leq) frequently exceed 70 dB (A) and the maximum corresponding levels exceed 80 dB (A).", "As a result, we can say that noise levels in dwellings in this urban area are intolerably high at night-time and, consequently, detrimental to the health and well-being of the residents.", "This conclusion is based on the fact that, even with the windows closed (including in the height of summer), indoor noise levels are very high. It should be noted that under the current regulations (building norm NBE-CA-88) the minimum insulation requirement for the frontage of buildings is 30 dB (A). In practice, that figure is never attained and is generally in the region of 15 to 20 dB (A).", "Consequently, in these circumstances, night-time noise levels inside the dwellings, for example in bedrooms overlooking the street, can be estimated at in the region of 50 dB (A), with maximum levels reaching approximately 60 dB (A). We would point out that this is a general estimate and is made without the need for specific measurements to be taken inside the dwellings concerned.", "We should explain here that the difference between 50 or 60 dB (A) and 30 dB (A) is enormous. Thus, an increase from 30 to 33 dB (A) does not represent a slight increase in noise (as a layman might think) but the doubling in intensity of the corresponding noise. An informed reading of this report is only possible if the meaning of the “decibel” unit used here is correctly understood.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "46. The applicant complained of noise and of being disturbed at night by nightclubs near her home. She alleged that the Spanish authorities were responsible and that the resulting onslaught of sound constituted a violation of her right to respect for her home, as guaranteed by Article 8, which provides :", "Article 8", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except as such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Submissions of the parties", "1. The applicant", "47. The applicant complained of inaction on the part of the local authorities in Valencia, in particular the City Council, which had failed to put a stop to the night-time disturbances. She said that the Government had not put forward any explanation for the failure to act.", "48. Firstly, although the Valencia City Council was not the direct source of the noise pollution, it had, in the applicant ’ s submission, caused the acoustic saturation by issuing an unlimited number of licences, without taking measures to comply with the law. The applicant referred to the principles that had been established in the case of Lopez Ostra v. Spain (judgment of 9 December 1994, Series A no. 303 ‑ C, § 51), which concerned the effects of pollution outside the home but also the frame of reference for fundamental rights, in particular the home. She added that the municipal bylaw required measurements of noise emissions from external sources to be taken at the front of the building in which the dwelling was located.", "49. In her additional observations of 14 September 2004, the applicant observed that the level of the night-time disturbance (from 10 p.m. to 6. 30 p.m.) caused by more than 127 nightclubs infringed the right to health, as indeed was confirmed by the World Health Organisation ’ s guidelines. Unlike the position in the case of Hatton and Others v. the United Kingdom [GC] (no. 36022/97, ECHR 2003-VIII), her home was neither within nor adjacent to an area of vital importance, such as an area relevant to a strategic transport or communications infrastructure. She stressed that her home was in an urban area, specifically, a residential one.", "2. The Government", "50. The Government submitted that the noise to which the applicant referred came from private activities and that, consequently, there had not been direct interference by the authorities in the right to the intimacy of the home and to respect for private and family life. They added that the Valencia City Council had taken various measures in order to solve the problem of acoustic pollution in the area in which the applicant lived. These included preparing and approving a comprehensive and stringent municipal bylaw, designating acoustically saturated zones and a policy of imposing penalties, withdrawing licences and prosecuting offenders.", "51. Even assuming that the applicant had been exposed from time to time to acoustic pollution and had been able to prove the effect of the noise inside her home, the relevant authorities had already taken sufficient measures to remedy the situation.", "52. In addition, the courts had noted in their decisions that the applicant had failed to establish that she had been exposed to noise inside her home emanating from night-time disturbances and that, in any event, Article 8 protection was restricted to the home and could not apply when the subject matter of the complaint was a nuisance outside the home. The Government accordingly maintained that no interference with the applicant ’ s right to respect for her home could be found.", "B. The Court ’ s assessment", "1. General principles", "53. Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect of the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom cited above, § 96).", "54. Thus in the case of Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, § 40), the Court declared Article 8 applicable because: “In each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In the aforementioned case of López Ostra v. Spain, which concerned noise pollution and a waste-treatment plant, the Court said: “severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In the case of Guerra and Others v. Italy (judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 57), the Court observed: “The direct effect of the toxic emissions on the applicants ’ right to respect for their private and family life means that Article 8 is applicable”. Lastly, in the case of Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference by third parties with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable.", "55. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities ’ adopting measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, among other authorities, Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1505, § 62; and Surugiu v. Romania, cited above, § 59). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others v. the United Kingdom, cited above, § 98).", "56. The Court reiterates that the Convention is intended to guarantee rights that are “practical and effective”, not “theoretical or illusory” (see, among other authorities, Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260-B, § 42).", "2. Application of the above principles in the instant case", "57. The present case does not concern interference by public authorities with the right to respect for the home, but their failure to take action to put a stop to third-party breaches of the right relied on by the applicant.", "58. The Court notes that the applicant lives in an area that is indisputably subject to night-time disturbances; this clearly unsettles the applicant as she goes about her daily life, particularly at weekends. The Court must now determine whether the nuisance caused by the noise attained the minimum level of severity required for it to constitute a violation of Article 8.", "59. The Government have argued that the domestic courts found that the applicant has failed to establish the noise levels inside her home. The Court considers that it would be unduly formalistic to require such evidence in the instant case, as the City authorities have already designated the area in which the applicant lives an acoustically saturated zone, which, according to the terms of the municipal bylaw of 28 June 1986, means an area in which local residents are exposed to high noise levels which cause them serious disturbance (see paragraph 44 above). In the present case, the fact that the maximum permitted noise levels have been exceeded has been confirmed on a number of occasions by council staff (see paragraphs 14 and 19 above). Consequently, there appears to be no need to require a person from an acoustically saturated zone such as the one in which the applicant lives to adduce evidence of a fact of which the municipal authority is already officially aware. Thus, in the domestic proceedings, the representative of state council ’ s office did not consider it necessary to require the applicant to adduce such evidence (see paragraph 31 above) and added that there had been a reversal of the burden of proof in the present case.", "60. In view of the volume of the noise – at night and beyond the permitted levels – and the fact that it continued over a number of years, the Court finds that there has been a breach of the rights protected by Article 8.", "61. Although the Valencia City Council has used its powers in this sphere to adopt measures (such as the bylaw concerning noise and vibrations) which should in principle have been adequate to secure respect for the guaranteed rights, it tolerated, and thus contributed to, the repeated flouting of the rules which it itself had established during the period concerned. Regulations to protect guaranteed rights serve little purpose if they are not duly enforced and the Court must reiterate that the Convention is intended to protect effective rights, not illusory ones. The facts show that the applicant suffered a serious infringement of her right to respect for her home as a result of the authorities ’ failure to take action to deal with the night-time disturbances.", "62. In these circumstances, the Court finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant ’ s right to respect for her home and her private life, in breach of Article 8 of the Convention.", "63. There has consequently been a violation of that provision.", "II. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "64. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "65. The applicant claimed 879 euros (EUR) on account of pecuniary damage for the double glazing she had had installed in her bedroom. She also claimed EUR 3,005 for non-pecuniary damage.", "66. The Government did not make any submissions on this point.", "67. The Court notes that the sole ground for awarding the applicant just satisfaction in the instant case is the failure of the relevant authorities to take the action they could reasonably have been expected to take to put a stop to the infringement of the applicant ’ s right to respect for her home. The Court therefore finds that there was a causal link between the violation of the Convention and any pecuniary damage sustained by the applicant. She is therefore entitled to an award under that head. Ruling on an equitable basis, as required by Article 41, it finds that the authorities ’ failure to take action undeniably caused the applicant non-pecuniary damage for which she should also receive compensation and awards her EUR 3,884 for pecuniary and non-pecuniary damage.", "B. Costs and expenses", "68. The applicant also claimed EUR 4,952.15 for the costs and expenses she had incurred before the domestic courts and the Court. In her statement of account, she breaks down her claim into (1) the fees and expenses of her representative in the proceedings before the domestic courts (EUR 2,091.53), (2) the fees and expenses of her representative in the proceedings before the European Court of Human Rights (EUR 2,091.53) and (3) the cost of translation services (EUR 769.10).", "69. The Government did not make any submissions on this point.", "70. Under the Court ’ s case-law, applicants may recover reimbursement of their costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum. In the instant case, and having regard to the material before it and the aforementioned criteria, the Court considers it reasonable to award the applicant EUR 4,500.", "C. Default interest", "71. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicants in application no. 43449/02, Ms Pepa Vladimirova Mileva and Ms Meri Vladimirova Mileva, were born in 1934 and 1936 respectively and live in Sofia. They are sisters.", "8. The applicants in application no. 21475/04, Mr Hristo Ivanov Evtimov, Ms Lilia Kirilova Evtimova and Ms Kalina Hristova Evtimova, were born in 1939, 1943 and 1977 respectively and live or lived in Sofia. The first two were husband and wife, and the third is their daughter. As mentioned in paragraph 2 above, Mr Hristo Evtimov died in 2007.", "A. The applicants and their flats", "9. At the material time the applicants in application no. 43449/02 (“the Milevi sisters ”), both of whom are retired, owned a flat on the first floor of entrance “B” of a U ‑ shaped block of flats in the centre of Sofia. Both of them had lived in that flat since 1963. They submitted that as a result of the events described below, they were forced to move out of the flat. On 11 March 2004 they sold it to a limited liability company for 61,000 euros. On 22 April 2004 they bought a smaller flat in another neighbourhood, and on 15 June 2004 went to live there.", "10. The applicants in application no. 21475/04 (“ the Evtimovi family ”) own and live in a flat on the first floor of entrance “C” of the same block of flats. Ms Kalina Evtimova ’ s daughter, born on 28 September 2000, also lives there.", "B. The flat converted into a computer club", "11. In May 2000 a company rented a flat on the ground floor of entrance “B” of the block, below the flat of the Milevi sisters. It started operating a computer club there, without obtaining the necessary permits.", "12. In March 2002 the club moved into a flat situated opposite the original one, again on the ground floor of entrance “B”. That flat was located diagonally below both the flat of the Milevi sisters and that of the Evtimovi family.", "13. According to four affidavits, the first of which was drawn up by Mr Hristo Evtimov and Ms Lilia Evtimova, and the rest by witnesses asked by the applicants to describe the situation, the club had forty ‑ six computers and two vending machines. It was open twenty ‑ four hours a day, seven days a week. The services it offered were chiefly computer gaming and Internet surfing. The club ’ s clients, mostly teenagers and young adults, often gathered in front of the building, chatting loudly and shouting, drinking alcohol, and smoking cigarettes and allegedly even narcotic drugs. They would often break the door of the building and enter the passageway, where they drank and smoked. The noise and the vibrations generated by them, both while inside the club and while entering or leaving the premises, could be clearly heard and felt in the flats of the Milevi sisters and of the Evtimovi family.", "14. The Milevi sisters produced a certificate in which their general practitioner attested that from the middle of 2002 both of them started complaining of constant headaches, insomnia, irritability and anxiety, had high blood pressure, and had lost weight. In 2003 Ms Meri Mileva developed a sinus tachycardia. As a result of her increasingly frequent cardiac crises, she had to be hospitalised. According to the doctor, those health problems were due to the constant disturbance and noise caused by the club ’ s operations, and gradually subsided after the Milevi sisters went to live elsewhere in June 2004.", "1. The residents ’ resolution to ban the club ’ s operations", "15. On 28 June 2002 the general meeting of the block ’ s occupants resolved, by twelve votes and three abstentions, that the club ’ s operations should be stopped, and that no commercial activities should be allowed in the building. It stated that the club ’ s operations caused serious disturbances to all inhabitants. The club ’ s manager, who was present at the meeting, said that he disagreed and would do everything necessary to keep the club open.", "2. The applicants ’ complaints to the police", "16. Having earlier made numerous complaints by telephone, the applicants made written complaints to the police on 28 May, 13 and 20 June, and 19 and 20 November 2002. They submitted that those complaints had prompted only a cursory inspection of the club, which had produced no tangible results.", "17. On 21 February 2003 the head of the local police station told the applicants that when asked to do so, the club ’ s manager had been able to produce all necessary permits, and that no breaches of public order had been found. The manager had been warned not to allow breaches of public order and had undertaken to inform the police of any disturbances. The head of the local station further said that the police had no power to shut down commercial premises. On 26 February 2003 the applicants protested against the passiveness of the police.", "18. On 8 November 2004 the club ’ s manager called at the Evtimovi ’ s flat and allegedly threatened Mr Evtimov with violence if he persisted in his efforts to have the club ’ s operations stopped. The same day Mr Evtimov complained to the police, but apparently nothing ensued.", "3. The applicants ’ complaints to the municipal authorities", "19. On 27 May 2002 the applicants asked the borough mayor to order the cessation of the club ’ s operations. The same day the municipal services wrote to the police, informing them that the club was operating without the requisite licence.", "20. On 7 June 2002 municipal inspectors visited the premises and noted that the club was operating unlawfully. On 24 June 2002 the municipality sent the file to the Sofia Regional Building Control Directorate.", "21. However, on 26 June 2002 the chief architect of the municipality approved a plan for the conversion of the flat into commercial premises. On 1 July 2002 Mr Hristo Evtimov, acting in his capacity as chairman of the condominium, contested that decision before the Sofia Regional Building Control Directorate. On 23 August 2002 the Directorate, while noting that section 38 of the 2001 Territorial Organisation Act (see paragraphs 50 and 51 below) had not been complied with, said that that did not constitute grounds for invalidating the legalisation of the conversion under section 156(2) of the Act (see paragraph 52 below) and upheld the mayor ’ s decision.", "22. Despite the applicants ’ repeated complaints to the municipal authorities, they took no further action.", "23. On 28 November 2003 the chief architect of the municipality granted the club an operating permit, on the condition that its clients entered through the back door and not through the passageway used by the building ’ s residents. On 7 July 2004 the applicants challenged that decision before the Sofia Regional Building Control Directorate, arguing that the condition imposed by the mayor was impossible to comply with, as the only access to the back door was through the passageway. They requested that the permit be set aside and that the club be closed. It does not seem that the permit was annulled.", "4. The building control authorities ’ prohibition on use of the flat and the ensuing judicial review proceedings", "24. On 28 May 2002 the applicants requested the Sofia Regional Building Control Directorate to prohibit the use of the flat.", "25. In a decision of 2 July 2002 the Directorate prohibited the use of the flat. It also ordered that its electricity and water supplies be cut off. It noted that the flat had been converted into a computer club without a building permit and that the club had started operating without a use permit, in breach of section 178(1) of the 2001 Territorial Organisation Act (see paragraph 53 below). It also observed, referring to section 217(1)(3) of the Act ( ibid. ), that any application for judicial review of the decision would not automatically suspend its enforcement.", "26. The flat ’ s owner appealed to the National Building Control Directorate. On 4 November 2002 the Directorate rejected the appeal as inadmissible, noting that the impugned decision was not subject to an appeal to a higher authority but only to judicial review. On 7 November 2002 the National Directorate instructed the Regional Directorate to enforce the decision.", "27. On 15 October 2002 the flat ’ s owner sought judicial review. She asked the court to suspend enforcement as an interim measure.", "28. The same day the Sofia City Court ( Софийски градски съд ) granted her request. It noted that by law the decision was enforceable immediately, even if it had been challenged by way of judicial review. However, the courts could in their discretion suspend enforcement and it was justified in doing so because the file did not contain any indications that the conditions envisaged by section 16 of the 1979 Administrative Procedure Act, which governed the enforcement of non ‑ final administrative decisions (see paragraph 70 below), were fulfilled. In addition, the court allowed the condominium and the company operating the computer club to intervene in the proceedings, and fixed a hearing on the merits of the case for 25 February 2003.", "29. On 27 February 2003 the applicants appealed to the Supreme Administrative Court ( Върховен административен съд ). On 19 June 2003 it reversed the lower court ’ s ruling, saying that the courts could suspend the enforcement of the decision only if it would engender irreparable harm or frustrate the object of the proceedings. However, the flat ’ s owner had not shown that these prerequisites were satisfied, nor had the lower court made such a finding. It had merely referred to section 16 of the 1979 Administrative Procedure Act, which was not applicable.", "30. The applicants subsequently asked the Sofia Regional Building Control Directorate to enforce the decision. It seems that they did not receive a reply.", "31. On 10 July 2003 the Sofia City Court, acting pursuant to a fresh request by the flat ’ s owner, again suspended the enforcement of the decision. It held that its immediate enforcement would impede the proper course of the main proceedings and result in damage for the club ’ s owner. There was no indication that the life or health of others were at risk, that with time enforcement would grow more difficult or be blocked, or that important State interests were at stake.", "32. On an appeal by the applicants, on 8 October 2003 the Supreme Administrative Court reversed that order. It found that in principle administrative decisions should be immediately enforced only if, inter alia, that was necessary to safeguard the life or health of others, or to protect important State or public interests. However, where the law specifically provided for the immediate enforcement of certain decisions, there was a presumption that such a need existed. Therefore, it was possible to suspend the enforcement of a decision which was immediately enforceable by operation of law only if that would put at risk an opposing interest of the same intensity as the one sought to be protected, which was not the case. Any pecuniary damage sustained by the club ’ s owner was not of such a nature, as it could be fully compensated for by the payment of money.", "33. After that the applicants made numerous requests for the decision to be enforced. However, they were informed that on 28 November 2003 the local authorities had permitted the use of the club (see paragraph 23 above), and that therefore the decision could not be enforced. The applicants complained about that situation to the prosecuting authorities, but to no avail.", "34. In the meantime, the Sofia City Court tried to hold a first hearing on the merits of the case on 25 February 2003. However, the flat ’ s owner had not been properly summoned and the court adjourned the proceedings. It fixed the next hearing for 26 March 2004. On 11 December 2003 the applicants complained about the delay to the Supreme Administrative Court. On 5 February 2004 that court, noting that according to section 219 of the 2001 Territorial Organisation Act (see paragraph 53 in fine below), the proceedings had to follow a fast ‑ track procedure, instructed the Sofia City Court to bring forward the date of its hearing. The Sofia City Court accordingly rescheduled the hearing for 9 March 2004. However, as the flat ’ s owner had again not been properly summoned, the hearing was adjourned.", "35. On 14 April 2004 the applicants made a new complaint about delays. On 17 May 2004 the Supreme Administrative Court rejected it, finding that the Sofia City Court had made all possible efforts to allow the proper progress of the proceedings and that, in view of that court ’ s busy calendar, the listing of a hearing for 6 July 2004 did not amount to an unjustified delay.", "36. At the hearing on 6 July 2004 the Sofia City Court started to examine the merits of the case. At the next hearing, held on 21 September 2004, the flat ’ s owner declared that she wished to withdraw her application for judicial review, and the court accordingly discontinued the proceedings.", "5. Other developments", "37. On 8 November 2004 the Sofia Regional Building Control Directorate found that the computer club was operating in breach of the condition laid down in the permit of 28 November 2003 (see paragraph 23 above), as its clients were entering through the passageway used by the building ’ s residents and not through a separate entrance.", "38. On 16 November 2004 the flat ’ s owner informed the authorities that the computer club had ceased its operations. On 25 November 2004 the Sofia Regional Building Control Directorate, having found after an inspection on 19 November 2004 that the vending machines and two computers had still not been taken out of the club, again prohibited its use and ordered that its electricity and water supplies be cut off.", "39. Some time after that the flat was rented by another company, which apparently used it as an office until January 2008.", "40. In the meantime, on 1 September 2003, the Milevi sisters asked the Sofia City Court to exempt them from paying court fees for a tort claim which they intended to bring against the persons operating the club. On 12 September 2003 the court ’ s president refused to examine the request, saying that it could be made only if a claim had already been brought, or if it had been lodged concomitantly with the statement of claim. That ruling was later upheld by the Sofia Court of Appeal and the Supreme Court of Cassation. It seems that the Milevi sisters did not bring a claim against the persons operating the club.", "C. The flat converted into an electronic games club", "41. Having obtained a building permit on 11 May 2002, in August 2003 the owner of the flat occupied by the computer club until March 2002 (see paragraph 12 above) started transforming it into an electronic games club. The works involved pulling down internal walls, installation of high ‑ voltage cables and changing the flat ’ s windows.", "42. On 29 August 2003 the Milevi sisters complained about that to the Sofia Regional Building Control Directorate, saying that no assent had been sought from them under section 38 of the 2001 Territorial Organisation Act (see paragraphs 50 and 51 below). On 29 September 2003 the Directorate replied that the works were lawful as they had been carried out under a permit.", "43. The Milevi sisters then complained to the National Building Control Directorate. On 2 December 2003 it instructed the Regional Directorate to check the lawfulness of the works. Apparently nothing ensued.", "44. In the meantime, on 13 October 2003, the Milevi sisters contested the building permit before the Sofia Regional Building Control Directorate. On 26 November 2003 the Directorate rejected the challenge as being out of time. On an appeal by the Milevi sisters, on 5 April 2004 the Sofia City Court set that decision aside and instructed the Directorate to examine the challenge on the merits. The Directorate appealed against that ruling, but on 26 October 2004 the Supreme Administrative Court upheld it.", "45. In the meantime, the Milevi sisters made numerous complaints about the conversion to both the building control authorities and the police, apparently to no avail.", "D. The flat converted into an office", "46. In 2002 a company rented the flat adjacent to the flat of the Milevi sisters and started using it as an office. The Milevi sisters asserted that after that they could hear telephones ringing and conversations, loud voices, moving of furniture and banging of doors.", "47. On 18 April 2002 the applicants complained to the municipality, stating that the company had not sought their assent for using the flat as an office, in breach of section 38(3) of the 2001 Territorial Organisation Act (see paragraph 50 below ). On 17 June 2002 municipal inspectors visited the building and noted that the flat was being used as an office. However, the owner was not present and the inspectors were not allowed access to the premises to make more detailed findings. They sent a summary of their findings to the Sofia Regional Building Control Directorate.", "48. After repeated complaints by the Milevi sisters, on 15 November 2002 the Directorate instructed the municipality to gather more evidence that the flat was indeed being used as commercial premises entailing regular visits by outsiders. As a result, on 30 January 2003 the inspectors made a second visit. However, they were refused access to the flat and the police, who had been called in aid, did not show up.", "49. Apparently the office continued operating undisturbed throughout that period." ]

[ "II. RELEVANT DOMESTIC LAW", "A. The 2001 Territorial Organisation Act", "50. Section 38(3) of the 2001 Territorial Organisation Act ( Закон за устройство на територията ) provides that a flat in a condominium may be converted into an office, entailing visits by outsiders, if it is on the ground floor and if all sanitary, hygienic, fire ‑ protection and technical requirements have been complied with. The conversion must be approved expressly, in writing and before a notary by all immediate neighbours of the premises whose conversion is proposed. Exceptionally, a flat on a higher floor may also be converted into an office, but in that case the conversion must be approved not only by the immediate neighbours but also by the condominium ’ s general meeting.", "51. Section 38(4) provides that a flat on the ground floor of a condominium may be converted into a shop or other commercial premises, if all sanitary, hygienic, fire ‑ protection and technical requirements have been complied with and if a separate entrance which does not affect the passageway to the residential part of the building is made possible. The conversion must be approved by the condominium ’ s general meeting and requires the express written assent, certified by a notary, of all immediate neighbours of the premises whose conversion is proposed.", "52. Under section 149(1) and (2) (2), a permit allowing the reconstruction of an existing building must be brought to the attention of the persons whose approval is required under section 38. They may challenge it before the Regional Building Control Directorate (section 149(3)). Under section 156(1), as worded between January 2001 and July 2003, building permits could, as a rule, be revoked only before the works had started. They could be revoked after that only if they were contrary to the zoning plan, substantially deviated from the building regulations and norms as regards distances to neighbouring buildings, or substantially deviated from the applicable safety requirements (section 156(2), as in force between January 2001 and July 2003).", "53. Under section 178(1), as in force at the material time, it was prohibited to use a building or a part of it before the issuing of a use permit. If a building or a part of it was being used without such permit, the National Building Control Directorate had to ban the use and order that the building ’ s electricity and water supplies and heating be cut off (section 178(5), as in force at the material time). Applications for judicial review of such decisions do not have suspensive effect (section 217(1)(3)). Since such decisions cannot be appealed against before a higher administrative authority, they are immediately enforceable. However, their enforcement may be suspended by the court (section 217(2)). Under section 219, as in force at the material time, the courts had to examine applications for judicial review of such decisions in special fast ‑ track proceedings under Articles 126b ‑ 126e of the 1952 Code of Civil Procedure.", "54. Under section 222(2)(2) ( now section 222(2)(4)), the National Building Control Directorate enforces decisions prohibiting the use of buildings or parts of them. In so doing, it may use technical devices and means (section 222(3)). If it encounters resistance, it may enlist the help of the police (section 222(5)).", "B. The 1951 Property Act", "55. Section 50 of the 1951 Property Act ( Закон за собствеността ) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of the neighbouring properties.", "56. Under section 45(1), the owner of a flat in a condominium may be evicted by resolution of the general meeting of the condominium if he or she, among other things, systematically breaches the internal regulations of the building or the resolutions of the general meeting for the internal order of the building, or acts contrary to good morals. However, the owner may request the district court to annul the resolution (section 46(1)). The eviction may take place only if the owner has not stopped the breach despite having been warned in writing that he or she will be evicted (section 45(2)). The district court may issue a writ of execution pursuant to the resolution, once it has become final (section 46(2)). According to a 1959 decision of the former Supreme Court, that does not preclude the owner from challenging his eviction in subsequent enforcement proceedings ( реш. № 4028 от 23 ноември 1959 г. по гр. д. № 5667/ 19 59 г., ВС, I г. о. ). There is no reported case ‑ law on the application of those provisions in recent decades. In May 1957 the former Supreme Court described that procedure as a means of last resort, to be used only where the owner persisted in his breach ( реш. № 1260 от 9 май 1957 г. по гр. д. № 3231/ 19 57 г., ВС, IV г. о. ).", "57. Under section 109(1), an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights.", "58. In an interpretative decision of 6 February 1985 ( тълк. реш. № 31 от 6 февруари 1985 г. по гр. д. № 10/1984 г ., ОСГК на ВС ) the former Supreme Court explained that this claim ( actio negatoria ) provided protection against unjustified interferences – whether direct or indirect – which prevented an owner from using fully his property. It can be used to declare such interferences unlawful and enjoin the persons concerned to stop them and remove their effects (for instance, demolish a building in a neighbouring property). Unlike decisions of the building control authorities, the courts ’ judgments pursuant to such claims finally determine the disputes between the aggrieved owner and the perpetrator of the interference, and may be executed by force.", "59. The claim may be brought by the owner against any person, irrespective of whether or not they are owners of an adjoining property ( реш. № 1544 от 30 октомври 2002 г. по гр. д. № 18899/2001 г ., ВКС, IV г. о. ). It may be brought by the owner of a flat in a condominium against the owner of another flat ( реш. № 1818 от 13 ноември 2002 г. по гр. д. № 2183/2001 г., ВКС, ІV г. о. ). It may be joined to a tort claim in respect of any past loss ( реш. № 1272 от 16 септември 2004 г. по гр. д. № 660/2003 г., ВКС, ІV г. о. ).", "60. Noise nuisance is actionable under section 109(1) ( реш. № 133 от 29 декември 198 8 г. по гр. д. № 100 /198 8 г ., ОСГК на ВС ).", "61. For the purposes of section 109(1), a distinction needs to be made between buildings on neighbouring properties and activities taking place there; while the former may be lawful and thus not actionable, the latter may unduly impinge on neighbours ’ rights and thus be subject to injunctive relief ( реш. № 216 от 4 март 1985 г. по гр. д. № 43/85 г., ВС, IV г. о. ).", "62. In some cases ( реш. № 1291 от 16 ноември 1992 г. по гр. д. № 1038/ 1992 г., ВС, ІV г. о., реш. № 1506 от 9 февруари 1993 г. по гр. д. № 1364/1992 г., ВС, ІV г. о. ) the former Supreme Court has associated the existence of “unjustifiable activity” resulting from constructions in neighbouring properties with failure to observe the building regulations. However, in other cases the former Supreme Court and the Supreme Court of Cassation have held that the question whether a reconstruction amounts to “unjustifiable activity” does not automatically hinge on whether it complies with the building regulations or has been approved by the authorities. The decisive factor appears to be whether it unduly interferes with the neighbours ’ enjoyment of their properties ( реш. № 1245 от 4 юли 1994 г. по гр. д. № 2149/1992 г., ВС, ІV г. о.; реш. № 411 от 2 март 1999 г. по гр. д. № 2190/98 г., ВКС, V г. о.; реш. № 1190 от 2 юли 1999 г. по гр. д. № 2042/1998 г., ВКС, ІV г. о.; реш. № 1319 от 5 юли 1999 г. по гр. д. № 501/1998 г., ВКС, ІV г. о.; реш. № 1446 от 26 юли 1999 г. по гр. д. № 256/1999 г., ВКС, ІV г. о.; реш. № 7 от 24 февруари 2000 г. по гр. д. № 1440/1999 г., ВКС, ІV г. о.; реш. № 1803 от 11 ноември 2002 г. по гр. д. № 2124/2001 г., ВКС, ІV г. о.; реш. № 1818 от 13 ноември 2002 г. по гр. д. № 2183/2001 г., ВКС, IV г. о.; реш. № 366 от 5 април 2004 г. по гр. д. № 2866/2002 г., ВКС, ІV г.о.; реш. № 316 от 18 февруари 2005 г. по гр. д. № 2746/2003 г., ВКС, ІV г. о.; реш. № 20 от 29 януари 2009 г. по гр. д. № 6259/ 2007 г., ВКС, ІV г. о.; реш. № 1039 от 2 октомври 2008 г ., по гр. д. № 4390/2007, ВКС, г. о.; опр. № 945 от 26 август 2009 г. по гр. д. № 751/2009 г. на ВКС, І г. о. ).", "C. The Regulations for Management, Order and Supervision in Condominiums", "63. The Regulations for Management, Order and Supervision in Condominiums ( Правилник за управлението, реда и надзора в етажната собственост ), adopted in 1951, at the material time dealt with the internal organisation of condominiums. They contained detailed rules on the internal order of the buildings and the use of the common parts.", "64. Regulation 12(1) provided that the resolutions of the condominium ’ s general meeting were immediately enforceable. The chairman of the condominium ’ s management council could apply to the competent district court to obtain a writ of execution. The resolutions for evicting an owner under section 45 of the 1951 Property Act (see paragraph 56 above) were not immediately enforceable. To obtain a writ of execution, the condominium had to show that it had warned the owner under section 45(2) of the Act ( regulation 12(2)).", "D. The 1997 Ministry of Internal Affairs Act", "65. Under section 268 of the 1997 Ministry of Internal Affairs Act, the organs of the Ministry of Internal Affairs could stop the use of buildings, installations, etc., as well as stop all other activities which, among other things, posed a risk for public order.", "E. Regulations on Public Order and the Preservation of Municipal Property on the Territory of the Municipality of Sofia", "66. Regulations on Public Order and the Preservation of Municipal Property on the Territory of the Municipality of Sofia ( Наредба № 1 за обществения ред и опазването на общинските имоти на територията на Столична голяма община ), issued by the Sofia City Council in May 1993 and superseded by similar regulations in March 2009, dealt with public order on the territory of the Municipality of Sofia. Regulation 3(1) prohibited noisy social events in residential buildings. Under regulation 3(3), noisy commercial activities in residential buildings were allowed only if their inhabitants agreed in writing. Under regulation 3(4), if no effective noise protection could be secured, the use of noisy devices and machines was allowed only from 9 a.m. to 2 p.m. and from 4 p.m. to 9 p.m.", "67. Breaches of the Regulations were punishable by a fine ( regulation 24(1)). Repeat offenders were liable to an increased fine ( regulation 24(4)). If the repeated offence was connected to a profession or a trade, the penalty could also be a prohibition on engaging in such profession or trade for a period ranging from one month to two years ( ibid. ).", "68. The supervisory organs, which included the police and officials authorised by the mayor ( regulation 29(1)), had to note down every breach of the regulations ( regulation 29(2)).", "F. Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia", "69. The Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia ( Наредба за реда на провеждане на търговска дейност на територията на Столичната община ), issued by the Sofia City Council on 27 July 2001 and superseded by new regulations in January 2005, subjected commercial operations on the territory of Sofia to a licence requirement. Regulation 10(3) provided that when giving a licence the borough mayor had to fix the working hours of the operation in a way that ensured the tranquillity of others and public order. Under regulation 34(3) the borough mayors had to take all necessary steps to stop and punish breaches of the regulation. Such breaches were punishable by a fine and, in case of repetition, a ban on commercial activities for a period of six months (regulation 36(1)).", "G. Other relevant law", "70. Section 16 of the 1979 Administrative Procedure Act, as in force at the material time, provided that administrative authorities could direct that a decision be immediately enforceable, if that was necessary to protect the life or health of individuals, prevent losses for the economy, or safeguard other material State or public interests, or if there was a risk that the enforcement would subsequently be frustrated or seriously hindered.", "71. Section 1(1) of the 1988 State Responsibility for Damage Caused to Citizens Act (on 12 July 2006 its name was changed to “State and Municipalities Responsibility for Damage Act”) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage stemming from unlawful decisions may be claimed after the decisions concerned have been annulled in prior proceedings.", "THE LAW", "I. PRELIMINARY OBSERVATION", "72. The Court notes that one of the applicants in application no. 21475/04, Mr Hristo Evtimov, died in 2007, while the case was pending before the Court, and that the two remaining applicants in that application, Ms Lilia Evtimova and Ms Kalina Evtimova ( his widow and daughter ) expressed their wish to pursue the application also on his behalf (see paragraph 2 above). It has not been disputed that they are entitled to do so, and the Court sees no reason to hold otherwise (see, mutatis mutandis, Kirilova and Others v. Bulgaria, nos. 4 2908/98, 44038/98, 44816/98 and 7319/02, § 85, 9 June 2005).", "II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "73. The applicants complained that the authorities had not taken effective measures to bring the nuisances from the computer club to an end. The Milevi sisters additionally complained about the passiveness of the authorities with regard to the electronic games club and the office in the flat adjoining theirs. They relied on Article 8 of the Convention, which provides, in so far as relevant:", "“1. Everyone has the right to respect for his private ... life [and] his home ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "1. The parties ’ submissions", "74. The Government submitted that the applicants had not exhausted domestic remedies. They pointed out, firstly, that the applicants had not tried to use civil ‑ law remedies against those allegedly interfering with their rights. They could have brought claims under section 109(1) in conjunction with section 50 of the 1951 Property Act, possibly coupled with tort claims. They could also have tried to use the eviction procedure under section 45 of that Act. Whilst there was no indication that that procedure had been used in recent years, it continued to be in force. Secondly, the applicants had failed to bring claims for compensation under section 1 of the State Responsibility for Damage Act (see paragraph 71 above) in respect of the authorities ’ allegedly unlawful actions or omissions.", "75. The applicants replied that they had used the remedies which could directly provide them with adequate redress. Those that they had left unexplored were neither adequate nor effective. The eviction procedure under section 45 of the 1951 Property Act was only applicable to a flat ’ s owner, whereas in the present case the nuisances had been created by tenants. In any event, that procedure was quite burdensome when compared with the quick and effective remedies that they had used. A claim under section 109(1) of the Act would not have been effective either. Firstly, that provision was very general. Secondly, as was evident from the domestic courts ’ case ‑ law, any claim under it would have been premised on showing that the activities in a neighbouring flat were unlawful, which could be determined only in separate proceedings concerned with the legality of the works in the flat. The domestic case ‑ law also showed that that such a claim could be successful only if it touched upon the technical aspects of a reconstruction in a neighbouring property. Moreover, such a claim protected directly the integrity of a property, not the private lives or homes of those living in it. By contrast, section 38 of the 2001 Territorial Organisation Act and of regulation 10(3) of the Regulations on the Manner of Carrying On Commercial Activities on the Territory of the Municipality of Sofia were intended to safeguard precisely the interests protected under Article 8 of the Convention. By asking the authorities to apply those provisions, the applicants had had recourse to the most appropriate avenue of redress.", "76. The applicants further submitted that the claim under section 1 of the State Responsibility for Damage Act was available solely in respect of administrative decisions, whereas their problem was due to the wording of the applicable legal provisions. Moreover, in order to prosecute a claim successfully, they were required to have previously obtained the annulment of the administrative decisions causing the damage. That would have been impossible to do in their case.", "2. The Court ’ s assessment", "77. Concerning the first limb of the Government ’ s objection, the Court observes that, according to its case ‑ law, where there is a choice of remedy the exhaustion requirement must be applied to reflect the practical realities of an applicant ’ s situation, so as to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see V.C. v. Slovakia (dec.), no. 18968/07, 16 June 2009 ). Applicants who have used a remedy that is apparently effective and sufficient cannot be required to have also tried others that were available but probably no more likely to be successful (see Tătar v. Romania (dec.), no. 67021/01, § 60, 5 July 2007, and Oluić v. Croatia, no. 61260/08, § 35, 20 May 2010, with further references).", "78. In the instant case, the applicants had a choice between several different avenues of redress. They could complain about the nuisances to the police, which they repeatedly did (see paragraphs 16 and 45 above). They could complain to the municipal authorities, which they also did (see paragraphs 19, 22 and 45 above). They could request the building control authorities to check the lawfulness of the modifications made in the flats generating the nuisances, which they also repeatedly did (see paragraphs 16, 17, 19 and 22 above). They could try to evict the operators of the clubs and the office through a resolution of the general meeting of the condominium, under section 45 of the 1951 Property Act (see paragraph 56 above), but they did not. Lastly, they could bring a claim under section 109(1) of that Act (see paragraph 57 above), which they did not do either, although in 2003 they contemplated bringing civil proceedings against their neighbours (see paragraph 40 above). The salient question is whether the remedies that the applicants did not use were more likely to bring them effective redress than those to which they had recourse.", "79. Concerning eviction under section 45 of the 1951 Property Act, the Court observes that it was described by the domestic courts as a means of last resort (see paragraph 56 above ). Moreover, there are no reported examples of its being used in recent decades ( ibid.; see also, mutatis mutandis, Tătar, cited above, § 63).", "80. As to the other civil ‑ law remedy suggested by the Government, a claim under section 109(1) of the 1951 Property Act, the Court notes that the prevailing case ‑ law of the national courts under that provision shows that in such proceedings they distinguish between nuisances resulting from the mere reconstruction of a neighbouring building and those stemming from activities there, regard noise as an actionable nuisance in itself, and are likelier to focus their attention not so much on the objective legality of a reconstruction but on its impact on the neighbours. If the courts allow a claim under section 109(1), they can enjoin the perpetrator of the nuisance to remove the reconstruction and/or stop or abate any activities which unduly interfere with the owner ’ s rights (see paragraphs 57 ‑ 62 above). It thus seems, contrary to what the applicants suggest, that such a claim would not have been necessarily premised upon the setting ‑ aside, in previous proceedings, of any building permits issued to the applicants ’ neighbours, and would have been capable of addressing the gist of the applicants ’ grievance and providing them with effective redress.", "81. In its recent decision in Galev and Others the Court noted that in Bulgaria administrative proceedings concerning the lawfulness of a flat ’ s reconstruction centred on the legality of the changes to the building and – unlike a claim under section 109(1) – did not involve direct consideration of the question whether nuisances coming from such flat would unduly interfere with the neighbours ’ rights under Article 8 of the Convention (see Galev and Others v. Bulgaria (dec.), no. 18324/04, 29 September 2009 ). However, in the instant case the applicants managed to obtain from the building control authorities a decision prohibiting the use of the computer club (see paragraph 25 above). If enforced, that decision would have had the same effect as a court order or injunction made in proceedings under section 1 09 (1), namely abatement of the nuisance (see, mutatis mutandis, Oluić, cited above, § 36). The applicants fought a protracted battle in and out of the courts to obtain its enforcement (see paragraphs 27 ‑ 36 above). Their complaints to the police and to the municipal authorities also seemed capable of providing swift and effective redress in respect of the nuisances coming from the computer club, the electronic games club and the office. The applicable regulations empowered those authorities to intervene, stop the nuisances and sanction their perpetrators (see paragraphs 65 ‑ 69 above). Those procedures appear to be an effective, rapid avenue of redress, and could, if successful, have had the outcome that the applicants desired (see, mutatis mutandis, López Ostra v. Spain, 9 December 1994, § 36, Series A no. 303 ‑ C ).", "82. Therefore, in the light of the available information and in the specific circumstances of the case, it cannot be said that the remedies that the applicants left unexplored were much more likely to provide them with effective redress than those that they actually used (see, mutatis mutandis, Paudicio v. Italy (dec.), no. 77606/01, 5 July 2005 ). In these circumstances, the complaint cannot be rejected for failure to exhaust domestic remedies ( see, mutatis mutandis, López Ostra, cited above § 38; Giacomelli v. Italy (dec.), no. 59909/00, 15 March 2005; Ruano Morcuende v. Spain (dec.), no. 75287/01, 6 September 2005; and Oluić, cited above § 37 ).", "83. As to the second limb of the Government ’ s objection, the Court finds that a claim for damages against the State may sometimes be a sufficient remedy, especially where compensation is the only means of redressing the wrong suffered. In the instant case, however, compensation would not have been an alternative to the measures that the Bulgarian legal system should have afforded the applicants to enable them to obtain the abatement of the nuisances of which they were complaining (see, mutatis mutandis, Hornsby v. Greece, 19 March 1997, § 37, Reports of Judgments and Decisions 1997 ‑ II; Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999 ‑ II; and Paudicio, cited above).", "84. The Government ’ s objection must therefore be dismissed.", "85. The Court further considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. The parties ’ submissions", "86. The Government submitted that unlike earlier cases in which the Court had found, on the basis of objective evidence, that the tolerable sound levels had been exceeded or that there had been other nuisances causing the applicants health problems, in the present case the available evidence did not show how or to what extent the activity of the two clubs and the office had caused the applicants an excessive detriment. Working with a computer was normally a quiet occupation. The applicants ’ allegations of broken doors and damage to the entrance and the passageways were not supported by evidence such as photographs or police records. The same went for the allegations of alcohol consumption in the building ’ s courtyard. Even if such things had taken place, it was not clear that they had in any way been connected with the operation of the computer club. The desire of those who lived in the building that there be no commercial activities in it was understandable, because any such activity entailed visits by outsiders, and thus inevitably interfered with the peaceful enjoyment of the property and created a risk of hooligan intrusions. However, it was a matter of proof in each case whether such risks had materialised.", "87. The applicants submitted that they had sustained serious nuisances originating from the operation of the two clubs and the office. Unlike other cases examined by the Court, in the present case the operations of those outfits had been unlawful and unauthorised from the outset. The nuisances sustained by the Milevi sisters had been the most serious, owing to the location of their flat above the computer club. For years they had to endure day and night the noise generated by the computer club ’ s clientele, which could number up to three hundred people. The seriousness of the situation could be seen from the affidavits submitted by them. From August 2003 the Milevi sisters had in addition to endure the nuisances coming from the electronic games club, whose creation had entailed extensive works in the flat below theirs, with the pulling down of walls and the installation of high ‑ voltage electrical cabling and new windows. The resulting disturbances could be seen from a number of photographs submitted by the applicants and the affidavit drawn up by Mr Hristo Evtimov. While the disturbances coming from the flat converted into an office were obviously not as intense as the rest, they nonetheless aggravated the overall situation. The Evtimovi family, as a result of the location of their flat, had been disturbed only by the computer club. At first the main annoyance had been the noise generated by the club ’ s clients at night. After the club had moved to the other flat, which was closer to theirs, they had to endure the same interferences as the Milevi sisters. The fact that Ms Kalina Hristova had a young child made that all the more unbearable.", "88. The applicants further pointed out that the building control authorities had failed to enforce their own decision to stop the club ’ s operations. The police and the municipal authorities, despite being able to rely on a number of legal provisions to take action, had failed to do anything to bring the nuisance to an end. The prosecuting authorities had also reacted passively, and the courts had, by failing to examine the application for judicial review in a reasonable time, deprived the applicants of effective protection of their rights.", "2. The Court ’ s assessment", "89. Summaries of the relevant principles may be found in paragraphs 53 ‑ 56 of the Court ’ s judgment in Moreno Gómez v. Spain ( no. 4143/02, ECHR 2004 ‑ X ) and paragraphs 44 ‑ 47 of the Court ’ s judgment in Oluić (cited above).", "(a) Were the nuisances sufficient to trigger the authorities ’ positive obligations under Article 8", "90. The first question for decision is whether the nuisance reached the minimum level of severity required for it to amount to interference with the applicants ’ rights to respect for their homes and private and family lives. The assessment of that minimum is relative and depends on all the circumstances : the nuisance ’ s intensity and duration, its physical or mental effects, the general context, and whether the detriment complained of was negligible in comparison to the environmental hazards inherent to life in a modern city (see Fadeyeva v. Russia, no. 55723/00, §§ 66 ‑ 70, ECHR 2005 ‑ IV ).", "91. The mere fact that the reconstructions carried out by the applicants ’ neighbours were not lawful is not sufficient to ground the assertion that the applicants ’ rights under Article 8 have been interfered with (see Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008 ). The Court must rather examine, on the basis of all the material in the file, whether the alleged nuisances were sufficiently serious to affect adversely the applicants ’ enjoyment of the amenities of their homes and the quality of their private and family lives (see Galev and Others, cited above ).", "92. The Court and the former Commission have dealt with the question whether excessive noise can trigger the application of Article 8 in a number of cases. Two applications raising the point in connection with aircraft noise were declared admissible but later settled (see Arrondelle v. the United Kingdom, no. 7889/77, Commission decision of 15 July 1980, Decisions and Reports (DR) 19, p. 186, and Commission ’ s report of 13 May 1982, unreported, and Baggs v. the United Kingdom, no. 9310/81, Commission decision of 16 October 1985, DR 44, p. 13, and Commission ’ s report of 8 July 1987, unreported ). In another case also concerning aircraft noise the Commission found, on the facts, that the noise level amounted to an interference (see Rayner v. the United Kingdom, no. 9310/81, Commission decision of 16 July 1986, DR 47, p. 5). In a case concerning noise from a military shooting range the Commission found, again on the facts, that the level and frequency of the nuisance were not sufficient to engage Article 8 (see Vearncombe and Others v. the United Kingdom and the Federal Republic of Germany, no. 12816/87, Commission decision of 18 January 1989, DR 59, p. 186 ). In a case concerning noise from ferries, the Commission left the point open, as it found justification for the interference (see G.A. v. Sweden, no. 12671/87, Commission decision of 13 March 1989, unreported). In a case concerning noise and other nuisances from a nearby nuclear power station, the Commission was satisfied, based on findings made by the domestic courts, that Article 8 was engaged (see S. v. France, no. 13728/88, Commission decision of 17 May 1990, DR 65, p. 25 0 ). In a case concerning noise from road works, the Commission found, based on findings made in domestic proceedings, that the noise level was not higher than what was usually inherent to life in a modern city (see Trouche v. France, no. 19867/92, Commission decision of 1 September 1993, unreported ).", "93. The question first arose before the Court, albeit obliquely, in Powell and Rayner v. the United Kingdom ( 21 February 1990, §§ 40 ‑ 46, Series A no. 172). Later, in Hatton and Others v. the United Kingdom ([GC], no. 36022/97, §§ 116 ‑ 18, ECHR 2003 ‑ VIII), and Ashworth and Others v. the United Kingdom ( (dec.), no. 39561/98, 20 January 2004 ), both concerning aircraft noise, the Court was satisfied, based on official data about the noise levels, that Article 8 was engaged, even though in the former case the applicants had not submitted evidence showing the degree of discomfort suffered by each of them personally. Similarly, in Moreno Gómez ( cited above, §§ 59 and 60 ), the Court accepted that Article 8 was engaged, for two reasons. First, the authorities had designated the area in which the applicant lived as an “acoustically saturated zone”, which, under Spanish law, was an area where local residents were exposed to high noise levels causing them serious disturbance. Secondly, the fact that the maximum permitted noise levels had been exceeded had been confirmed on a number of occasions by the authorities. In Ruano Morcuende ( cited above ), concerning vibrations from an electric transformer installed in a room adjoining the applicant ’ s flat, the Court was likewise satisfied that Article 8 was engaged. By contrast, in Fägerskiöld v. Sweden ( (dec.), no. 37664/04, 26 February 2008 ), which concerned noise from a wind turbine, the Court found, on the basis of unequivocal data from tests carried out by the authorities, that the noise levels in the applicant ’ s house were not as high as to engage Article 8. It reached the same conclusion in Furlepa (cited above), which concerned noise from a car ‑ repair garage, on the basis of the applicant ’ s failure to put forward sufficient evidence. In Borysiewicz v. Poland ( no. 71146/01, §§ 52 ‑ 55, 1 July 2008), which concerned noise from a tailoring workshop, the Court likewise found that the applicant had failed to submit enough evidence to show that the level of noise in her home had exceeded the norms set by domestic law or by the relevant international standards, or had gone beyond what was inherent to life in a modern town. It came to the same conclusion in Leon and Agnieszka Kania v. Poland ( no. 12605/03, §§ 101 ‑ 03, 21 July 2009), which concerned noise from a lorry maintenance and metal ‑ cutting and grinding workshop, and in Galev and Others (cited above ), which concerned noise from a dentist ’ s surgery. More recently, in Oluić (cited above, §§ 52 ‑ 62 ), which concerned noise from a bar operating in the house where the applicant lived, the Court was satisfied, on the basis of a number of tests carried out over a period of eight years, that the level of noise there exceeded the maximum permitted under Croatian law and under the relevant international standards.", "94. In the instant case, the Court finds that it is appropriate to distinguish between the nuisances coming from the office in the flat adjacent to that of the Milevi sisters, the nuisances coming from the electronic games club, and the nuisances coming from the computer club.", "95. In the Court ’ s view, it cannot be assumed that the noise emanating from an office, whether emitted by office equipment, generated in the normal process of work, or resulting from staff and clients entering and leaving the premises, as a rule rises above the usual level of noise in a block of flats in a modern town. Moreover, any such disturbances are as a rule likely to be restricted to working hours and are unlikely to reach very high levels (see, mutatis mutandis, Galev and Others, cited above). The Milevi sisters have not put forward evidence showing that as a result of the operation of the office the level of noise in their flat has risen above acceptable levels. For those reasons, the Court finds that the alleged disturbances from the operation of the office were not sufficient to trigger the application of Article 8.", "96. Nor is the Court persuaded that the nuisances coming from the electronic games club were sufficient to engage Article 8. The fact of works being carried out in a neighbouring flat cannot be regarded, on its own, as a disturbance exceeding the normal hazards inherent to life in a modern town (see, mutatis mutandis, Trouche, cited above, as well as Kyrtatos v. Greece, no. 41666/98, § 54, ECHR 2003 ‑ VI (extracts) ). There is no indication that the works in question lasted an unreasonably long time or were noisier than is usual for such works. Moreover, the Milevi sisters have not submitted evidence showing the level of disturbance which they suffered from that club ’ s operations.", "97. The same cannot, however, be said of the computer club. The evidence produced by the applicants shows that it operated round the clock, seven days a week, for a period of approximately four years. It also shows that the club ’ s clients, who must have been quite numerous, given that it had almost fifty computers, were generating a high level of noise, both inside and outside the building, and were creating various other disturbances (see paragraph 13 above). It cannot be overlooked that those activities, which may be seen as an natural corollary of the club ’ s operations, were taking place in and around a building which had an essentially residential character (see, mutatis mutandis, Oluić, cited above § 61 in limine ). In these circumstances, even though the case file does not contain exact measurements of the noise levels inside the applicants ’ flats, the Court is satisfied that the disturbance affecting the applicants ’ homes and their private and family lives reached the minimum level of severity which required the authorities to implement measures to protect the applicants from such disturbance (see, mutatis mutandis, Moreno Gómez, § 60, and Oluić, § 62, both cited above ).", "(b) Did the authorities discharge their duty to take steps to abate the nuisances coming from the computer club", "98. The Court first observes that in cases arising from individual applications it is not its task to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicants (see, among other authorities, Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003 ‑ VIII). It should also be pointed out that, in view of the margin of appreciation enjoyed by the national authorities in that domain, it is not in the Court ’ s remit to determine what exactly should have been done to stop or reduce the disturbance. However, the Court can assess whether the authorities approached the matter with due diligence and gave consideration to all competing interests (see, mutatis mutandis, Fadeyeva, cited above, § 128). In carrying out that assessment, it will have regard to, among other things, whether the national authorities acted in conformity with domestic law (ibid., §§ 96 ‑ 98).", "99. The Court notes that despite receiving a number of complaints and establishing that the club was operating without the requisite licence, the police and the municipal authorities failed to take effective steps to ascertain the effect of its operations on the well ‑ being of those who, like the applicants, resided in the same building, or to exercise their powers (see paragraphs 66 ‑ 69 above) to check the nuisances resulting from the club ’ s round ‑ the ‑ clock operations, which appeared to be in clear breach of the regulations on noise in residential buildings ( ibid. ). On the contrary, on 26 June 2002 the municipality approved a plan for the conversion of the flat in which the club was located into commercial premises, without trying to establish whether the domestic ‑ law rules intended to reconcile the existence of commercial outfits in residential buildings with the well ‑ being of the persons living in such buildings had been complied with (see paragraphs 21, 50 and 51 above). It is true that the municipality subsequently subjected the club ’ s operating permit to the condition that its clients enter through the back door and not through the passageway used by the building ’ s residents (see paragraph 23 above). However, that condition was imposed at the end of November 2003, some two and a half years after the club had started operating, and there is no indication that the authorities took any steps to ensure that it was being complied with. According to the applicants, the condition could not be met owing to the building ’ s layout ( ibid. ), and the authorities later found that it was being completely disregarded by the club (see paragraph 37 above). Rules intended to safeguard guaranteed rights serve little purpose if they are not properly enforced (see Moreno Gómez, cited above, § 61).", "100. Other State authorities and the Sofia City Court also contributed to prolonging the situation. Following complaints by the applicants, on 2 July 2002 the building control authorities prohibited the use of the flat used as a computer club and ordered that its electricity and water supplies be cut off (see paragraph 25 above). Under the applicable law, that prohibition was immediately enforceable for the purpose of, as noted by the Supreme Administrative Court, protecting the health of those concerned (see paragraphs 32 and 53 above). However, as a result of the two decisions of the Sofia City Court to suspend its enforcement (both of which were later overturned on appeal) and of the passiveness of the authorities, the prohibition was never enforced, despite numerous requests by the applicants (see paragraphs 28 ‑ 33 above). Those developments, coupled with the inordinate protraction of the proceedings for judicial review of that prohibition ( instead of following a fast ‑ track procedure as required by domestic law, for nearly two years the Sofia City Court barely managed to hold two hearings (see paragraphs 27, 34 ‑ 36 and 53 in fine above) ), prevented the applicants from obtaining effective protection of their rights (see, mutatis mutandis, Giacomelli v. Italy, no. 59909/00, §§ 93 and 94, ECHR 2006 ‑ XII, and Oluić, cited above, §§ 63 ‑ 65).", "101. In these circumstances, the Court concludes that the respondent State failed to approach the matter with due diligence or to give proper consideration to all competing interests, and thus to discharge its positive obligation to ensure the applicants ’ right to respect for their homes and their private and family lives.", "102. There has therefore been a violation of Article 8 of the Convention.", "III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION", "103. The applicants alleged that the passiveness of the authorities had deprived them of effective remedies for the protection of their rights under Article 8. They relied on Article 13 of the Convention, which provides as follows:", "“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”", "104. The parties ’ submissions have been summarised in paragraphs 74 ‑ 76 and 86 ‑ 88 above.", "105. The Court finds that this complaint is linked to the one examined above and must therefore likewise be declared admissible. However, it observes that the applicants ’ complaint about the lack of effective remedies allowing them to protect their right to respect for their private lives and their homes overlaps with the matters examined under Article 8. The Court therefore finds that no separate issue arises under Article 13 (see, mutatis mutandis, Tysiąc v. Poland, no. 5410/03, § 135, ECHR 2007 ‑ IV ).", "IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION", "106. The applicants alleged that the length of the proceedings for judicial review of the decision of 2 July 2002 had been unreasonable. They relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:", "“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”", "107. The Government made no submissions in relation to this complaint.", "108. The applicants submitted that the decision of 2 July 2002 had been intended to protect their rights to use their flats. The outcome of the judicial review proceedings had therefore been decisive for those rights. The applicants had, moreover, actually taken part in the proceedings, as evidenced by the records of the hearings, the summonses to the parties, and the fact that the Supreme Administrative Court had on three occasions ruled on their appeals and complaints. The applicants went on to describe in detail the unfolding of the proceedings, pointing out that even though under domestic law such proceedings should follow a fast track, they had taken almost two years for only one level of jurisdiction.", "109. The Court finds that this complaint is linked to those examined above and must therefore likewise be declared admissible. However, since it took the length of the proceedings in question into account under Article 8 (see paragraph 100 above), the Court finds that it is not necessary to examine that issue separately under Article 6 § 1 (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, § 84, Series A no. 121, and Mihailova v. Bulgaria, no. 35978/02, § 107, 12 January 2006).", "V. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "110. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Pecuniary damage", "111. The Milevi sisters claimed 46,600 euros (EUR) in respect of pecuniary damage. They submitted that the unabated nuisance from which they had been suffering and the ensuing worsening of their health had forced them to move out of their flat. As a result, in March 2004 they had had to sell it urgently for EUR 61,000, which was below its fair market value. They presented an expert ’ s report which concluded that the flat ’ s fair market value at the time of the sale was 1.6 times higher than the price at which the applicants had sold it. The applicants claimed the difference, which amounted to EUR 36,600. They further pointed out that, as evidenced by the same report, since the end of 2004 the prices of immovable property in Sofia had soared, the increase being more pronounced in the centre than in the neighbourhood where they had bought another flat in April 2004. They said that if they had not been forced to sell their original flat in March 2004 with urgency, they could have sold it later for a much higher price, which had been only partly offset by the concomitant increase in the market value of their new flat. Whilst it was very difficult to calculate precisely the resulting loss of profit, EUR 10,000 seemed like a reasonable estimate.", "112. The Evtimovi family made no claim in respect of pecuniary damage.", "113. The Government submitted that the Milevi sisters had failed to prove that their decision to sell their flat had a direct causal link with the violation of the Convention. Even if their worsened health had had a certain connection with that violation, they could have chosen other methods to avoid the nuisance, such as letting their flat and renting a flat elsewhere. In any event, the amounts claimed had no objective basis.", "114. According to the Court ’ s case ‑ law, there must exist a clear causal connection between the damage claimed by an applicant and the violation found ( see, as a recent authority, Bykov v. Russia [GC], no. 4378/02, § 110, ECHR 2009 ‑ ...). In López Ostra the Court accepted that the depreciation of a property as a result of severe environmental degradation and the need to move house on account of that degradation had a sufficient causal connection with the violation of Article 8 (see López Ostra, cited above, § 65). However, unlike that case, the nuisance in the instant case was not of such a nature or intensity as to bring about a clear reduction in the market value of the applicants ’ flat (see S. v. France, p. 262, and Hatton and Others, § 127, and contrast Baggs, p. 15, all cited above). There is nothing to indicate that the factors which caused the Milevi sisters to wish to move out of the flat would necessarily diminish its value in the eyes of a prospective buyer intending to put it to non ‑ residential use. Indeed, it cannot be overlooked that the flat was purchased by a company (see paragraph 9 above). Nor is it apparent that the applicants were forced to sell the flat in such urgency as to be unable to obtain a fair market price for it. The actual price agreed between them and the buyer could be the result of a multitude of factors about which the Court is unable to speculate. The Court is therefore not satisfied that the alleged undervalue at which the Milevi sisters sold their flat and the ensuing loss of profit had a sufficient causal link with the violation of Article 8, and makes no award under this head.", "B. Non ‑ pecuniary damage", "115. The Milevi sisters claimed EUR 25,000 each in respect of non ‑ pecuniary damage. They referred to the intolerable conditions which they had endured for a number of years, chiefly as a result of the operations of the computer club. Those disturbances had had a very negative effect on their health and had eventually forced them to sell their flat, in which they had lived since 1963, and move elsewhere. They compared their situation to that of Ms López Ostra (case cited above) and said that they deserved a similar amount in compensation.", "116. The Evtimovi family claimed EUR 10,000 each in respect of non ‑ pecuniary damage. They also claimed EUR 10,000 in respect of Ms Kalina Evtimova ’ s daughter. They likewise referred to the conditions in which they had had to live for a number of years, and laid emphasis on the passive attitude of the authorities.", "117. The Government submitted that the claims were exorbitant, and that any award under this head should take into account the standard of living in Bulgaria and the diminishing incomes in the country as a result of the global economic crisis.", "118. The Court starts by observing that there are no grounds to make an award to Ms Kalina Evtimova ’ s daughter. It may of course be assumed that the nuisance affected her as much as – if not more than – the other members of the Evtimovi family. However, the term “ injured party ” in Article 41 is synonymous with the term “ victim ” in Article 34 (former Article 25) of the Convention (see De Wilde, Ooms and Versyp v. Belgium (Article 50), 10 March 1972, § 23, Series A no. 14, and Airey v. Ireland (Article 50), 6 February 1981, § 9, Series A no. 41 ). There was nothing to prevent Ms Kalina Evtimova ’ s daughter from applying to the Court through her legal representatives and claiming to be a victim of the violation in her own right. However, she did not do so (see Yaşa v. Turkey, 2 September 1998, § 124, Reports 1998 ‑ VI, and Angelova and Iliev v. Bulgaria, no. 55523/00, § 129, ECHR 2007 ‑ IX, and contrast Kaya v. Turkey, 19 February 1998, § 122, Reports 1 998 ‑ I, and Ergi v. Turkey, 28 July 1998, § 110, Reports 1998 ‑ IV ). That being said, the Court cannot overlook the fact that Ms Kalina Evtimova herself must have experienced additional distress as a result of the effects of the nuisance on her young child (see López Ostra, cited above, § 65). To that extent, the Court, in assessing the award to be made to Ms Kalina Evtimova, will take into account the suffering of her daughter.", "119. The Court considers that the violation of Article 8 caused each of the applicants non ‑ pecuniary damage which cannot, however, be precisely calculated (see, mutatis mutandis, Taşkın and Others v. Turkey, no. 46117/99, § 144, ECHR 2004 ‑ X ). Having regard to the accounts given by the applicants of the effect of the nuisance on each of them, and making its award on an equitable basis, as required under Article 41, the Court awards EUR 7 ,000 to Ms Pepa Mileva, EUR 7 ,000 to Ms Meri Mileva, EUR 6,000 to Mr Hristo Evtimov (to be paid to his heirs who continued the proceedings in his stead – see paragraphs 2 and 72 above), EUR 6,000 to Ms Lilia Evtimova, and EUR 8,000 to Ms Kalina Evtimova. To those amounts is to be added any tax that may be chargeable.", "C. Costs and expenses", "120. The Milevi sisters sought reimbursement of EUR 8,310 incurred in fees for fifty ‑ seven hours of work by their lawyer on the domestic proceedings, at EUR 50 per hour, and thirty ‑ nine hours of work by the same lawyer on the proceedings before the Court, at EUR 140 per hour. They submitted a fee agreement and a time ‑ sheet.", "121. The Evtimovi family sought reimbursement of EUR 2,190 incurred in fees for six hours of work by their lawyer on the domestic proceedings, at EUR 50 per hour, and thirteen and half hours of work by the same lawyer on the proceedings before the Court, at EUR 140 per hour. They also submitted a fee agreement and a time ‑ sheet.", "122. The Government submitted that, in as much as the applicants had not relied on Article 8 before the domestic authorities, the costs for the domestic proceedings had not been incurred for the purpose of challenging or establishing a breach of the Convention. They also argued that the claim in respect of the Strasbourg costs was unrealistic and exorbitant, especially when seen against the backdrop of the standard of living in Bulgaria and the minimal hourly wage there. There was furthermore no reason to charge a higher hourly rate for the Strasbourg proceedings, because they concerned the same issues as the domestic proceedings. The Government suggested that in assessing the quantum of the award the Court should have regard to the rules governing the amounts payable to counsel for their appearance before the national courts.", "123. According to the Court ’ s case ‑ law, costs and expenses claimed under Article 41 must have been actually and necessarily incurred and reasonable as to quantum. Costs incurred to prevent or obtain redress for a violation of the Convention through the domestic legal order are recoverable under that provision (see, among other authorities, Buck v. Germany, no. 41604/98, § 66, ECHR 2005 ‑ IV, and, more recently, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 159, 6 July 2010 ).", "124. As regards the first point made by the Government, the Court observes that the costs attributable to the domestic proceedings were incurred by the applicants in an endeavour to assert their rights to respect for their private lives and their homes, rights guaranteed by the Convention. Moreover, the domestic proceedings were a necessary pre ‑ condition for referral of the matter to the Court (see, mutatis mutandis, Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 18, Series A no. 38 ). Those costs are therefore in principle recoverable under Article 41.", "125. Concerning the Strasbourg costs, the Court observes that when considering a claim for just satisfaction it is not bound by domestic scales or standards (see, as a recent authority, Öneryıldız v. Turkey [GC], no. 48939/99, § 175, ECHR 2004 ‑ XII ). Nor can it accept the Government ’ s contention that the applicants ’ submissions in the domestic proceedings and to this Court were substantially the same (see Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 30, ECHR 2000 ‑ IX ). In view of the number of domestic procedures involved and the issues raised in the Strasbourg proceedings, the number of hours billed by the applicants ’ lawyer does not appear unrealistic. However, that lawyer represented all applicants, both at the domestic level and in the Strasbourg proceedings. Given that the two applications concerned overlapping facts and complaints, a certain reduction appears appropriate (see Kirilova and Others, cited above, § 149 in fine, and Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 269, 15 March 2007 ). Moreover, the hourly rate charged by the lawyer for the Strasbourg proceedings is roughly double the rates charged in recent cases against Bulgaria of similar or greater complexity (see Velikovi and Others, cited above, §§ 268 and 274; Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, nos. 412/03 and 35677/04, § 183, 22 January 2009; Bulves AD v. Bulgaria, no. 3991/03, § 85, 22 January 2009; Kolevi v. Bulgaria, no. 1108/02, § 221, 5 November 2009; and Mutishev and Others v. Bulgaria, no. 18967/03, § 160, 3 December 2009 ). It cannot therefore be regarded as reasonable as to quantum.", "126. Having regard to the materials in its possession and the above considerations, the Court finds it reasonable to award jointly to all applicants the sum of EUR 4 ,000, plus any tax that may be chargeable to them, to cover costs under all heads.", "D. Default interest", "127. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1950 and lives in Alsónémedi.", "6. It appears that from early 1997 the volume of cross -town traffic in Alsónémedi increased, since a toll had been introduced on the neighbouring, privately owned motorway M5. In order to avoid the rather high toll charge, many trucks chose alternative routes including the street (a section of national road no. 5201) in which the applicant's house is situated.", "7. To counter this situation, from 1998 onwards three bypass roads were built; and several measures, including a 40 km/h speed limit at night, were implemented in order to discourage traffic in the neighbourhood. Two nearby intersections were provided with traffic lights. In 2001 road signs prohibiting the access of vehicles of over 6 tons and re-orientating traffic were put up along an Alsónémedi thoroughfare, an arrangement which also affected the applicant's street. The Government submitted that compliance with these measures had been enforced by the increased presence of the police in general in Alsónémedi and in particular in the applicant's street; in the applicant's view, however, no effective enforcement was in place.", "8. In or about 1997 the applicant observed damage to the walls of his house. He obtained the opinion of a private expert, who stated that the damage was due to vibrations caused by the heavy traffic. The applicant also alleges that, because of the increased noise and pollution due to exhaust fumes, his home has become almost uninhabitable.", "9. On 23 February 1999 the applicant brought an action in compensation against the Pest County State Public Road Maintenance Company before the Buda Central District Court. He claimed that, due to increased freight traffic in his street, the walls of his house had cracked. The case was transmitted to the Budapest Regional Court for reasons of competence on 11 March 1999. On 11 November, 16 December 1999 and 30 March 2000, the court held hearings. On 6 April 2000 it dismissed the claims.", "10. On appeal, the Supreme Court, acting as a second-instance court, held a hearing on 30 January 2002, quashed the first-instance judgment and remitted the case.", "11. In the resumed proceedings, on 2 June 2002 the Regional Court appointed as expert the Department of Road Construction at Budapest Technical University. The latter presented an opinion on 20 January 2004 which was discussed at the hearing of 29 April 2004. The expert stated that the level of noise outside the applicant's house had been measured as 69.0 dB(A) on 5 May and 67.1 dB(A) on 6 May 2003, daytime on both occasions, as opposed to the applicable statutory limit of 60 dB(A). On 10 June 2004 the court held another hearing and ordered the supplementation of the opinion, which was done on 15 September 2004.", "12. On 17 February 2005 the Regional Court dismissed the applicant's claims. It relied on the opinion of the expert, documentary evidence and the testimony of the parties. It refused the applicant's motion to obtain the opinion of another expert since it was of the view that the original opinion was thorough and precise.", "13. The court noted the expert's opinion that the vibration, as measured on the scene, was not strong enough to cause damage to the applicant's house, nor could the traffic noise entail cracks in its walls although it was higher than the statutory level. The court therefore concluded that no causal link could be established between the measures adopted by the respondent authority and the damage to the house. The court observed that the respondent had spent more than one billion Hungarian forints on developing the road system in the area, constructed four roundabouts and put up several road signs and traffic lights in order to divert traffic from Alsónémedi. In sum, it had carried out every measure with a view to sparing Alsónémedi from heavy traffic and limiting the speed of cross-town traffic that could reasonably be expected in the circumstances to protect the applicant's interest. The respondent had to balance competing interests, since the barring of heavy vehicles from a public road might have been advantageous to the inhabitants of Alsónémedi but could have caused disproportionate prejudice to the other users or providers of public and private transportation.", "14. On 15 November 2005 the Budapest Court of Appeal dismissed the applicant's appeal." ]

[ "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "15. The applicant complained that the nuisance caused by the heavy traffic in his street amounted to a violation of his right to respect for his private life and home as guaranteed by Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "16. The Government contested that argument.", "A. Admissibility", "17. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "18. The applicant submitted that the noise, vibration, pollution and odour caused by the heavy traffic nearby rendered his home virtually uninhabitable and that the Hungarian authorities'measures to remedy the situation had been insufficient and/or inadequate.", "19. The Government argued that the environmental problems suffered by the applicant had arisen essentially due to a toll introduced by a private motorway company and the State had responded with various measures to protect the inhabitants of Alsónémedi from the level of environmental harm proscribed by the Court's case-law under Article 8, thus complying with its positive obligations in this field.", "20. They submitted in particular that the operator of the motorway in question had collected toll charges as of 1 January 1997. Initially, the charges had been so high that they had deterred traffic from using the motorway and given rise to increased traffic through the neighbouring villages. Upon protests from the local inhabitants, the toll charges had been slightly lowered. Frequent user and fleet discounts had been granted which, however, had not been attractive enough to reduce toll evasion and the resultant noise and environmental pollution suffered by the neighbouring villages. Following a partial governmental buyout of the motorway in 2002, a sticker system had been introduced entailing a substantial reduction of the toll charges. A State-owned company had then been commissioned to enhance safety on the impugned road sections and reduce the environmental burden on the inhabitants. The measures taken by this agency are outlined in paragraph 7 above.", "21. The Court recalls that Article 8 of the Convention protects the individual's right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area within reasonable limits. Breaches of the right to respect of the home are not confined to concrete breaches, such as unauthorised entry into a person's home, but may also include those that are diffuse, such as noise, emissions, smells or other similar forms of interference. A serious breach may result in the breach of a person's right to respect for his home if it prevents him from enjoying the amenities of his home ( cf. Moreno Gómez v. Spain, no. 4143/02, § 53, ECHR 2004 ‑ X).", "Moreover, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities'adopting measures designed to secure respect for private life and home even in the sphere of the relations of individuals between themselves (see Moreno Gómez, cited above, § 55).", "22. In the instant case, the Court notes the applicant's submission that, from 1997 onwards, the noise, vibration, pollution and odour caused by the heavy traffic nearby had made his property almost uninhabitable. It also observes that the Government did not dispute in essence that the situation had indeed been problematic after the introduction of the toll on the motorway outside Alsónémedi – although they argued that the measures implemented had alleviated the burden on the applicant to such an extent that the adverse environmental effects had been reduced and did not attain the minimum level of harm proscribed by Article 8 in this field. The Court finds noteworthy that, from 1998 onwards, the authorities constructed three bypass roads, introduced a night speed limit of 40 km/h and provided two adjacent intersections with traffic lights. In 2001 further measures were implemented, namely road signs prohibiting the access of heavy vehicles and re-orientating traffic were installed (see paragraph 7 above).", "23. The Court considers that the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention when it comes to the determination of regulatory and other measures intended to protect Article 8 rights. This consideration also holds true in situations, which do not concern direct interference by public authorities with the right to respect for the home but involve those authorities'failure to take action to put a stop to third-party breaches of the right relied on by the applicant (cf. Moreno Gómez, cited above, § 57 ). In the present case the State was called on to balance between the interests of road-users and those of the inhabitants of the surrounding areas. The Court recognises the complexity of the State's tasks in handling infrastructural issues, such as the present one, where measures requiring considerable time and resources may be necessary. It observes nevertheless that the measures which were taken by the authorities consistently proved to be insufficient, as a result of which the applicant was exposed to excessive noise disturbance over a substantial period of time. The Court finds that this situation created a disproportionate individual burden for the applicant. In that respect, the Court observes that, on the basis of the expert opinion of Budapest Technical University, the domestic courts concluded that the vibration or the noise caused by the traffic was not substantial enough to cause damage to the applicant's house, but the noise exceeded the statutory level (see paragraph 13 above). The Court has already held that noise pressure significantly above statutory levels, unresponded to by appropriate State measures, may as such amount to a violation of Article 8 of the Convention ( cf. Oluić v. Croatia, no. 61260/08, § § 48 to 66, 20 May 2010; Moreno Gómez v. Spain, cited above, §§ 57 to 63 ). In the present case, it notes that, despite the State's efforts to slow down and reorganise traffic in the neighbourhood, a situation involving substantial traffic noise in the applicant's street prevailed at least until and including May 2003 when two measuring sessions established noise values respectively 15% and 12% above the statutory ones (see paragraph 11 above) (see, a contrario, Fägerskiöld v. Sweden (dec.), no. 37664/04, ECHR 2008– ... (extracts)).", "24. In these circumstances, the Court considers that there existed a direct and serious nuisance which affected the street in which the applicant lives and prevented him from enjoying his home in the material period. It finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant's right to respect for his home and private life. Accordingly, there has been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "25. The applicant also complained that the length of the proceedings which he brought in this matter was incompatible with the “reasonable time” requirement of Article 6 § 1. The Government contested that argument.", "26. The period to be taken into consideration began on 23 February 1999 and ended on 15 November 2005. It thus lasted almost six years and nine months for two levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible.", "27. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "28. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "29. In respect of non-pecuniary damage, the applicant claimed 20,000 euros (EUR) for the violation of Article 8 of the Convention and EUR 8,000 for the violation of Article 6.", "30. The Government contested these claims.", "31. Deciding on an equitable basis, the Court awards the applicant EUR 6, 0 00 in respect of non-pecuniary damage under all heads.", "B. Costs and expenses", "32. The applicant made no costs claim.", "C. Default interest", "33. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "7. The applicant was born in 1966 and lives in Krasnodon.", "A. Impact of the operation of the M04 motorway on the applicant ’ s home, private and family life", "8. The applicant is the owner of a house on K. Street in Krasnodon, where she resides with her parents and her minor son, D. G.", "9. According to the Government, since 1983 K. Street had been a part of the Soviet trans-republican motorway running from Chisinau ( Moldova ) to Volgograd ( the Russian Federation ). In 1998 (after disintegration of the USSR ) the Ukrainian authorities undertook a motorway stocktaking project and re-classified part of the motorway routed through the applicant ’ s street as the “M04 Kyiv- Lugansk-Izvarine motorway”.", "10. According to the applicant, until the 1998 stocktaking project, the Chisinau -Volgograd motorway had never been routed through K. Street. Instead, it ran through P. Street in Krasnodon. K. Street, which is only six meters wide, is lined with private houses and gardens and is completely unsuitable for accommodating cross-town traffic. It has no drainage system, pavements or proper surfacing able to support heavy lorries and has been initially designed as an exclusively residential street. In 1998, in the course of the stocktaking project, the Department for Architecture and Urban Development of the Krasnodon City Council ’ s Executive Committee agreed, for the first time, that the M04 motorway should pass via K. Street. In support of this allegation, the applicant provided a copy of a letter sent by the abovementioned Department on 9 October 1998 addressed to the State Roads Design Institute ( Дорпроект ), in which it notified that agency of its consent to the M04 motorway being routed via a number of streets in Krasnodon, including K. Street.", "11. According to the applicant, following this change in the routing of traffic, her house eventually became practically uninhabitable. It suffered heavily from vibration and noise caused by up to several hundred lorries passing by every hour. In addition, air pollution increased substantially over the years and numerous potholes emerged in the inadequate surface of the road. As a result of driving across these potholes, the vehicles emitted additional fumes and stirred up clouds of dust. In trying to deal with the potholes, the road service department started filling them with cheap materials, such as waste from nearby coal-mines, which had a high heavy ‑ metal content.", "12. On 15 May 2002, responding to complaints from the street ’ s residents, the Lugansk Regional Sanitary Department ( Державна санітарно-епідеміологічна служба в Луганській області ) measured the level of pollution near several K. Street houses, including the applicant ’ s. During the test period of one hour, 129 vehicles were recorded as having passed by, 71 of which (55%) emitted pollutants (nitrogen dioxide, carbon monoxide, saturated hydrocarbons, lead, copper, etc.) in excess of applicable safety standards. It was further established that the content of copper and lead in dust stirred up exceeded the safety standards by 23 and 7.5 times respectively. The monitoring team also noted that the road surface was damaged.", "13. By way of evidence concerning the damage to the applicant ’ s house, she presented a certificate dated 31 May 2002 signed by a group of assessors consisting of a city council deputy, the head of the local residents ’ association and a private individual. The group attested that it had examined the house and found that it had been damaged. In particular, the basement was cracked and the walls were covered with coal dust, which had allegedly been used during ad-hoc repairs of the road aimed at filling the potholes and subsequently disturbed by passing traffic. It also noted that the road surface near the applicant ’ s house had been badly damaged, thus amplifying vibrations from passing vehicles and causing vibration of the furniture inside the applicant ’ s house and pieces of plaster to occasionally fall from its ceiling and walls.", "14. By way of evidence of health damage, the applicant presented medical certificates attesting that her father, mother and minor son were suffering from numerous diseases. The applicant ’ s father, born in 1939, was diagnosed, in particular, with chronic erosive gastroduodenitis, chronic bronchitis, pneumatic fibrosis, atherosclerosis, hypertension, cardiosclerosis and other diseases, cumulatively resulting in his being assessed in April 2001 as a “second (intermediate) degree” disabled person.", "15. The applicant ’ s mother (Mrs Grishchenko ), born in 1 946, was found to be suffering, inter alia, from ulcers, chronic bronchitis, respiratory insufficiency, ischemic heart disease, deforming osteoarthritis, osteochondrosis and other diseases.", "16. The applicant ’ s minor son D. G., born in 1994, started suffering from frequent respiratory tract diseases from 1997 onwards. In 1998 he was diagnosed as suffering from secondary immunodeficiency, non-rheumatic carditis and biliary dyskinesia. In 2000 D. G. was further diagnosed with hyperexcitability and hyperactivity disorder. During in-patient treatment of D. G. in November 2002, he was found to have excessive levels of copper and lead in his blood and urine and was diagnosed as suffering from chronic poisoning from heavy - metal salts, chronic toxic hepatitis and toxic encephalopathy.", "17. On 12 July 2003 the Krasnodon Children ’ s Hospital recommended that the applicant ’ s son be resettled. The certificate noted, in particular:", "“Regard being had [to the fact] that the child has been living in an environmentally ‑ saturated area since his birth (considerable pollution of air and soil with salts of heavy metals, sulphur dioxide, saturated and unsaturated carbohydrates), it is necessary to change his place of residence”.", "B. Administrative decisions addressing damage caused by the operation of the M04 motorway", "18. On numerous occasions Mrs Grishchenko complained on the family ’ s behalf to various authorities (including the President of Ukraine, the State Sanitary Department, the municipal authorities and the prosecutor ’ s office) about intolerable levels of nuisance and pollution from the M04 motorway. According to the case file, the first complaints were lodged by her no later than 2000. On various occasions analogous complaints were also lodged individually and collectively by other K. Street residents. It is unclear from the case file what actions, if any, were taken by the authorities in response to these complaints prior to May 2002.", "19. On 28 May 2002, following the assessment of pollution levels undertaken on 15 May 2002 ( mentioned in paragraph 12 above ), the Lugansk Regional Chief Sanitary Officer ( головний санітарний лікар Луганської області ) ordered the Krasnodon Mayor to consider stopping through traffic using K. Street and repairing K. Street ’ s road surface. In his decision, that official mentioned that K. Street was designated as a temporary transit thoroughfare and that heavy traffic had ruined the surface of the road. He further noted that the level of air pollution on K. Street was in breach of the Law of Ukraine “On the Protection of the Air” (“the Clean Air Act”) and that such pollution could have adverse effects on the residents ’ health.", "20. On an unspecified date Mrs Grishchenko complained to the Krasnodon Prosecutors ’ Office about the level of pollution and demanded the initiation of a criminal investigation into the situation.", "21. On 13 June 2002 the Krasnodon Prosecutors ’ Office rejected her demand, having found that while the fact of excessive pollution was not in dispute, there was no basis for linking this situation to any criminal wrong ‑ doing on any authority ’ s behalf. There was no appearance that the decision to use K. Street as a transit road had been in and of itself unlawful. As regards repairing the road, the Prosecutors ’ Office had ordered the Krasnodon City Council ’ s Executive Committee (hereafter “the Executive Committee”) to redress violations of environmental law. It further notified Mrs Grishchenko that according to its information, repairs were planned for June 2002.", "22. On 16 June 2002 K. Street was blocked to prevent the further passage of automobile traffic.", "23. On 2 July 2002 the Lugansk Regional Prosecutors ’ Office further informed Mrs Grishchenko that on 18 June 2002 the Executive Committee had decided to order repairs to K. Street.", "24. On 24 October 2002 the Chief of the Krasnodon Department of the Interior recommended that the municipality find funding for the repair of the surface of K. and L. Streets.", "25. On 1 July 2003 the Lugansk Regional Department of the State Highways Agency ( Укравтодор – “the Highways Agency” ) wrote to the Mayor of Krasnodon, acknowledging that the section of the M04 road in the region was not sufficiently equipped to accommodate the increased traffic and that there was an urgent need to build transit routes bypassing populated communities, including Krasnodon. However, regard being had to the lack of available funding, these works had not been carried out and the Lugansk Department had asked its central headquarters to deal with the situation. It further suggested that the Krasnodon municipality should renovate the in ‑ town part of the road using funds garnered from automobile tax retained by the city treasury.", "26. On 6 June 2006 the Municipal Housing and Municipal Maintenance Department informed the Executive Committee that repairing the surface of K. Street had been entered into the Urban Development Plan for 2006. However, no funding for the works had ever been received. It further noted that Krasnodon lacked any alternative roads meeting the standards of a transit thoroughfare and that the use of K. Street for this purpose – which it was unequipped for – had resulted in heavy deterioration of its surface.", "27. On 27 June 2006 the Lugansk Regional Chief Sanitary Officer confirmed in his correspondence that the passage of vehicles through K. Street had been impossible, the street having been blocked by concrete blocks and other barriers.", "28. On 24 November 2010 the applicant informed the Court, without providing any supporting materials, that the use of K. Street as a motorway had been recently restarted without any in-depth repairs having been carried out.", "C. Civil proceedings against the Krasnodon City Council ’ s Executive Committee", "29. In 2001 Mrs Grishchenko lodged a civil claim on the applicant ’ s behalf, seeking to oblige the Krasnodon City Council ’ s Executive Committee to resettle the family and to pay 5,000 hryvnias (UAH ) in compensation for damage caused to their house and health by the operation of the M04 motorway.", "30. In the course of the trial, the court examined written evidence presented by the applicant and questioned officials of the municipal Architecture, Housing and Road Maintenance Departments, and officers from the traffic police. The Architecture Department official stated that K. Street was seven metres wide; it had no drainage or pavements because there was no funding available for constructing these amenities. The Housing Maintenance Department official acknowledged that his department was partly responsible for K. Street ’ s maintenance, which was to be funded by the Highways Agency and from automobile taxes. As the funding had not been forthcoming, the street had not been maintained properly. He also opined that the damage to the applicant ’ s house had more likely been caused by construction flaws than by the operation of the motorway. The official from the Road Maintenance Department submitted that K. Street, being part of a motorway, was to be managed by it jointly with the Highways Agency. Finally, a traffic police officer submitted that for several preceding years there had been no complaints of traffic accidents on K. Street and that twice a year the traffic police examined the state of the road.", "31. On 18 January 2002 the Krasnodon Court rejected Mrs Grishchenko ’ s claim. The full text of its reasoning reads as follows:", "“It has been established in court that K. Street in Krasnodon hosts the M04 Kyiv ‑ Lugansk-Izvarine motorway.", "The plaintiff did not provide the court with evidence that on account of the Executive Committee ’ s fault the road is operated in breach of technical requirements existing for this category of roads. The plaintiff did not specify which particular provisions have been breached.", "In addition, the plaintiff did not provide evidence that it is the [ Executive Committee ’ s ] fault that her lawful rights have been infringed, namely, [that] her house has been destroyed, [and that] herself and her family suffer from various illnesses, resulting in mental distress.", "Based on the above, the court considers it necessary to reject the claim as ill ‑ founded ... ”", "32. Mrs Grishchenko appealed. Referring primarily to Article 50 of the Constitution of Ukraine and the Clean Air Act, she noted, in particular, that by focusing on the issue of the road ’ s maintenance, the first-instance court had deviated from the object of her claim. In fact, instead of seeking to oblige the plaintiff to repair the street, she had demanded resettlement, as in her opinion the street was completely unsuitable for hosting a motorway in the first place. The defendant had been at fault, not only for allowing through traffic, but also for failure to organise its regular supervision by traffic police, environmental and sanitary services to ensure safety, and anti-pollution measures. The claimant asserted that the witnesses had presented inaccurate data. In particular, there had been numerous traffic accidents on K. Street, and a recent police response to one of the residents ’ complaints about that issue had been included in the case file. Mrs Grishchenko further complained that the court had failed to summon officials from the environmental and sanitary services to present comprehensive information about the environmental situation around the road and so had failed to ensure her and her family ’ s right of access to environmental information.", "33. On 10 June 2002 the Lugansk Regional Court of Appeal dismissed this appeal. The full text of the court ’ s reasoning was as follows:", "“Rejecting the claim of Grimkovskaya N. N., the court lawfully concluded that the M04 Kyiv- Lugansk-Izvarine motorway has been assigned on the basis of full managerial maintenance to the [Highways Agency] ... and not to the Krasnodon City Council ’ s Executive Committee.", "The plaintiff did not provide the court with any evidence that the defendant had wrongly caused her non-pecuniary damage and did not specify the legal basis for compensation of the [alleged] non-pecuniary damage and [for] resettlement ...”", "34. On 8 July 2002 Mrs Grishchenko appealed in cassation. She submitted that in her view the Krasnodon City Council ’ s Executive Committee had been the proper defendant. In support of this argument, she provided a letter from the Highways Agency dated 6 June 2002 informing her that K. Street was not on its books and that it was to be managed by the municipality. She further alleged that the court had never examined whether the decision of the Krasnodon City Department for Architecture and Urban Development taken in October 1998 to route through traffic via K. Street had been lawful and reasonable. She considered that it had been unlawful to turn a six- metre -wide street into a motorway, especially in light of the subsequent failure of the municipality to organise proper environmental monitoring and management of the road. Mrs Grishchenko additionally mentioned that the first measurement of pollution levels had been carried out only in May 2002, following numerous complaints by the street ’ s residents.", "35. On 21 July 2003 the Supreme Court of Ukraine rejected Mrs Grishchenko ’ s request for leave to appeal in cassation.", "i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection;", "ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for states to protect the environment, in national laws, preferably at constitutional level;", "iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention;", "...”" ]

[ "II. RELEVANT DOMESTIC LAW", "A. Constitution of Ukraine of 28 June 1996", "36. Relevant provisions of the Constitution read as follows:", "Article 16", "“To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.”", "Article 50", "“Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...”", "B. Clean Air Act ( Law of Ukraine no. 2707-XII “On the Protection of the Air” ) of 16 October 1992", "37. The relevant provisions of the above law as worded at the material time read as follows:", "Article 12. Restriction, suspension or discontinuation of emissions of pollutants into the air and [ of levels of pollution] by physical and biological factors", "“ Carrying out a business or other type of activity connected to a breach of conditions and requirements concerning the emission of pollutants into the air and levels of [pollution] by physical and biological factors envisaged by permits may be restricted, suspended or discontinued according to the law. ”", "Article 13. Regulation of levels of [pollution of the] air by physical and biological factors", "“ ...", "Local bodies of executive power, bodies of local self-governance, enterprises, establishments, organisations and citizens [involved in] entrepreneurial activity shall be obliged to take necessary measures to prevent and preclude [an increase in] established levels of air [pollution] by physical and biological factors and [its effects on] human health. ”", "Article 17. Measures concerning the prevention and mitigation of air pollution [caused] by emissions from methods of transport and by [associated] physical factors and facilities", "“ In order to prevent and mitigate air pollution by methods of transport and by physical factors and facilities connected to them, there shall be:", "Developed and implemented a system of measures concerning reductions in emissions, detoxification of pollutants and mitigation of physical impacts in the course of the development, production, exploitation and repair of methods of transport and in [associated] facilities;", "A shift of methods of transport and [associated] facilities to less toxic types of fuel;", "Rational planning and development of populated communities in conformity with the distances to main roads set out by law or regulation;", "The movement of transport enterprises, cargo transit, and automobile transport [so that they take place] outside of densely populated residential areas;", "Restrictions on the entrance of automotive traffic and other methods of transport and on [associated] facilities in areas zoned for residential, resort, health, recreational and nature -reserve uses, and in places of mass recreation and tourism;", "Improvement in the state of maintenance of main roads and street surfaces;", "Implementation of automated systems of traffic regulation in the cities;", "Improvement in technologies for the transportation and storage of fuel at petrol refineries and petrol stations;", "Implementation of and improvement in monitoring activities, regulatory facilities, diagnostics facilities and comprehensive systems of control over compliance with environmental safety laws and regulations governing methods of transport and [associated] facilities;", "A prohibition on the development, production and exploitation of methods of transport and [associated] facilities or physical factors [giving rise to] a level of pollutants in exhaust fumes which exceeds [applicable] standards. ”", "Article 21. Preclusion and decrease of noise", "“ In order to preclude and decrease [excessive] levels of production and other noise and [in order to] achieve safe [levels of noise], there shall be:", "...", "Improvement in the design of methods of transport and [associated] facilities, and in the conditions for their exploitation, as well as due maintenance of train and tram tracks, roads, [and] street surfaces;", "The situation, during the planning and development of populated communities, of enterprises, transport thoroughfares, aerodromes and other objects containing sources of noise in accordance with sanitary requirements and construction guidelines established by law and [in accordance with] noise maps;", "...", "Administrative measures concerning the preclusion and decrease of ... noise, including the implementation of regulations and schedules [governing] transport and vehicle movement, and [the operation of associated] facilities, within the boundaries of populated communities.", "... ”", "C. The State Committee for Construction, Architecture and Housing Policy of Ukraine, State Construction Guidelines of Ukraine DBN B.2.3 – 4 – 2000 of 2000", "38. The relevant paragraph of the Guidelines as worded at the material time reads as follows:", "“ In the course of developing new or reconstructing existing motorways of national importance, their routes shall be channelled, as a rule, [so as to] bypass existing populated communities. ”", "III. RELEVANT INTERNATIONAL MATERIALS", "39. The Aarhus Convention (“Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”, ECE/CEP/43) was adopted on 25 June 1998 by the United Nations Economic Commission for Europe and came into force on 30 October 2001. Ukraine ratified the Convention on 6 July 1999.", "The Aarhus Convention may be broken down into the following areas:", "- Developing public access to information held by the public authorities, in particular by providing for transparent and accessible dissemination of basic information.", "- Promoting public participation in decision-making concerning issues with an environmental impact. In particular, provision is made for encouraging public participation from the beginning of the procedure for a proposed development, “when all options are open and effective public participation can take place”. Due account is to be taken of the outcome of the public participation in reaching the final decision, which must also be made public.", "- Extending conditions for access to the courts in connection with environmental legislation and access to information.", "40. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states:", "“9. The Assembly recommends that the Governments of member States:", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "41. The applicant complained that by routing the M04 motorway via her street, which had been unequipped for such a purpose, and by failing to organise the road ’ s proper environmental monitoring and management, the Krasnodon municipal authorities had breached her right to enjoyment of her home and her private and family life. She referred in this respect to Article 8 of the Convention, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "42. The Government submitted that they were confused as to the applicant ’ s identity : namely, whether Mrs Klara Grishchenko or Mrs Natalya Grimkovskaya should be considered the applicant in the present case.", "43. The Government further contended that, assuming that the application had been lodged by Natalya Grimkovskaya, it should be dismissed as incompatible ratione personae with the provisions of the Convention. Namely, they contended that Natalya Grimkovskaya could not be considered a victim of a violation of Article 8, as she had not been a party to the relevant domestic civil proceedings. In the alternative, her complaint should be rejected for non-exhaustion grounds for the same reason. Finally, it was in any event lodged outside the six-month period provided for by the Convention, because the application form signed by Natalya Grimkovskaya had been undated and had only been received by the Court on 28 June 2004, while the final domestic decision in Mrs Grishchenko ’ s civil proceedings had been taken on 21 July 2003.", "44. The Government further submitted that, assuming that Mrs Grishchenko was the proper applicant, the complaint should be rejected for non-exhaustion. She had lodged her civil claim against the Executive Committee, which had been an improper defendant. Mrs Grishchenko had never lodged a claim against the Highways Agency, which, according to the domestic courts ’ findings, had been responsible for maintenance of the M04 motorway.", "45. The applicant disagreed. She noted that the application concerned the interests of her entire family. However, she had wished to be considered the applicant, since she was the owner of the house. In addition, it had been expressly on her behalf that Mrs Grishchenko had instituted the domestic civil proceedings claiming compensation and resettlement. The applicant further alleged that she had not been obliged to lodge a claim against the Highways Agency, as in her opinion the Executive Committee had been responsible for K. Street ’ s maintenance. Moreover, it had been the Executive Committee who had allowed through traffic on K. Street in the first place. Further, it had not organised regular monitoring of this part of the road by traffic police, or by environmental and sanitary authorities, to ensure the enforcement of anti-pollution and safety measures. The substance of her complaint under Article 8 of the Convention had therefore been duly stated before the domestic courts.", "46. The Court notes that the applicant lives on K. Street and has provided considerable information concerning her personal suffering on account of the street ’ s designation as part of a motorway. Her complaint may therefore not be considered incompatible ratione personae with the provisions of the Convention. The Government ’ s objection concerning the applicant ’ s victim status must therefore be dismissed.", "47. The Court further observes that the judicial authorities, and, in particular, the Lugansk Regional Court of Appeal clearly considered Mrs Grishchenko ’ s civil claim as having been lodged on the applicant ’ s behalf (see paragraph 33 above). The Government ’ s first objection concerning non-exhaustion must therefore also be dismissed.", "48. As regards the Government ’ s argument that the complaint was lodged after the expiry of the six-month period, the Court notes that Mrs Grishchenko first informed the Court that she wanted to act on her daughter ’ s behalf in the Convention proceedings and submitted the respective power of attorney from the applicant on 22 December 2003. This date falls within the six-month period following the taking of the final decision in the civil proceedings ending on 21 July 2003. The Court considers that, in these circumstances, the fact that the initial application form (executed on 20 and posted on 21 October 2003) was signed by Mrs Grishchenko and that subsequently the applicant herself signed a new application form raising the same complaints, which was received by the Court on 28 June 2004, cannot be construed against her. The Court therefore dismisses the Government ’ s objection concerning the six-month period.", "49. Finally, as regards the Government ’ s second objection concerning non-exhaustion, namely, that a civil claim should have been lodged against the Highways Agency, in light of the materials in the case file (see paragraphs 21, 24-26 and 30 above) the Court considers that the applicant ’ s arguments concerning the Executive Committee ’ s responsibility for the maintenance of K. Street were not without some basis. It is more important, however, that the object of the applicant ’ s claim before the Court concerns, primarily, not repairs to K. Street, but rather the compatibility with the Convention of : ( i ) the municipality ’ s consent to designate that street as a part of a motorway; and (ii) its alleged omissions in putting in place a sound environmental management policy to ensure that the operation of the motorway complied with applicable law. The Government have not shown how these issues could be resolved in proceedings against the Highways Agency. This objection must therefore also be dismissed.", "50. Overall, the Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "1. Submissions by the parties", "(a) The applicant", "51. The applicant submitted that the decision taken in 1998 to designate K. Street as part of a motorway had been unlawful and arbitrary, as national transit roads should be constructed outside of populated communities. Given that as of October 1998, when the authorities had been carrying out the motorway stocktaking project, there had been no proper transit road in place, they should have routed the M04 motorway via P. Street, which had previously served as a portion of the Chisinau -Volgograd motorway. The decision to re-route traffic via a six- metre- wide residential street with private houses situated four to five metres from the road had been arbitrary.", "52. Furthermore, having taken this decision, the municipal authorities had never taken measures to ensure regular monitoring of the street by the traffic police, as well as its environmental management to curtail pollution resulting from the heavy lorry traffic. Pollution and other nuisances had remained unchecked for several years in a row, and it had only been following multiple complaints from the street ’ s residents that in May 2002 the level of pollution had been checked and the decision to suspend the traffic had been taken. Moreover, the street ’ s residents had had to engage in mass protests in order to have this decision eventually enforced. In any event, although the traffic had been stopped, no measures to repair the deteriorated road surface or clean up the soil had ever been implemented.", "53. As a result, the applicant ’ s house had been damaged and her family members had suffered irreparable damage to their health. They should have obtained compensation from the Executive Committee for their grievances. However, the domestic courts had arbitrarily dismissed her claim concerning the matter, having refused to properly consider her main arguments.", "(b) The Government", "54. The Government objected to this view.", "55. They alleged, firstly, that there had been insufficient evidence that the applicant ’ s suffering had reached the threshold necessary for bringing Article 8 of the Convention into play. The damage to the house from vibration had been confirmed by a group of assessors who had not been qualified to come to such conclusions. On the other hand, a qualified representative of the Housing Maintenance department had opined during the court hearings that the house had more likely been flawed upon its initial construction. There had likewise been no conclusive evidence concerning a correlation between the motorway ’ s operation and the health problems suffered by the members of the applicant ’ s family. The Government also contested, without providing evidence, the accuracy of the medical certificates issued by the City Hospital, alleging that they were prepared by the applicant ’ s sister. Moreover, there had been other sources of pollution in the area, such as burning spoil heaps from coal-mining activity. Overall, a considerable part of Ukraine suffers from various environmental problems and there is no indication that the environmental burden suffered by the applicant ’ s family had been any heavier than that borne by the rest of the community.", "56. The Government further contended that, even assuming that they had owed any duty vis-à-vis the applicant under Article 8 of the Convention, they had taken all reasonable actions to ensure a fair balance between her interests and those of the community. Firstly, K. Street had served as a through road since 1983. In 1998 the street ’ s status as part of the motorway had merely been confirmed during the stocktaking project. The Government should therefore not be held responsible for the decision to route the traffic via K. Street. Secondly, following the entry of the Convention into force, the authorities had been contemplating the construction of a new through road, bypassing residential streets. However, they had had no choice but to use the existing road until the necessary funding could be found, as closing it off would have caused considerable detriment to the economic well-being of the country. Contrary to the applicant ’ s argument, the use of the road had not been at odds with applicable law, because paragraph 1.9 of the State Construction Guidelines had recommended, but had not required, that major motorways be constructed outside populated communities.", "57. The Government next argued that the pollution complained of had not been emitted by the State authorities ’ operation of the road, but rather by vehicles belonging to various owners. This pollution therefore could not qualify as State interference with the applicant ’ s Article 8 rights. Assuming the State had had a positive obligation to react to this pollution, it had done so by setting up a legislative scheme establishing safe pollution levels and a system to monitor compliance with that scheme. Once the State authorities had become aware that the road was not operating as intended, they had reacted quickly by closing it off to through traffic on 16 June 2002, more than a year before the applicant had applied to the Court.", "2. The Court ’ s assessment", "58. Referring to its well-established case-law (see, among other authorities, López Ostra v. Spain, 9 December 1994, Series A no. 303 ‑ C; Dubetska and Others v. Ukraine, no. 30499/03, § § 105-108, 10 February 2011 ) the Court reiterates that, where, as in the present case, the case concerns an environmental hazard, an arguable claim under Article 8 may arise only where the hazard at issue attains a level of severity resulting in significant impairment of the applicant ’ s ability to enjoy her home, private or family life. The assessment of that minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual ’ s health or quality of life.", "59. In line with these principles, the Court must first consider whether the detriment suffered by the applicant on account of the operation of the M04 motorway starting from October 1998 was sufficiently serious to raise an issue under Article 8 of the Convention. The Court observes that the applicant ’ s complaints concern, primarily, the level of noise, damage to her house from vibration and her sufferings on account of the deterioration of her parents ’ and her minor son ’ s health resulting from air and soil pollution.", "60. The Court considers that there is insufficient evidence to prove all the applicant ’ s allegations ‘ beyond reasonable doubt ’. In particular, the noise levels and their impact on the applicant ’ s private and family life have never been measured (see a contrario Deés v. Hungary, no. 2345/06, § 23, 9 November 2010 ). The allegation that the damage to the house had been caused by vibration was disputed by the Government with reference to a competent authority ’ s opinion and has never been confirmed by an independent expert. Insofar as the applicant ’ s parents ’ health can fall within the scope of her family life under Article 8, the case file contains medical evidence that they suffer from numerous illnesses. However, based on this evidence, it is not possible to determine to what extent these illnesses have been caused or aggravated by the operation of the motorway. As regards the health of the applicant ’ s minor son, it appears that he already suffered from immunodeficiency before October 1998 and that in his doctors ’ opinion he had resided in an ‘ environmentally saturated area ’ from his birth in 1994 (see paragraph 17 above).", "61. At the same time, the Court notes that according to the official investigation of 15 May 2002 ( see paragraph 12 above ), the surface of the road near the applicant ’ s house was severely damaged and more than one hundred vehicles drove over it during one hour. It is not implausible in these circumstances that the applicant was regularly disturbed by noise and vibration, at least to some extent. Further, more than half of the examined vehicles were found to be emitting pollutants in excess of applicable safety standards. The level of air and soil pollution was assessed by the domestic environmental health authorities as necessitating the suspension of the use of the road, on pain of risk of adverse impact on the residents ’ health ( see paragraph 19 above). The polluting substances emitted by the vehicles included copper and lead, an excessive level of which was also found in the soil near the applicant ’ s house. In light of these findings, the Court considers it particularly notable that the applicant ’ s son was diagnosed in 2002 with chronic lead and copper salts poisoning. The Court notes that the Government have not provided any evidence disproving the authenticity and accuracy of this diagnosis and have not proposed any plausible alternative explanation concerning the origin of this poisoning to counter the applicant ’ s allegation that it was directly connected to the motorway ’ s operation.", "62. Regard being had to the above data, the Court considers that the cumulative effect of noise, vibration and air and soil pollution generated by the M04 motorway significantly deterred the applicant from enjoying her rights guaranteed by Article 8 of the Convention. Article 8 is therefore applicable in the present case.", "63. In view of the above, the Court will next examine, in the light of the principles developed in its jurisprudence (see, among other authorities, Dubetska, cited above, §§ 140- 145) whether the Government have provided sufficient evidence to justify a situation in which the applicant bore a heavy burden on behalf of the rest of the community.", "64. The Court firstly notes that, as submitted by the Government, on 16 June 2002, within one month of the investigation by the environmental health authorities, K. Street was closed off to through traffic. Lacking concrete data, and, in particular, texts of relevant domestic decisions (if any) in evidence of the applicant ’ s allegations that this decision was in fact enforced at an unspecified later date or that the traffic was eventually restarted, the Court will proceed from the assumption that through traffic was stopped on the date suggested by the Government (see, mutatis mutandis, Vinokurov v. Russia and Ukraine ( dec .), no. 2937/04, 16 October 2007). Consequently, it must be noted that the issues of noise, vibration, air and soil pollution connected to its functioning were redressed. It, however, remains to be examined whether the State authorities should still be liable for the adverse effects of the motorway ’ s operation between October 1998 and June 2002.", "65. In assessing this matter, the Court recognises the complexity of the State ’ s tasks in handling infrastructural issues, such as the present one, where measures requiring considerable time and resources may be necessary. Being mindful of its subsidiary role under the Convention, on many occasions the Court has emphasized that the States should enjoy a considerable margin of appreciation in the complex sphere of environmental policymaking ( see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 100, ECHR 2003 ‑ VIII ). While the authorities of the Member States are increasingly taking on responsibility for minimising or controlling pollution, Article 8 cannot be construed as requiring them to ensure that every individual enjoys housing that meets particular environmental standards (see Ward v. the United Kingdom ( dec .), no. 31888/03, 9 November 2004). In line with these considerations, the Court considers that it would be going too far to render the Government responsible for the very fact of allowing cross-town through traffic to pass through a populated street or establish the applicant ’ s general right to free, new housing at the State ’ s expense. All the more so, given that the applicant in the present case has not argued that her house has decreased in value since October 1998 or that she has otherwise been unable to sell it and relocate without the State ’ s support (see, a contrario, Fadeyeva v. Russia, no. 55723/00, § 121, ECHR 2005 ‑ IV ).", "66. While the Court finds no reason to reassess the substance of the Government ’ s decision to allow the use of K. Street as a through road, in examining the procedural aspect of relevant policymaking, the Court is not convinced that minimal safeguards to ensure a fair balance between the applicant ’ s and the community ’ s interests were put in place.", "67. It notes, firstly, that the Government have not shown that the 1998 decision to route motorway M04 via K. Street was preceded by an adequate feasibility study, assessing the probability of compliance with applicable environmental standards and enabling interested parties, including K. Street ’ s residents, to contribute their views ( see, a contrario, Hatton, cited above, § 128 ). On the contrary, the nature of this decision and the adequacy of attenuating procedures appear quite ambiguous, particularly in light of the Government ’ s disagreement with the applicant as to whether the 1998 decision re-routed the traffic from P. Street to K. Street or merely confirmed K. Street ’ s earlier status as a through road. The Court considers, however, that even if K. Street had been used by through traffic before the 1998 stocktaking project, the State authorities were responsible for ensuring minimal procedural safeguards in this project ’ s course. Neither the domestic court decisions, nor the Government ’ s observations contain evidence that these safeguards, and particularly public access to relevant environmental information and decision-taking in the period of contemplating the stocktaking project, existed.", "68. Secondly, the Court considers that no later than the time of the 1998 stocktaking project, the authorities likewise became responsible for putting in place a reasonable policy for mitigating the motorway ’ s harmful effects on the Article 8 rights of K. Street ’ s residents (see, mutatis mutandis, Fadeyeva, cited above, §§ 127-131 ). It appears that the municipal authorities did take some measures aimed at the street ’ s environmental management ( see paragraph 30 above). However, neither the assessment made by domestic courts in their judgments, nor the Government ’ s observations contain sufficient detail enabling the Court to conclude that this management was effective and meaningful before the measurement of critical pollution levels on 15 May 2002. As transpires from the available materials, this measurement session was carried out only in response to repeated complaints by K. Street ’ s residents, which, according to the case file, were initially lodged no later than in 2000.", "69. Thirdly, emphasising the importance of public participation in environmental decision-making as a procedural safeguard for ensuring rights protected by Article 8 of the Convention, the Court underlines that an essential element of this safeguard is an individual ’ s ability to challenge an official act or omission affecting her rights in this sphere before an independent authority (see Dubetska, cited above, § 143 ). It also notes that as of 30 October 2001 the Aarhus Convention, which concerns access to information, participation of the public in decision-making and access to justice in environmental matters has entered into force in respect of Ukraine (see paragraph 39 above). In the meantime, it has not been shown in the present case that the applicant was afforded a meaningful opportunity to contest the State authorities ’ policymaking regarding the M04 motorway during the period of October 1998 – June 2002 before the domestic courts.", "70. The Court notes that the applicant formally attempted to do so by lodging through Mrs Grishchenko a civil claim against the Executive Committee. As appears from the brief reasoning adduced by the Lugansk Regional Court of Appeal for dismissing her claim ( see paragraph 33 above), its analysis was mostly limited to concluding that the defendant was not at all responsible for K. Street ’ s maintenance and repair. The Court notes that a variety of documents in the case file appear to pinpoint that such responsibility did – at least to some extent – in fact exist ( see paragraphs 24 ‑ 26, 30 and 34 above ), while the court ’ s reasoning does not contain any reference to the evidence which served as a basis for its contrary conclusion.", "71. Regardless, however, of which authority was responsible for the maintenance of K. Street ’ s road surface and other amenities, the Court finds it more important that the courts ’ reasoning does not contain a direct response to the applicant ’ s main arguments, on the basis of which she had sought to establish the Executive Committee ’ s liability. In particular, while the first-instance court questioned some witnesses as to some points of the municipality ’ s environmental policy, neither its, nor the higher courts ’ judgments contain any express assessment as to why they considered that this policy adequately protected the applicant ’ s rights. Likewise, no reasoning was provided for dismissing an allegation that the defendant ’ s decision taken in October 1998 was in and of itself unlawful and arbitrary, and it is unclear from the case file whether this aspect of the applicant ’ s complaint was at all studied during the proceedings at issue. The Court considers that the applicant ’ s arguments concerning the unlawfulness and arbitrariness of the above decision and the adequacy of the municipality ’ s environmental policy concerning K. Street were of paramount importance for resolving whether or not the defendant ’ s conduct struck a fair balance between the applicant ’ s rights guaranteed by Article 8 and the interests of the community. Lacking reasoning for the dismissal of these arguments in the texts of the domestic judgments, the Court is unable to conclude that the applicant had a meaningful opportunity to adduce her viewpoints before an independent authority.", "72. Overall, the Court attaches importance to the following factors. First, the Government ’ s failure to show that the decision to designate K. Street as part of the M04 motorway was preceded by an adequate environmental feasibility study and followed by the enactment of a reasonable environmental management policy. Second, the Government did not show that the applicant had a meaningful opportunity to contribute to the related decision-making processes, including by challenging the municipal policies before an independent authority. Bearing those two factors and the Aarhus Convention (see paragraph 39) in mind, the Court cannot conclude that a fair balance was struck in the present case.", "73. There has therefore been a breach of Article 8 of the Convention.", "II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION", "74. The applicant additionally complained under Articles 6 § 1 and 13 of the Convention that the civil proceedings in her case had been unfair. In particular, she complained that the courts had not stated sufficient reasons for dismissing her claims. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention only (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 20 00 ‑ XI). This provision, insofar as relevant, reads as follows:", "“... In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”", "75. The Government contested this allegation.", "76. The Court notes that this complaint is linked to the applicant ’ s complaint under Article 8 and must therefore likewise be declared admissible.", "77. It further reiterates that, notwithstanding the difference in the nature of the interests protected by Articles 6 and 8 of the Convention, which may require separate examination of claims lodged under these provisions, in the instant case, regard being had to the Court ’ s findings under Article 8 (see paragraphs 69-71 above) concerning the lack of reasoning in the domestic court judgments, the Court considers that it is not necessary to also examine the same facts under Article 6 (see, mutatis mutandis, Hunt v. Ukraine, no. 31111/04, § 66, 7 December 2006 ).", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "78. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "79. The applicant claimed 10,000 euros (EUR) in just satisfaction for damage allegedly caused to her current house and EUR 20,000 for buying a new house. She further claimed EUR 100,000 in compensation for health damage and mental distress.", "80. The Government submitted that these claims were unsubstantiated.", "81. Regard being had to the reasons for which the Court has found a violation of Article 8 of the Convention in the present case, it considers that the applicant must have suffered non-pecuniary damage which cannot be redressed by the mere finding of the violation. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of non-pecuniary damage and dismisses the remainder of her claim as unsubstantiated.", "B. Costs and expenses", "82. The applicant also claimed EUR 500 for costs and expenses incurred before the domestic courts. She did not provide any supporting documents.", "83. The Government alleged that this claim was unsubstantiated.", "84. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, lacking any supporting documents, as well as giving no explanation as to the nature of the expenses comprising the amount claimed, the Court makes no award.", "C. Default interest", "85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "2. The first applicant was born in 1984. The second applicant was born in 1958. The third applicant was born in 1991 and the fourth applicant was born in 1959. The applicants are relatives and they all live in Smolice. They were represented by Mr Ł. Brydak, a lawyer practising in Warsaw.", "3. The Government were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.", "4. The facts of the case, as established by the domestic courts in the course of the civil proceedings described below and as submitted by the parties, may be summarised as follows.", "Background", "5. Since an unspecified date the applicant family has lived in a detached house situated in Smolice at no. 11 Cegielniana Street, several metres from national road no. 14 (“the N14 road”).", "6. The N14 road runs parallel to the applicants’ street through the middle of the neighbouring town of Stryków, which has approximately 3,500 inhabitants. Where the N14 road runs through Stryków, it is known as Warszawska Street.", "7. In the southern part of Stryków, approximately 1 km from the applicants’ house, the A2 motorway crosses the N14 road. The intersection of the two roads is known as “the Stryków II junction”.", "8. The A2 motorway forms part of the Second European Transport Corridor, linking Hanover, Berlin, Frankfurt, Poznan, Warsaw, Brest, Minsk and Moscow. It runs through all of central Poland and is one of the most important roads in the country.", "9. The Polish part of the motorway, which bears the name “Liberty Motorway” ( Autostrada Wolności ), was built in sections over several years, with construction starting in 2001. It currently comprises eleven sections totalling 475 km. Tolls are payable on some sections of the motorway, and other sections are toll-free.", "10. One of the motorway’s sections runs between Konin and Stryków and is 103 km long. It currently has three lanes which are operational. It was free to use this section of the A2 motorway from 2006 until the middle of 2011. Currently, the toll costs approximately 2.50 euros (EUR).", "11. When it was built in 2006, the section of the motorway in question ended at the Stryków II junction, and all the motorway traffic was temporarily diverted directly onto the N14 road.", "12. Stryków is under the administration of the local authorities of Łódzkie Province ( Województwo łódzkie ).", "13. The 1994 local master plan ( plan zagospodarowania przestrzennego ) for Stryków, and the later versions of that plan, feature a motorway project with a ring road around the city.", "Proceedings concerning the construction and operation of the A2 motorway section between Konin and Stryków", "14. The first phase of the two-tier procedure concerning the construction of the A2 motorway started on 25 August 1995 when the Head of the Central Planning Office ( Centralny Urząd Planowania ) issued a decision indicating where the motorway would be located.", "15. On 13 February 1996 the Minister for the Environment decided on the course of the relevant section of the motorway, between the towns of Września (near Konin) and Stryków.", "16. The second phase of the procedure, namely administrative proceedings concerning the location of the relevant section of the A2 motorway, were initiated on 18 April 1996.", "17. On 26 April 1996 the mayor of Stryków ( burmistrz miasta-gminy ) raised a formal objection ( sprzeciw ) to a plan to locate the temporary end point of the A2 motorway (the future Stryków II junction) on the territory of the Stryków Municipality ( gmina ).", "18. Among other things, the mayor suggested two alternative locations for the section’s end point, namely Łowicz, belonging to Łódzkie Province ( Województwo Łódzkie ), and Żyrardów, belonging to Masovian Province ( Województwo Mazowieckie ). The mayor argued that the traffic on national road no. 71 and regional road no. 712, both passing through Stryków, was already very heavy. Redirecting the motorway traffic through the town, without putting in place any alternative road connection, was likely to obstruct the local road traffic and create environmental risks.", "19. On 23 July 1996 the Governor of Łódzkie Province ( wojewoda ) decided that the relevant section of the A2 motorway would run through the southern part of the town of Stryków.", "20. To that end, the governor set out various technical specifications relating to the A2 motorway project.", "21. In particular, the following actions had to be undertaken during the planning phase. The so-called “zone of nuisance” ( strefa uciążliwości ) was to be determined in the light of the results of an enhanced and extensive environmental impact assessment ( nasilona i pogłębiona ocena oddziaływania na środowisko ). Extensive environmental studies were to be carried out in relation to the problematic areas. The construction project was to reflect the results of those studies. Residential areas along the motorway were to be protected from noise by means of anti-noise screens and other measures. Areas along the motorway were to be forested. At each phase of the project, the owners of properties affected by the motorway were to be protected from the burden of nuisance (noise, air and water pollution) if the latter was of an above-average degree ( ponad przeciętną miarę ).", "22. The governor instructed the investor that the relevant application for a construction permit would have to be accompanied by an assessment of the results of local noise monitoring, as well as an extended environmental impact assessment ( pogłębiona ocena oddziaływania na środowisko ).", "23. The governor considered himself precluded from examining the objection raised by the mayor of Stryków because, as he explained, in the light of the relevant provisions of the Law on Paid Motorways, a decision on the location of a motorway could not go beyond the scope of the decision issued by the Head of the Central Planning Office on 25 August 1995, which only concerned the section of the motorway within the limits of Łódzkie Province. The governor found that the development of the motorway did have to be organised section by section. Waiting for the section after Stryków to be planned before approving the location of the section up to Stryków would make the whole project unprofitable for the investor.", "24. The above-mentioned decision of 23 July 1996 did not address the question of rerouting the motorway traffic via the N14 road.", "25. It appears that in 2002 a number of environmental impact assessment reports were produced. These documents have not been submitted to the Court.", "26. In the course of a public consultation on the motorway project, one association for the protection of the environment made a series of submissions and was ultimately admitted as a party to the administrative proceedings in question. In particular, the association asked that studies be carried out to measure the impact of the motorway on the health of the population concerned. To that end, they asked that the health of residents living within 1 km of the motorway be monitored. The association also asked that individual vulnerable residents be protected from the impact of the future motorway traffic.", "27. On 12 February 2003, considering the results of an assessment of the auditory effects of the motorway on the health of the population concerned, the Governor of Łódzkie Province issued an ordinance. The governor thus declared the part of the section of the motorway which was located directly before Stryków a reduced traffic zone ( obszar ograniczonego użytkowania ).", "28. On 26 March 2003 the Governor of Łódzkie Province approved the investor’s construction project for the relevant section of the A2 motorway and issued the General Directorate of National Roads and Motorways ( Generalna Dyrekcja Dróg Krajowych i Autostrad, hereinafter “the roads and motorways authority”) with a building permit. As to the environmental association’s request to have the health of the population concerned monitored, the governor observed that no legal provisions existed to regulate such action. Overall, the governor considered that the project offered solutions ensuring the protection of the environment.", "29. The above-mentioned decision did not address the question of rerouting the motorway traffic via the N14 road.", "30. On 14 July 2003 the Chief Inspector of Construction Supervision ( Główny Inspektor Nadzoru Budowlanego ) rejected as out of time an appeal lodged by the environmental association against the decision to issue the construction permit.", "31. On 25 July 2006 the Inspector of Construction Supervision for Łódzkie Province permitted the roads and motorways authority to use that section of the motorway. That decision did not address the question of rerouting the motorway traffic via the N14 road.", "Operation of the section of the A2 motorway between Konin and StrykówTimeline of events and monitoring of the N14 road", "Timeline of events and monitoring of the N14 road", "Timeline of events and monitoring of the N14 road", "32. On 26 July 2006 the roads and motorways authority opened the new, two-lane, section of the A2 motorway running between the cities of Konin and Stryków (the Stryków II junction).", "33. The motorway was then directly connected to the N14 road leading North, to Warsaw and Łódź.", "34. Following the opening of the section of the A2 motorway in question, traffic in the centre of Stryków, especially that made up of trucks, seriously increased.", "35. An impact assessment carried out in September 2006 by the Warsaw Institute for Environmental Protection ( Instytut Ochrony Środowiska ) revealed that noise levels on the N14 road significantly exceeded the statutory norms.", "36. Protests erupted and the residents of Stryków and the surrounding area called on the authorities to urgently limit the traffic on the N14 road, especially at night.", "37. Between 2006 and 2017 the applicants did not lodge any complaints about the noise, vibrations or air pollution with the local authorities responsible for environmental protection. They also did not ask for any specific pollution or noise assessment to be carried out in respect of their property.", "38. As a result of the protests and complaints lodged by other residents of Stryków, on 10 August 2006 the roads and motorways authority presented to the city council ( Rada Miasta ) a plan for the fast-track construction of a ring road to link the A2 motorway with the N14 road outside the city limits. In the alternative, a 1.7-km extension of the A2 motorway beyond the southern city limits was proposed, in order to connect it with the nearby A1 motorway.", "39. In September 2006 noise monitoring was carried out by privately commissioned experts of the Institute for Environmental Protection ( Instytut Ochrony Środowiska ). Their report was drawn up on 15 January 2007.", "40. According to that report, the average number of vehicles passing through Stryków via the N14 road was 15,381 during the day and 2,818 at night, as measured in September 2006. The noise levels measured in Stryków at the same time significantly exceeded the national norms which at the relevant time were: 60 dB during the day and 50 dB at night (see paragraph 108 below). In particular, the noise levels in residential areas exceeded the norms by between 9.9 dB (LAeq – the equivalent continuous sound level) and 12.7 dB (LAeq ) during the day, and by between 18.5 dB (LAeq ) and 21.3 dB (LAeq ) at night.", "41. The experts observed that the main cause of the noise was truck traffic, which constituted between 40 and 47% of all the traffic in Stryków.", "They considered that such a large number of trucks was highly unusual for traffic within a city.", "42. The experts concluded that the noise should not be tolerated in the long term, even assuming that the situation was temporary. They recommended that stringent measures be taken in order to move a large portion of the traffic beyond the city limits.", "43. Also in 2006, air and water pollution monitoring was carried out by the Chief Inspectorate for Environmental Protection ( Główny Inspektorat Ochrony Środowiska ). This revealed, inter alia, that the annual average concentration of sulphur dioxide and nitrogen dioxide (pollutants which contribute to acid deposition and eutrophication respectively, which in turn can lead to changes in soil and water quality) on Warszawska Street was 8.9 μg/m 3 and 33.1 μg/m 3 (micrograms per cubic metre) respectively. On a scale of I-V, the river waters in that area were rated IV, “unsatisfactory”. The water in the Stryków well was rated II, “good quality”.", "44. In October 2006 the surface of Warszawska Street in Stryków was renovated.", "45. In December 2006 the roads and motorways authority reorganised the A2 motorway in order to alleviate the nuisance posed by the increased traffic in Stryków. In particular, alternative roads to Warsaw were indicated to motorway users by means of traffic signs.", "46. According to one of the experts appointed by the Warsaw Regional Court ( Sąd Okręgowy ), the above-described measure brought the traffic levels on the N14 road back down to those from before 2006, but did not eliminate the noise emitted by the trucks, especially at night (see also paragraph 78 below). Measurements taken by the expert in September 2008 revealed that the N14 road was still affected by heavy and fluid traffic which included a significant number of trucks. In the Government’s submission, that could be partly caused by the development of industrial zones and service areas in Stryków.", "47. The court-appointed expert further observed that on 31 August 2006 the project concerning the ad hoc traffic restrictions and reorganisation (see paragraph 45 above) had been approved (by the authority in charge of road and bridge management, Biuro Zarzadzania Drogami i Mostami ), despite its various shortcomings. In particular, contrary to the applicable law, the project had not contained certain maps, a technical description (including the specifications of the road and the traffic), a timeline for its implementation, or the name of the project designer. On 15 September 2006 the project had been registered with the Office of Motorway Construction ( Biuro Zarządzania Budową Autostrady ) so that it could be implemented, with the implementation date set for 1 October 2006. In view of the great number of custom-made traffic signs which had had to be prepared, the reorganisation of traffic had taken place in December 2006.", "48. The roads and motorways authority decided not to opt for anti-noise screens along the N14 road, because the space along Warszawska Street was insufficient and access to multiple individual plots along the street could not be blocked or visually obstructed.", "49. The operation of the motorway resulted in the creation of various logistics centres and large warehouses in the Smolice and Stryków areas. A general increase in traffic was thus recorded on the streets of these towns.", "50. According to a report drawn up on 30 November 2010 by another expert appointed by the Warsaw Regional Court, the roads and motorways authority could not have predicted what level of traffic in Stryków would result from the operation of that section of the A2 motorway. Truck traffic was generated by not only the operation of the motorway, but also the operation of other national and regional roads in the vicinity of Stryków.", "Comparative environmental impact assessment drawn up for the A2 motorway in the area of the Stryków II junction", "51. In January 2008 a post-construction environmental impact assessment report was issued in respect of the part of the A2 motorway between Dąbie and Stryków (57 km before Stryków).", "52. The following relevant information pertaining to the area of the Stryków II junction featured in that document.", "53. The measurements carried out in various directions on the motorway revealed the following traffic statistics.", "54. On 21 August 2007 the number of light vehicles per hour ranged from 282 to 475 between 6 a.m. and 10 p.m., and from 114 to 206 between 10 p.m. and 6 a.m. The number of heavy vehicles (such as trucks or buses) per hour ranged from 191 to 296 between 6 a.m. and 10 p.m., and from 162 to 234 between 10 p.m. and 6 a.m. The percentage of heavy vehicles in the traffic peaked at 47.5% between 6 a.m. and 10 p.m., and at 64.4% between 10 p.m. and 6 a.m. The total number of vehicles counted in the twenty-four hours was 12,499.", "55. On 23 August 2007 the number of light vehicles per hour ranged from 220 to 416 between 6 a.m. and 10 p.m., and from 94 to 190 from 10 p.m. to 6 a.m. The number of heavy vehicles (such as trucks or buses) per hour ranged from 195 to 302 between 6 a.m. and 10 p.m., and from 175 to 230 between 10 p.m. and 6 a.m. The percentage of heavy vehicles in the traffic peaked at 48.8% between 6 a.m. and 10 p.m., and 66.9% between 10 p.m. and 6 a.m. The total number of vehicles counted in the twenty-four hours was 11,587.", "56. Overall, the average number of vehicles in the area of the Stryków II junction was 11,244 between 6 a.m. and 10 p.m., and 3,006 between 10 p.m. and 6 a.m., with a total number of 14,250 vehicles every twenty ‑ four hours. Nearly 52% of that traffic consisted of heavy vehicles.", "57. The measurements carried out specifically in respect of the junction between the A2 motorway and the N14 road revealed the following numbers of vehicles: 14,552 light vehicles every twenty-four hours; 5,934 heavy vehicles every twenty-four hours; 12,718 light vehicles between 6 a.m. and 10 p.m.; 4,320 heavy vehicles between 6 a.m. and 10 p.m.; a total of 17,038 vehicles between 6 a.m. and 10 p.m.; 1,834 light vehicles between 10 p.m. and 6 a.m.; 1,614 heavy vehicles between 10 p.m. and 6 a.m.; and a total of 3,448 vehicles between 10 p.m. and 6 a.m.", "58. The average speed was 105 km/h for light vehicles and 75 km/h for heavy vehicles.", "59. The measurements of noise levels which were carried out mainly on sunny days in August 2007, at a distance of 25 to 800 metres from the edge of the road and at a height of 4 metres, revealed that the noise ranged from 49.3 to 61.8 dB during the day, and from 47.7 to 59.6 dB at night. The statutory noise levels were exceeded during the day at three out of eighteen measuring stations (by up to 1.8 dB) and at night at fifteen out of eighteen stations (by up to 9.6 dB). During the monitoring, it was impossible to separate the noise coming from the A2 motorway from that produced by other sources, such as local activities or local roads.", "60. Average annual levels of air pollutants for 2006 were as follows: 16 ‑ 20 µg/m 3 of nitrogen dioxide (the statutory limit of 40 µg/m 3 was not exceeded); 9-15 µg/m 3 of sulphur dioxide (the statutory limit of 20 µg/m 3 was not exceeded); 16-18 µg/m 3 of PM 10 (the statutory limit of 40 µg/m 3 was not exceeded); 1.5-2.5 µg/m 3 of benzo(a)pyrene (the statutory limit of 5 µg/m 3 was not exceeded); and 0.05 µg/m 3 of lead (the statutory limit of 0.5 µg/m 3 was not exceeded).", "61. The 2008 environmental impact assessment report also stated that thirty-four anti-noise screens, the height of which varied from 2.5 to 4.5 metres, and five two-metre-high anti-noise ramparts had been put in place along the section of the A2 motorway between Konin and Stryków.", "62. The section of the motorway in question was equipped with watertight ditches and devices which partly cleaned road sludge before it was drained away.", "63. To reduce the nitrogen dioxide pollution which was expected to be emitted by the motorway traffic, trees and bushes had been planted along the motorway. The report’s authors concluded that because that greenery had been planted only recently, it was not yet fulfilling its filtering function.", "Development of the A2 motorway’s extension between Stryków II and Stryków I junctions.", "64. As the section of the motorway between Konin and the Stryków II junction was being developed, the authorities were developing the project concerning the 1.7-km extension of the motorway through the southern outskirts of Stryków, between the Stryków II and Stryków I junctions.", "65. The environmental impact assessment for that part of the A2 motorway was completed in September 2003. Following the issuance of a number of permits, works began in late 2006. They were to be completed in the autumn of 2008. The works then slowed down because of either a lack of government funding or, in the applicants’ submission, the roads and motorways authority’s persistent failure to make use of the State and European Union funds allocated to the project.", "66. On 22 December 2008 the above-mentioned extension to the A2 motorway was opened for use.", "67. The extension proved to effectively reduce the traffic made up of heavy vehicles on the N14 road, especially in the area where the applicants’ house was located. The applicants confirmed that the traffic had dropped to an acceptable level.", "Health impact of the operation of the section of the A2 motorway", "68. A privately commissioned report drawn up by psychologists on 15 September 2008 stated that the life of people living on Warszawska Street and on nearby streets had been very badly affected by the increased traffic on the N14 road.", "69. Firstly, Warszawska Street was very difficult to cross.", "70. Secondly, vehicles emitted a great deal of noise and exhaust fumes and caused vibrations and other disturbance. That nuisance persisted practically twenty-four hours a day. As a result, the residents could not open windows, and damage was caused to their houses. The residents lived with serious stress caused by the audible noise and (even more harmful) infrasound coming from trucks and other vehicles with large engines. This was compounded by the high concentration of exhaust fumes and vibrations.", "71. The experts considered that severe and persistent noise could constitute a biological stress factor causing physiological changes in humans. Such biological stress would initially cause an alert reaction of the human body and, in the event of a strong stimulus (noise over 60 dB), could lead to death. Longer exposure to the stimulus caused insomnia, irreversible exhaustion, and also led to death. It was widely accepted among scientists that, because of the particularly strong neural pathways between the hearing apparatus and the brain, persistent audible noise caused not only hearing loss but also mental discomfort, and nervous breakdowns and disorders in internal organs and brain functions, such as cardiological ailments, strokes, breathlessness, dizziness, high blood pressure and the risk of ulcers. Exposing children to noise could cause attention deficit disorders and hyperactivity, learning difficulties, aggression, withdrawal, apathy, insomnia, bed-wetting and night-time fears. Children living in a noisy environment were also very susceptible to drops in their overall immunity, allergies, arthrosis, skin disease, ulcers, nausea, panic attacks, constipation or diarrhoea. The symptoms among adults included problems with blood circulation and digestion, back pain, asthma, allergies, hair loss, depression, tobacco and alcohol addiction, aggression, depression and infertility.", "72. Ultrasound, which mostly affected women and young people, caused, among other things, earache, hearing and speech impairments, stomach and heart pain, and breathing and hormone production disorders.", "73. Vibrations could lead to the development of a so-called “vibrations syndrome”, which seriously affected various bodily functions.", "74. The experts concluded that life for the residents of Warszawska Street in Stryków was dreadful, and they risked severe psychophysiological ailments, illnesses and perhaps even a decrease in their life expectancy. All residents complained of interrupted sleep because of unbearable noise, infrasound and vibrations. Some of them had developed autoimmune diseases linked to stress.", "Civil proceedings against the national roads and motorways authority", "75. On 1 April 2009 the applicants brought a civil action against the State Treasury and the national roads and motorways authority, seeking compensation for damage to their physical and mental health and the infringement of their right to a peaceful and undisturbed private and family life, home and feeling of security (case no. XXV C 408/09). They sought 15,000 Polish zlotys (PLN – approximately EUR 3,750) per person in compensation.", "76. On 7 April 2009 the Warsaw Regional Court joined the applicants’ case to an action which had been lodged one year earlier by a certain B.W., whose house was located in the vicinity of the applicants’ plot, along the N14 road. That claimant sought compensation in the amount of PLN 60,000 (approximately EUR 15,000). B.W also applied for the respondent to be ordered to reorganise the traffic by barring 25-tonne vehicles from entering the town of Stryków He withdrew that claim on 20 February 2009.", "77. On 22 November 2011 the Warsaw Regional Court dismissed the claimants’ action for compensation. In view of the unprecedented nature of the action, the applicants were not ordered to bear any costs of the proceedings.", "78. The regional court based its rulings on the following pieces of evidence: various reports from experts in traffic engineering and acoustics, including the report of 30 November 2010 (described in paragraphs 79-87 below) and submissions made by the claimants and by specialists employed at the relevant time by the roads and motorways authority. The court rejected the report prepared by the Chief Inspectorate for Environmental Protection based on the results of the monitoring of air pollution in the area (see paragraph 43 above). The court considered that, even though it was common knowledge that increased traffic led to increased emissions of exhaust fumes, the exact cause of the air pollution in the area in question was unknown. The court also considered it unnecessary to examine the results of the noise monitoring report commissioned by the claimants (see paragraph 39 above), or to obtain expert evidence on the effects of the noise on the applicants’ mental health.", "79. The report drawn up on 30 November 2010 by the court-appointed expert in road traffic engineering was produced to answer the question of whether the roads and motorways authority had taken adequate and sufficient measures in the way that they had organised traffic in Stryków. The report contained the following observations and conclusions, in so far as relevant.", "80. The A2 motorway and the N14 road were, at the material time, a preferred route for drivers. That section of the roads was toll-free and the technical specifications of these roads were better than those on the alternative roads, the N2 and N72.", "81. Intensified traffic on the N14 road was likely to persist until: (i) the opening of the next part of the road, between the Stryków II and Stryków I junctions (the part which was to link the A2 motorway with the A1 motorway passing from the South to the North, just east of Stryków); (ii) the putting in place of ad hoc traffic restrictions; or (iii) the charging of tolls for use of the section of the A2 motorway between Konin and Stryków.", "82. The traffic on the N14 road, after the A2 motorway had been connected to it, was estimated to have increased by 35% in comparison with 2005. Truck traffic on the N14 road had peaked in 2006 at 23% of the total traffic that year. That represented a 13% increase compared with previous years.", "83. In line with the local master plan, the expansion of buildings with a commercial function (namely warehouses) had been noted in and around Stryków. That had, in all likelihood, generated the increased traffic made up of trucks and other delivery vehicles on the N14 road.", "84. The extension to the motorway that had opened on 22 December 2008 was a temporary construction which did not meet the technical specifications of a motorway. It was also not equivalent to the ring road which had initially been planned to take the traffic out of the centre of Stryków. The court-appointed expert concluded that there was a high probability that, despite the operation of that extension, Warszawska Street had remained the main transit route for traffic diverging from the A2 motorway, including trucks. That road was the shortest connection from the South to the North, and also the only road leading to the warehouses and large commercial buildings in Stryków. Moreover, the 2008 extension had had a tendency to become congested. Overall, however, the operation of that temporary extension had contributed to the decrease in traffic on Warszawska Street after December 2008.", "85. Because of intensified traffic between 2006 and December 2008, Stryków residents had been likely to experience difficulties in crossing Warszawska Street on foot and driving onto that street from their individual plots. When traffic on that road congested, the local population had been exposed to high levels of noise and emissions from the exhaust fumes of vehicles immobilised in traffic jams. Local traffic had been greatly disturbed on such occasions, and aggression among road users had frequently been recorded.", "86. The expert’s overall conclusion was as follows.", "The intensity of the traffic which had driven down Warszawska Street in Stryków after 26 July 2006 could not have been fully predicted prior to the opening of the section of the A2 motorway from Konin.", "With the exception of the shortcomings in the 2006 project concerning ad hoc traffic restrictions (see paragraph 44 above), the roads and motorways authority had been diligent in responding to the problem of the increase in traffic. In particular, the authority had engaged in (i) regular traffic monitoring; (ii) the ad hoc reorganisation of traffic in December 2006, with the idea for that measure being presented two weeks after the section of the motorway had begun to operate; and (iii) the planning and construction of the motorway’s extension through the Stryków I junction in December 2008.", "87. The shortage of funds had made it impossible for the roads and motorways authority to construct a ring road around Stryków, as featured in the local master plan. In the light of that fact, the expert concluded that extending the motorway through the Stryków I junction offered an effective solution to the problem in the shortest possible time.", "88. The regional court considered that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone above the statutory norms. The court held, however, that the authorities had been quick to acknowledge the problem brought to their attention by the area’s residents and to implement an ad hoc measure whereby a portion of the traffic had been diverted to the capital via other roads. The authorities had also been swift to prepare and start implementing the plan for a long-term solution, namely the construction of a road extension outside of Stryków. As of December 2008 those measures had significantly reduced the traffic in the town. In view of these considerations, the court concluded that the authorities had acted in accordance with the law, namely section 20 of the Act of 21 March 1985 on public roads (see below), and thus could not be held liable for the infringement of the applicants’ personal rights. That element distinguished the case from the judgment of the Supreme Court ( Sąd Najwyższy ) of 23 February 2001 (II CKN 394/00, see below), in which it had been held that a local government’s tolerance of noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Lastly, the court observed that compensation could not be awarded under Article 417 of the Civil Code, because the applicants had not proved that the harm resulting from the increased traffic between 2006 and December 2008 had made them unfit for work.", "89. On 19 December 2012 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed an appeal by the applicants without charging them any court fees.", "90. The appellate court employed the following reasoning.", "91. The construction of the A2 motorway had pursued a legitimate general interest of society and had received media attention. Because of that, it was understandable that the motorway could not simply have been cut off before reaching Stryków, and that traffic had had to be directed through the town. The increased traffic had indeed caused nuisance to the residents of the area, but it had been the only available solution which had been technically sound. The N14 road had been in operation prior to the motorway, and “nobody had promised ... that [the motorway’s] construction [would] eliminate or reduce traffic on that road”. The fact that traffic, especially truck traffic, had increased had been as a result of matters beyond the power of the roads and motorways authority. In particular, that authority had not been responsible for drivers’ choices and could not predict which type of vehicles would use the N14 road instead of the alternative roads indicated from the city of Konin. It had also been impossible to predict the cars’ impact on air pollution, namely how many cars driving down Warszawska Street would not be equipped with a catalytic converter or would have non-functioning exhaust pipes, and what their speed would be and how often they would use their brakes. The roads and motorways authority had acted in compliance with the law, in that it had taken firstly ad hoc and then long-term measures to alleviate the nuisance caused by the traffic.", "92. The appellate judgment was served on the applicants on 24 May 2013. No cassation appeal was available to the applicants because the value of their claim was lower than the statutory threshold of PLN 50,000 (see paragraph 105 below). It appears that a cassation appeal lodged by B.W., with whom they had been joint claimants, was rejected on procedural grounds." ]

[ "RELEVANT LEGAL FRAMEWORK AND PRACTICE", "Liability in tort", "93. Article 23 of the Civil Code, which entered into force in 1964, contains a non-exhaustive list of so ‑ called “ personal rights” ( prawa osobiste ). This provision states:", "“The personal rights of an individual, in particular health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, the inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law, regardless of the protection laid down in other legal provisions.”", "94. Article 24 paragraph 1 of the Civil Code provides:", "“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of an infringement, [the person concerned] may also require the party responsible for the infringement to take the necessary steps to remove [the infringement’s] consequences ... In compliance with the principles of this Code, [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”", "95. Article 144 of the Civil Code provides as follows:", "“In the exercise of his or her rights, an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property beyond an average degree as defined by the socio-economic purpose of the immovable property and the local conditions.”", "96. Under Article 222 § 2 of the Civil Code:", "“The owner shall have the right to claim restitution of his lawful position and the cessation of infringements of the law against a person who infringes his ownership other than by depriving the owner of actual control of the property in question.”", "97. There is no limitation period for claims under Article 222 of the Civil Code if they relate to immovable property (Article 223 of the Civil Code).", "98. Under Article 415 of the Civil Code, which provides for liability in tort, anyone who through his or her fault causes damage to another is required to repair that damage.", "99. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision reads:", "“The court may award an adequate sum as pecuniary compensation for non-pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”", "100. Furthermore, Article 77 § 1 of the 1997 Polish Constitution ( Konstytucja ), which entered into force on 17 October 1997, and Article 417 of the Polish Civil Code provide for the State’s liability in tort. The latter provision reads as follows:", "“The State Treasury, or [as the case may be] a local-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission connected to the exercise of public authority.”", "101. Article 417 1 § 2 of the Civil Code reads as follows:", "“Where damage has been caused by the delivery of a final ruling or a final decision, redress for such damage may be sought after the unlawfulness [of the ruling or decision] has been established in relevant proceedings, except where otherwise provided for by law.”", "102. Article 417 2 of the Civil Code provides as follows:", "“If any damage has been caused to a person through the lawful exercise of public authority, the victim shall claim full or partial redress and compensation, provided that the circumstances, in particular the victim’s being unfit for work or his or her difficult financial situation, call for [a ruling on] an equitable basis.”", "103. Article 445 § 1 of the Civil Code, which is applicable in the event that a person suffers a physical injury or health disorder as a result of an unlawful act or omission of a State agent, reads as follows:", "“... [T]he court may award the injured person an adequate sum in pecuniary compensation for the damage suffered.”", "104. On 23 February 2001 the Supreme Court ruled in a case concerning noise nuisance stemming from traffic on a high-speed road managed by a municipality (II CKN 394/00). The court held firstly that the obligations of local government, in the context of protecting the environment, came directly from the Act of 31 January 1980 on protecting and shaping the environment ( Ustawa o ochronie i kształtowaniu środowiska ), which was repealed on 26 October 2001. The provisions of that Act, in conjunction with the relevant civil-law provisions, therefore formed a sufficient basis for claims of a civil nature. Secondly, a local government’s tolerance of noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Moreover, seeking to remove the consequences of an infringement of those rights, by constructing anti-noise screens, fell within the scope of Article 24 § 1 of the Civil Code.", "Cassation appeal in civil proceedings", "105. Under Article 398 2 § 1 of the Civil Code, a cassation appeal is not available in respect of cases which concern pecuniary rights and in which the value of a claim is less than PLN 50,000.", "Environmental regulationsConstitutional protection of the environment", "Constitutional protection of the environment", "Constitutional protection of the environment", "106. Article 5 of the Polish Constitution provides that Poland shall ensure the protection of the environment, being guided by the principle of sustainable development. Other relevant constitutional provisions read as follows:", "Article 74", "“1. Public authorities shall pursue policies ensuring the ecological security of current and future generations.", "2. Protection of the environment shall be the duty of public authorities.", "3. Everyone shall have the right to be informed of the quality of the environment and its protection.", "4. Public authorities shall support the activities of citizens to protect and improve the quality of the environment.”", "Article 68 (4)", "“Public authorities shall combat epidemic illnesses and prevent the negative health consequences of degradation of the environment.”", "Noise", "107. The duty to protect the environment from noise is set out, defined and further regulated in, inter alia, section 112, section 2.2(a), section 3.5 and section 3.26(a) of the Act of 27 April 2001 on the protection of the environment ( Prawo ochrony środowiska, hereinafter “the Protection of the Environment Act”), which has been in force since 1 January 2002, and in the Minister for the Environment’s Ordinance on acceptable levels of noise in the environment ( Rozporządzenie w sprawie dopuszczalnych poziomów hałasu w środowisku ) in its version of: 13 May 1998, 29 July 2004 (in force from 13 August 2004 until 20 July 2007) and 14 June 2007 (in force since 20 July 2007), with further amendments.", "108. The 1998 and 2004 versions of the above ordinance provided that in areas where multiple families lived, such as the one where the applicants live, the acceptable level of noise from roads was 60 dB(A) during the day and 50 dB(A) at night. The most recent version of the ordinance in question changed these parameters to 65 dB (LAeq ) and 56 dB (LAeq ) respectively.", "109. Under the Act of 21 March 1985 on public roads ( Ustawa o drogach publicznych ), which has been in force since 1 October 1985, the administration of public roads and motorways is the responsibility of the Minister for Transport and the roads and motorways authority. This Act imposes various obligations on the latter authority, including an obligation to prevent adverse transformations of the environment which may be caused by the construction or maintenance of roads (section 20(13)), and an obligation to limit or stop road traffic in the event of a direct threat to people’s security (section 20(14)). Moreover, when planning a road, the authorities are duty-bound to assess the impact of the project on road security, including, inter alia, the impact on existing road networks and on the type and amount of traffic (section 24(i)(2)).", "110. Poland is also bound by the European Parliament and the European Council’s Directive 2002/49/EC relating to the assessment and management of environmental noise of 25 June 2002 (“the Noise Directive”, transposed by Poland by means of an amendment to the Protection of the Environment Act dated 18 May 2005). The directive sets out noise indicators for reporting purposes which otherwise do not constitute legally binding EU ‑ wide values or targets as regards noise limits.", "111. On 17 May 2017 the European Commission sent a formal notice to Poland under Article 258 of the Treaty on the Functioning of the EU, urging it to adopt measures on environmental noise, namely to establish strategic noise maps and action plans as required under the EU rules to decrease noise pollution in the EU (no. 20172068). On 18 February 2021 the European Commission referred Poland to the European Court of Justice over the country’s failure to comply with its obligations under the Noise Directive. The referral was accompanied by the following observations, in so far as relevant:", "“... adopting action plans was necessary to combat noise that is detrimental to human health.", "The Polish national law does not guarantee the establishment of action plans, which are required under the Directive regardless of whether noise limit values in the area are exceeded. Action plans for 20 major railway sections and for 290 major road sections are still missing, despite the deadline for adopting such action plans having passed.", "Moreover, the national law does not require action plans to include all necessary elements that are provided for in the Directive, in particular a record of public consultations, measures to preserve quiet areas and long-term strategy. Through the public consultations over the action plans the public can verify and have their say on whether authorities take adequate measures to reduce noise levels where they may be harmful, or to prevent existing levels from becoming harmful. This is why, not only action plans need to be adopted, but the national law must require all elements to be included in those action plans...”", "The infringement proceedings are currently ongoing.", "Air pollution", "112. The obligation to ensure the highest air quality is set out and further regulated in, inter alia, section 85 of the Protection of the Environment Act and in the Minister for the Environment’s Ordinance on acceptable levels of certain substances in the air ... ( Rozporządzenie w sprawie dopuszczalnych poziomów niektórych substancji w powietrzu, alarmowych poziomów niektórych substancji w powietrzu oraz marginesów tolerancji dla dopuszczalnych poziomów niektórych substancji ) in its version of 6 June 2002 (in force from 12 July 2002 until 3 April 2008) and 3 March 2008 (in force from 3 April 2008 until 3 October 2012).", "113. The ordinance provided that at the material time, from August 2006 until December 2008, the absolute norm for the annual average concentration of sulphur dioxide in the air was 20 μg/m 3, and the norm for nitrogen dioxide was 40 μg/m 3, subject to a margin of tolerance. The margin of tolerance was fixed at 8-20% for 2006, at 6-15% for 2007, and at 4-10 % for 2008. Under the law, such levels of nitrogen dioxide were acceptable, taking into account the need to protect human health.", "114. Poland is also bound by Directive 2008/50/EC of the European Parliament and the European Council of 21 May 2008 on ambient air quality and cleaner air for Europe (which entered into force on 11 June 2008 and was transposed by Poland by means of two Acts in 2009 and 2012 and seven ordinances in 2012). This directive establishes air quality objectives, including cost-effective targets for improving human health and environmental quality up to 2020. Limit values for the protection of human health are as follows: for sulphur dioxide, 125 µg/m3 in twenty-four hours, not to be exceeded more than three times a calendar year; and for nitrogen dioxide, 40 µg/m3 in a calendar year, as of 1 January 2010 (with a 50% margin of tolerance on 19 July 1999, decreasing on 1 January 2001 and every twelve months thereafter by equal annual percentages to reach 0% by 1 January 2010; see Annex XI). Alert and information thresholds are as follows: 500 µg/m3 for sulphur dioxide, and 400 µg/m3 for nitrogen dioxide (Annex XII).", "115. The earlier Council Directive 1999/30/EC relating to limit values for, inter alia, sulphur dioxide and nitrogen dioxide in ambient air (“the First Daughter Directive”, in force from 19 July 1999 until 10 June 2010, transposed by Poland by means of, inter alia, the 2001 Act on Environmental Protection and the 2002 Ordinance on acceptable levels of certain substances in the air) set out the same daily limit values and alerts thresholds for both pollutants in question (Annexes I and II). In accordance with the directive, the daily limit value for sulphur dioxide for the protection of human health (125 μg/m3) was to be applicable as of 1 January 2005.", "116. Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (which entered into force on 27 November 2001 and which was transposed by Poland by means of a series of Acts and ordinances) sets national emission ceilings on, inter alia, annual sulphur dioxide and nitrogen oxide emissions to be attained by 2010 at the latest and to be maintained from that year (Article 4). These ceilings, per calendar year, are 1397 kilotons for sulphur dioxide and 879 kilotons for nitrogen oxide (Annex I).", "117. On 25 February 2016 the European Commission sent a formal notice to Poland under Article 258 of the Treaty on the Functioning of the EU, urging it to take action to ensure good air quality and safeguard public health in relation to breaches of air pollution limits for nitrogen dioxide under the EU legislation on ambient air quality (Directive 2008/50/EC) (no. 20162010). The infringement proceedings are currently ongoing.", "THE LAW", "JOINDER OF THE APPLICATIONS", "118. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.", "ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "119. The applicants complained under Article 8 of the Convention that by routing heavy traffic from the A2 motorway via the N14 road, the authorities had breached their right to the peaceful enjoyment of their private and family life and their home, as their house was situated very near to the road.", "120. Article 8 of the Convention reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "Admissibility", "121. The Government raised a preliminary objection, arguing that the case was inadmissible for non-exhaustion of domestic remedies, as the applicants had not lodged a cassation appeal with the Supreme Court. In their view, the fact that B.W.’s cassation appeal had not been examined on the merits did not mean that the applicants’ own cassation appeal would not have had any prospects of success.", "122. The applicants submitted that a cassation appeal had not been available in their cases, because the value of each of their claims had been below the statutory threshold.", "123. The Court observes that in the civil proceedings in question, each applicant sought compensation of PLN 15,000 (see paragraph 74 above). That amount was below the threshold of Article 398 2 of the Civil Code (see paragraph 104 above). It follows that a cassation appeal was clearly not available to any of these applicants. In these circumstances, the Government’s argument relating to the cassation appeal lodged by B.W., who sought compensation in an amount higher than the statutory limit (see paragraph 75 above), has no relevance for the present case.", "124. The Government’s preliminary objection of non-exhaustion of domestic remedies must therefore be rejected.", "125. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.", "MeritsThe parties’ submissions", "The parties’ submissions", "The parties’ submissions", "(a) The applicants", "126. The applicants complained under Article 8 of the Convention that by routing heavy traffic from the A2 motorway via the N14 road, which was not equipped for that purpose, the authorities had breached their right to the peaceful enjoyment of their private and family life and their home, as their house was situated very near to the road.", "127. The applicants did not call into question the policy of expanding the road network in Poland. They argued, however, that any such development should be balanced, in that it should not put an excessive burden on the residents concerned. The increased traffic on the N14 road, especially at night, had, for a number of years, hampered the applicants’ quiet enjoyment of their homes and disturbed their sleep. The vibrations from the road traffic had also caused cracks to appear in the walls of many Stryków buildings.", "128. The applicants argued that the infringement of their Article 8 rights had been caused, firstly, by the authorities’ negligent planning of the construction of the motorway, which had disregarded the obligation to ensure the protection of nearby residential areas.", "129. In that regard, the applicants submitted that the authorities had already faced a similar situation when they had opened another section of the A2 motorway. They also argued that the lack of adequate planning had been deliberate, with the authorities wishing to curb expenditure. That said, the initial savings as regards investment had not been justified, because the State had not been facing any financial crisis, and because the State had ultimately incurred higher costs as a result of the subsequent ex post facto studies and reorganisation of the traffic.", "130. In the applicants’ opinion, the fact that the problem had resulted from the shortcomings in the original planning of the project was proven by the authorities’ ultimate success in greatly reducing truck traffic on the N14 road.", "131. Secondly, the applicants argued that the infringement of their rights had been caused by the inadequate response to the resulting situation. The applicants essentially complained that the authorities had failed to take timely, adequate and sufficient traffic mitigation measures. In particular, they had not created good-quality alternative roads, and they had not effectively eliminated the heavy night-time traffic on the N14 road.", "(b) The Government", "132. The Government acknowledged that, in the circumstances of the case, the nuisance caused to the applicants by the operation of the motorway had reached the minimum level of seriousness and thus fell within the ambit of Article 8 of the Convention.", "133. That said, the domestic authorities had complied with their positive obligations stemming from that provision.", "134. In respect of the planning of the motorway, the Government submitted that the authorities had struck a fair balance between the competing interests of the individual applicants and the community as a whole.", "135. The operation of the A2 motorway was legal and pursued an important public interest, namely the facilitation and acceleration of domestic road transport, as well as the bringing of economic and social development to the country.", "136. Long before the opening of the A2 motorway, the N14 had been a public national road connecting major cities. Its so-called design speed limits, which in built-up areas had been 60 and 70 km, had remained the same when the motorway traffic had been redirected down it.", "137. The traffic on the N14 after the motorway had been linked to it had been largely unpredictable. The authorities had only been able to monitor the situation and react to it ex post facto, which was what they had done.", "138. The nuisance which the applicants had had to endure had only been temporary, lasting only two and a half years. In addition, the levels of noise disturbance had been reduced six months into the operation of the motorway, when the road traffic to Warsaw had been reorganised. As a result of those measures, the inconvenience caused by the traffic had been alleviated by December 2008. The authorities had thus reacted promptly and adequately to the situation in Stryków, of which they had become aware not only through the complaints of the population concerned, but also through their own monitoring. The authorities’ reaction to the traffic problem had been positively assessed by the expert appointed by the court in the course of the applicants’ civil proceedings.", "139. In respect of the response to the traffic nuisance, the Government argued that the local authorities had taken all necessary measures aimed at eliminating the inconvenience caused by heavy traffic in Stryków.", "140. As early as August 2006, the authorities had come up with a plan to connect the A2 and A1 motorways outside of Stryków. The connecting road (the 1.7-km extension) had become operational on 22 December 2008 and the traffic made up of heavy vehicles had dropped significantly.", "141. Also in August 2006, the roads and motorways authority had drawn up a plan aimed at encouraging motorway users to make a detour around Stryków by taking alternative roads to Warsaw. That measure had been put in place in stages and had become fully operational in December 2006. The measure had reduced traffic levels through Stryków almost to those which had existed before the opening of the A2 motorway.", "142. In October 2006 the surface of part of the N14 (namely Warszawska Street) in Stryków had been renovated.", "143. The Government also submitted that the residents in the area concerned, who had been regularly informed of the mitigation measures in question, had been free to lodge complaints and applications in respect of the operation of the motorway or the initial investment. The applicants had not made use of that opportunity.", "144. The Government also commented that the increase in traffic in Stryków might well have been caused by factors other than the A2 motorway. In particular, the Stryków Municipality, which was conveniently situated in Central Poland, had been developing rapidly. A number of warehouses and logistics centres had been erected in the area of Stryków and nearby Smolice. In 2017 Stryków had been ranked as the third-best developing district in a local sustainable development programme. In that regard, the Government relied on the observations made by the expert who had been appointed by the court in the course of the applicants’ civil proceedings.", "145. The Government noted that all the mitigation measures taken by the authorities had been assessed as adequate, reasonable and prompt. The applicants had not shown that the authorities had at some point refused to put in place any particular measures which might have been suggested by the population concerned.", "146. The Government observed that the applicants had not documented the consequences of the impugned nuisance by medical certificates or independent reports. The psychological opinion submitted to the Court had been commissioned by the applicants, and as such was not impartial and credible.", "147. Lastly, the Government submitted that the decision-making process had complied with the Convention requirements. In particular, the applicants had received a fair and fully adversarial examination of their civil case.", "The Court’s assessment", "(a) General principles", "148. The Court reiterates that Article 8 of the Convention protects the individual’s right to respect for his private and family life, his home and his correspondence. A home will usually be a place, a physically defined area, where private and family life goes on. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person’s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII).", "149. The Court further reiterates that although there is no explicit right in the Convention to a clean and quiet environment, where an individual is directly and seriously affected by severe environmental harm such as noise or other pollution, an issue may arise under Article 8 of the Convention (see Hatton and Others, cited above, § 96; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C; Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 18, § 40; and Furlepa v. Poland (dec.), no. 62101/00, 18 March 2008).", "150. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, this may involve those authorities adopting measures designed to secure respect for private life even in the sphere of relations between individuals (see, among other authorities, Stubbings and Others v. the United Kingdom, 22 October 1996, § 62, Reports of Judgments and Decisions 1996-IV, and Surugiu v. Romania, no. 48995/99, § 59, 20 April 2004). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8, or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance, the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others, cited above, § 98).", "151. Where noise disturbances or other nuisances go beyond the ordinary difficulties of living with neighbours, they may affect the peaceful enjoyment of one’s home, whether they be caused by private individuals, business activities or public agencies (see Apanasewicz v. Poland, no. 6854/07, § 98, 3 May 2011; Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 97, 25 November 2010; and Udovičić v. Croatia, no. 27310/09, § 148-149, 159, 24 April 2014).", "152. Lastly, the Court reiterates that the Convention has a fundamentally subsidiary role and the national authorities are in principle better placed than an international court to evaluate local needs and conditions (see Hatton and Others, cited above, § 97). While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the justification given by the State is relevant and sufficient remains subject to review by the Court (see Fadeyeva, cited above, § 102, with further references).", "(b) Application of the above principles to the present case", "153. The Court notes the finding of the domestic courts that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone beyond the statutory norms (see paragraph 88). In the light of the circumstances of the case, the adverse effects of the pollution (the noise, vibrations and exhaust fumes) emitted by the heavy traffic on Warszawska Street which affected the applicants’ home have attained the necessary minimum level to bring the applicants’ grievances within the scope of Article 8 of the Convention, taking into account their intensity, duration, physical and mental effects (see Fadeyeva, cited above, § 69).", "154. The Court observes that although the applicants complained that the heavy road traffic which had followed the opening of the Konin ‑ Stryków section of the A2 motorway had caused a nuisance, they did not argue against the national policy of road development or the local policy of commercial development of the area (see paragraphs 163 and 178 above). Incidentally, the implementation of these policies, as transposed into the local master plan, was to be accompanied by the construction of a ring road around Stryków (see paragraph 12 above).", "155. The applicants complained instead that the problem in question could have been avoided if the authorities had been diligent in planning that section of the motorway (see paragraph 164 above). Moreover, the consequent nuisance could have been minimised if the authorities had employed timely, adequate and sufficient mitigation and adaptation measures (see paragraph 165 above).", "156. As to the first part of the complaint, the Court rejects the applicants’ argument that there was a pattern of bad planning as regards the sections of the A2 motorway, as there is no evidence to support that allegation.", "157. The Court nevertheless observes that the administrative authorities, which were in charge of choosing the location and the technical specifications of the motorway, did not examine the objection about the location of the motorway’s temporary end point which had been lodged in 1996 by the mayor of Stryków (see paragraphs 16 and 22 above). The mayor had formulated a clear and detailed prediction as to the risk that ending the motorway at the point later known as the Stryków II junction without any alternative road connection would cause traffic on Warszawska Street which was too heavy and too burdensome (see paragraph 17 above).", "158. The Court also takes note of the fact that all the environmental impact assessment reports and administrative decisions which were produced in the course of the impugned administrative proceedings, and which are in the Court’s possession, were only concerned with the motorway per se, and were completely silent as to the traffic rerouting via the N14 road (see paragraphs 23, 26, 28 and 30 above).", "159. Another important element in this context is that the authorities opted for that section of the motorway to be toll-free (see paragraph 9 above), even though that was clearly going to prompt the greater circulation of traffic on that road and on the N14, which was shorter and technically better than any alternative national or regional road in the vicinity (see paragraphs 79 and 80 above).", "160. Lastly, the Court accepts that Stryków residents were affected by not only the transit traffic, but also the movement of vehicles serving various warehouses and logistics centres (see paragraphs 82, 83 and 178 above). However, no data are available to distinguish between these two types of traffic. The Court thus considers it reasonable to assume that the transit traffic constituted a significantly larger portion of the traffic in question, especially the traffic which circulated at night, that is, outside of the opening hours of the commercial establishments which developed in the Stryków area.", "161. In the light of all these considerations, the Court cannot agree with the Government that the traffic on Warszawska Street was unpredictable (see paragraph 172 above). The Court thus concludes that the authorities, who had been alerted to the potential problem in 1996, knowingly ignored it and continued developing the motorway project with total disregard for the well-being of Stryków residents.", "162. The Court stresses that, for the purpose of this case, the peaceful enjoyment of Stryków residents’ homes was threatened and ultimately affected not by the development of the motorway as such, but rather the project rerouting the motorway’s traffic through the middle of their town. In that regard, the general interest in having the motorway developed or constructed in sections (see paragraphs 22 and 170 above) must be distinguished from the general interest in having that particular section of the motorway end at the Stryków II junction, with the only option being to divert the motorway’s uncontrolled traffic down the unadapted Warszawska Street.", "163. The Court accepts that minimising investment expenses is a valid general interest for any State budget. It also takes note of the information indicating that the ring road around Stryków could not be constructed owing to the shortage of funds (see paragraph 86 above). However, the Court has serious doubts as to whether this is a sufficient counterbalancing factor.", "164. The Court will now move on to the second part of the applicants’ complaint and examine whether the authorities reacted promptly and adequately to the problem of heavy traffic which started affecting Stryków residents after the opening of the section of the motorway on 26 July 2006.", "165. The authorities, who, on the one hand, carried out their own monitoring, and other the other hand, were alerted to the problem by the population concerned (see paragraphs 34, 35 and 38 above), did not adopt a passive attitude.", "166. The very first plan to mitigate the situation was presented in August 2006. The plan featured two options: the ring road, and the 1.7-km extension to what later became known as the Stryków I junction (see paragraph 37 above).", "167. The implementation of that plan, however, was marked by serious complications and delays. As already explained, the ring road option was abandoned (see paragraph 200 above). The second-best solution, that is, the opening of an extension to the motorway up to the new junction, took place only two and a half years later, on 22 December 2008 (see para 65 above).", "168. It appears that the delay in question was not attributable to the administrative proceedings (the environmental impact assessment having been delivered in 2003, and the permits having been granted in 2006), but rather the works (see paragraph 64 above).", "169. Extending the motorway to the Stryków I junction offered a direct connection to the A1 motorway and effectively reduced the traffic on the N14 road to an acceptable level (see paragraph 66, above)", "170. While awaiting the above-described long-term solution, the authorities made serious, albeit hasty, attempts to reorganise the traffic by installing custom-made signs indicating that drivers should make possible detours via nearby national and regional roads (see paragraphs 44 and 46 above). To judge the effects of that measure, the Court can only rely on the expert report of 30 November 2010, which appears to contradict itself, as well as on the parties’ submissions. It is thus the Court’s understanding that the measure which was implemented in December 2006, even though it had some positive effect, did not eliminate the heavy and continuous traffic from a significant number of trucks (see paragraphs 45, 84 and 165 above).", "171. In October 2006 the authorities also took the adaptation measure of renovating the surface of Warszawska Street (see paragraph 43 above). That apparently did not bring about any positive change (see paragraphs 44, 59 and 70 above). It appears that no other adaptation measures (like anti-noise screens) could be taken in Stryków.", "172. The Court observes that the authorities faced a difficult task of mitigating the problem of very heavy traffic resulting from the rerouting of the A2 motorway down Warszawska Street. They also had a very limited choice of possible adaptation measures. The Court therefore accepts that the authorities made considerable efforts to respond to the problem. This, however, does not change the fact that these efforts remained largely inconsequential, because the combination of the A2 motorway and the N14 road was, for many reasons, the preferred route for drivers. As a result, the State put vehicle users in a privileged position compared with the residents affected by the traffic.", "173. Even though the civil proceedings through which the applicants tried to seek ex post facto compensation for the nuisance suffered cannot be said to have been marked by unfairness, all the foregoing considerations are sufficient to enable the Court to conclude that a fair balance was not struck in the present case.", "174. In sum, the rerouting of heavy traffic via the N14 road, a road which was unequipped for that purpose and very near to the applicants’ homes, and the lack of a timely and adequate response by the domestic authorities to the problem affecting the inhabitants of Warszawska Street, enables the Court to conclude that the applicants’ right to the peaceful enjoyment of their homes was breached in a way which affected their rights protected by Article 8.", "175. There has accordingly been a violation of Article 8 of the Convention.", "APPLICATION OF ARTICLE 41 OF THE CONVENTION", "176. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "Damage", "177. Each applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.", "178. The Government considered that amount excessive.", "179. Regard being had to the reasons why the Court has found a violation of Article 8 of the Convention in the present case, it considers that the applicants must have suffered non-pecuniary damage which cannot be redressed by the mere finding of a violation. Ruling on an equitable basis, it awards each applicant EUR 10,000 in respect of non-pecuniary damage and dismisses the remainder of their claim.", "Costs and expenses", "180. The applicants also claimed EUR 5,000 for the costs and expenses incurred before the Court. No invoice to that effect was provided.", "181. The Government argued that the applicants had not complied with the conditions required by the Court’s case-law.", "182. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the lack of any documents proving that the applicants incurred expenses, the Court considers it reasonable to award the sum of EUR 750 for the proceedings before the Court, plus any tax that may be chargeable.", "Default interest", "183. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1947 and lives in Pabianice. She owns a semi ‑ detached house located in a residential area. A tailoring workshop employing about 20 people was located in the other half of the building.", "6. On 1 4 September 1993 the applicant made an application to the City Council for a ban on the operation of the workshop or at least for measures to be taken to reduce the level of noise it generated.", "7. On 11 June 199 4 the Director of the Pabianice District Office, to which the application of 1 4 September 1993 must have been transferred, issued a decision in which it found that the workshop was operating without the required permission. He obliged the owner of the workshop to take steps to remedy the situation, inter alia by obtaining an environmental impact assessment of the workshop and by carrying out adaptation works.", "8. On 30 January 1995 the Governor of Łódź approved a “ [ t ] echnical project on protection of the environment against noise”, and obliged the owner to comply with the project and to submit an evaluation of the noise level.", "9. On 7 February 1995 the Governor of Łódź approved the location of the workshop on condition that the owner complied with the requirements set out in the decision of 30 January 1995.", "10. On 15 March 1995 the Director of the Construction Supervision Department of the Town Office gave instructions as to the way in which the works to adapt the workshop should be conducted. The applicant appealed.", "11. On 4 April 1995 the applicant lodged an appeal with the Governor of Łódź in which she complained that she had not been allowed to participate in the proceedings. She submitted that she should have been treated as a party to them and that she had not received an answer to her application of 14 September 1993.", "12. On 11 May 1995 the applicant made an application to the Minister of Environment for the proceedings – which must have been discontinued on an unspecified earlier date – to be reopened in order to enable her to participate as a party to the proceedings in order to have her arguments taken into consideration.", "13. On 17 May 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995 until the request for reopening of 11 May 1995 had been considered. The workshop ’ s owner appealed.", "14. On 7 August 1995 the General Inspector of Construction Supervision quashed the decision of 17 May 1995.", "15. On 20 October 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995. The workshop ’ s owner appealed.", "16. On 15 December 1995 the General Inspector of Construction Supervision upheld the decision of 20 October 1995. The applicant appealed.", "17. On 25 February 1997 the applicant made an application to the Governor of Łódź requesting, inter alia, that the decisions of 7 August 1995 and 15 December 1995 be quashed and that the operation of the workshop be stayed until a decision was made on the merits of her request of 1993.", "18. On 1 4 November 1997 the Minister of Environment quashed the decisions of 7 August 1995 and 30 January 1995. In the written grounds he stated that the noise pollution inside the applicant ’ s home was not a matter of environmental protection, so that there was no legal basis for the proceedings to be instituted. The applicant appealed to the Supreme Administrative Court.", "19. In a letter of 12 January 1998 to the Director of the Pabianice District Office the applicant requested that the appeal proceedings against the decision of 15 March 1995 be stayed until the appeal against the decision of 1 4 November 1997 lodged with the Supreme Administrative Court had been decided. On 30 January 1998 the Governor of Łódź, to whom this request must have been transmitted, stayed the proceedings as requested. The applicant ’ s neighbour appealed.", "20. On 18 March 1998 the General Inspector of Construction Supervision quashed the decision of 30 January 1998 and remitted the case for reconsideration.", "21. On 26 August 1998 the Governor of the Town of Łódź upheld the decision of 15 March 1995 and set a new time-limit for the workshop ’ s owner to comply with the imposed obligations.", "22. On 25 November 1998 the Director of the Pabanice District Office granted permission for the operation of the workshop. The applicant appealed. On 23 March 1999 the Governor of Łódź quashed the decision of 25 November 1998 and remitted the case for reconsideration. The workshop ’ s owner appealed.", "23. On 13 November 2001 proceedings were instituted to determine whether the operation of the workshop was lawful. On the same day the applicant was informed that on 13 December 2001 an inspection of the building would be carried out. On the same day the Supreme Administrative Court dismissed the owner ’ s appeal against the decision of 23 March 1999.", "24. On 29 November 2001 the Mayor of Pabianice stayed the proceedings concerning the granting of permission until the Pabianice District Inspector of Construction Supervision had given a decision as to whether the operation of the workshop complied with the applicable legal requirements. The applicant appealed.", "25. On 8 March 2002 the Mayor of Pabianice issued an operation permit for the workshop. The applicant appealed. On 26 April 2002 the Governor of Łódź informed the applicant that the time-limit set by law to decide on her appeal had been extended because of the need for checks to be done by the building inspection authorities.", "26. On 7 June 2002 the Governor of Łódź upheld the decision of 8 March 2002. The applicant lodged a complaint with the Supreme Administrative Court.", "27. By a decision of 29 October 200 2 the Pabianice District Inspector of Construction Supervision authorised the operation of the workshop. The applicant appealed.", "28. On 25 February 2003 the Supreme Administrative Court quashed the decision of 7 June 2002 and the preceding decision of 8 March 2002. It observed that noise evaluation tests were necessary for a decision allowing the operation of the workshop. Such tests had already been carried out in the case, but not in an appropriate manner. They should have been carried out during the working hours of the workshop and at different times and should have allowed for the applicant ’ s involvement to enable her to put forward her arguments to the person conducting the tests.", "29. On 18 March 2003 the Pabianice Inspector of Construction Supervision stayed the proceedings concerning the permission to operate the workshop. The applicant appealed and they were resumed at an unspecified later date.", "30. On 3 July 2003 the Mayor of Pabianice issued a decision obliging the workshop ’ s owner to supplement the submitted documentation by, inter alia, submitting an evaluation of the noise level before 30 September 2003.", "31. On 29 October 2003 the District Inspector of Construction Supervision gave permission to operate the workshop on the basis of noise evaluation tests carried out by a certain S.K. The applicant appealed, challenging the soundness of the outcome of the tests and the way they had been carried out.", "32. On 28 January 2004 the Łódź Regional Inspector of Construction Supervision quashed the decision of 29 October 2003, finding that the applicant had not been given an opportunity to be sufficiently involved in the noise evaluation tests.", "33. On 22 October 2004 the applicant lodged a complaint with the Łódź Regional Inspector of Construction Supervision about inactivity on the part of the Pabianice District Inspector of Construction Supervision, to whom the case had been remitted for reconsideration on the strength of the decision of 28 January 2004.", "34. On 20 October 2004 the Łódź Regional Inspector of Construction Supervision gave a decision in which it found inactivity on the part of the Pabianice District Inspector of Construction Supervision and obliged him to give a decision by 20 February 2005.", "35. On 1 4 January 2005 the applicant lodged a complaint with the General Inspector of Construction Supervision about the administration ’ s failure to act in her case.", "36. By a decision of 7 March 2005 the General Inspector of Construction Supervision stated that no inactivity on the part of the Łódź Regional Inspector of Construction Supervision had been found.", "37. On 18 March 2005 the Pabianice District Inspector of Construction Supervision stayed the proceedings concerning the request for permission to operate, pending the outcome of noise tests to be carried out by the Regional Inspector of Environmental Protection. The applicant appealed. On 23 June 2005 the Łódź Regional Inspector of Construction Supervision allowed her appeal, quashed the decision staying the proceedings and ordered that they should be conducted further.", "38. On 2 7 July 2005 the applicant complained to the administrative court about the District Inspector ’ s failure to take any steps to have a proper noise evaluation carried out and to give a decision on the merits of the case. In his reply of 25 August 2005 the Regional Inspector summarised the developments in the proceedings since the applicant ’ s complaint of 22 October 2004 and reiterated that the proceedings were, after its decision of 23 June 2005, pending before the first-instance authority. It noted that the applicant ’ s appeal against the decision of 18 March 2005 to stay the proceedings was fully justified.", "39. By a judgment of 20 October 2005 the Łódź regional administrative court partly allowed the applicant ’ s complaint and set a one-month time ‑ limit for the District Inspector to give a decision. It summarised the conduct of the proceedings since its judgment of 25 February 2003. It further observed that the proceedings had been conducted exceedingly slowly and that no valid justification for this unreasonable delay had been adduced by the administrative authorities.", "40. The proceedings are pending." ]

[ "II. RELEVANT DOMESTIC LAW", "41. Under domestic law inactivity on the part of authorities is open to challenge.", "Firstly, a party to administrative proceedings can make a complaint to a hierarchically higher authority under Article 37 § 1 of the Code of Administrative Procedure in order to urge the relevant authority to issue a decision within the time ‑ limits fixed in that Code.", "42. If unsatisfied with the outcome of the proceedings initiated by a complaint under Article 37 of the Code of Administrative Procedure, up to 1 January 2004 a party could have lodged a complaint about inactivity on the part of the administrative authorities with the Supreme Administrative Court under Article 17 of the Act of 1995 on the Supreme Administrative Court. This provision was repealed with effect from 1 January 200 4.", "43. On 1 January 2004 the 1995 Act was replaced by the Act on Proceedings before Administrative Courts of 30 August 2002, which provides for similar remedies.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "44. The applicant complained that the State had failed to protect her home from nuisance arising from the operation of the workshop run by her neighbour. She relied on Article 8 of the Convention which, in so far as relevant, provides as follows:", "“1. Everyone has the right to respect for his ... home ...", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "45. The Government argued that the applicant had failed to exhaust the available domestic remedies. She should have lodged a claim with a civil court, referring to Article 144 in conjunction with Article 222 § 2 of the Civil Code of 1964. They were of the view that if there had been any disturbances affecting the applicant ’ s right to respect for her home, such as noise pollution, she should have addressed herself to a civil court in order to seek protection for her rights. They referred to the case-law of the Supreme Court which had held that the protection under Article 144 of the Code encompassed not only the owner ’ s obligation to abstain from direct interferences with the neighbouring property, but also from acts which could negatively affect persons living on it (III CZP 89/74). She should also have had recourse to the provisions of the Civil Code governing liability in tort. The administrative authorities had not been under any obligation to act in the applicant ’ s case.", "46. The applicant disagreed. She submitted that the authorities had been obliged to take positive measures to protect her against interferences with her right to respect for home and referred to the Court ’ s findings in López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303 ‑ C and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 ‑ B. In the circumstances of the case it was the task of the public administration to act as an arbiter and find, by way of taking necessary active steps provided for by law, the proper balance between the applicant ’ s interests and those of her neighbour, taking also into consideration the interests of the community. The authorities had failed to do so. In these circumstances, the applicant should not be obliged to have recourse to the available instruments of civil law.", "47. The Court finds that it is not required to decide whether or not the applicant has exhausted domestic remedies, as the complaint is in any event inadmissible for the following reasons.", "48. The Court has recognised in its case-law that the individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII).", "49. Thus in Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172, p. 18, § 40) the Court declared Article 8 applicable because “[i]n each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport”. In López Ostra (cited above, pp. 54-55, § 51), which concerned pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe environmental pollution may affect individuals ’ well ‑ being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable.", "50. Article 8 may apply in environmental cases, whether the pollution is directly caused by the State or whether State responsibility arises from failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant ’ s rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (see Powell and Rayner, p. 18, § 41, and López Ostra, pp. 54-55, § 51, both cited above).", "51. However, as demonstrated by the above-mentioned cases, in order to raise an issue under Article 8, the interference must directly affect the applicant ’ s home, family or private life and the adverse effects of the environmental pollution must attain a certain minimum level of severity. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects (see Fadeyeva v. Russia, no. 55723/00, §§ 68-69, ECHR 2005 ‑ IV and Fägerskiöld v. Sweden (dec.), no. 37664/04).", "52. Turning to the present case, the Court accepts that the applicant and her family might have been affected by the operation of the workshop in her neighbour ’ s house. However, the Court must also establish whether it has been shown that this nuisance reached the minimum level of severity set by its case-law.", "53. In this connection, the Court observes that in the course of the proceedings noise evaluation tests were carried out at an unspecified date before February 2003 and again in 2003. The Court is aware that the applicant criticised the procedure by which these tests had been carried out before the domestic authorities and that the administrative court accepted her arguments (see paragraphs 28, 31 and 32 above). In these circumstances it is not wholly implausible that the results of those tests were not fully reliable. However, the Court notes that the applicant has not submitted the results of those tests to the Court. Nor has she submitted, either in the domestic proceedings or in the proceedings before the Court, any alternative noise tests which would have allowed the noise levels in her house to be ascertained, and for it to be determined whether they exceeded the norms set either by domestic law or by applicable international environmental standards, or exceeded the environmental hazards inherent in life in every modern town (see, in this connection, Fadeyeva v. Russia, cited above, § 69 ).", "54. The Court further observes that the applicant has not submitted, either to the national authorities or to the Court itself, any documents to show that her health or that of her family had been negatively affected by the noise emitted by the workshop.", "55. In the absence of such findings it cannot be established that the State failed to take reasonable measures to secure the applicant ’ s rights under Article 8 of the Convention (compare and contrast the Court ’ s findings in noise pollution cases such as Moreno Gómez v. Spain, no. 4143/02, § § 59- 62, ECHR 2004 ‑ X; Ashworth and Others v. the United Kingdom, 20 January 2004 (dec.), no. 39561/98,).", "56. Having regard to the above considerations and its case-law, the Court finds that it has not been established that the noise levels complained of in the present case were so serious as to reach the high threshold established in cases dealing with environmental issues. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "57. The applicant complained of a violation of her right to a hearing within a reasonable time. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads:", "“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”", "58. The period to be taken into consideration began in September 1993 when the applicant requested that the lawfulness of the workshop ’ s operation be determined, and has not yet ended. It has thus lasted over fourteen years for three levels of jurisdiction.", "A. Admissibility", "59. The Government submitted that the applicant had not exhausted remedies available under Polish law in respect of excessive length of administrative proceedings. They argued that the applicant had had the opportunity to lodge with the Polish civil courts a claim for compensation for damage caused by the excessive length of the administrative proceedings under Article 417 of the Civil Code.", "60. The applicant argued that she should not be required to avail herself of the compensatory remedy relied on by the Government.", "61. The Court has already found that the complaint under section 17 of the Supreme Administrative Court Act was a sufficient and effective remedy in cases in which an applicant complains about the excessive length of administrative proceedings (see Zynger v. Poland (dec.), no. 66096/01, 7 May 2002 and Bukowski v. Poland (dec.), no. 38665/97, 11 June 2002). The same applies to the analogous remedy introduced by sections 3 and 149 of the Law on Procedure before Administrative Courts. Having regard to the fact that the applicant has availed herself of these remedies by lodging relevant complaints with the administrative courts, the Court sees no ground on which to depart from its established case-law and to find that the applicant should also have availed herself of the compensatory remedy relied on by the Government (see Olszewska v. Poland, no. 13024/05, §§ 32 ‑ 37, 8 December 2007).", "62. The Court concludes that, having availed herself of the remedy provided by administrative law, the applicant was not required to embark on another attempt to obtain redress by bringing a civil action for compensation. Accordingly, for the purposes of Article 35 § 1 of the Convention, the applicant has exhausted domestic remedies. The Government ’ s plea of inadmissibility on the ground of non ‑ exhaustion of domestic remedies must therefore be dismissed.", "63. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.", "B. Merits", "64. The Government refrained from making submissions on the merits of this complaint.", "65. The applicant reiterated that the proceedings had lasted too long. She stressed that their excessive length and various unjustified delays had been repeatedly acknowledged by various domestic authorities, in particular by the administrative courts.", "66. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).", "67. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).", "68. Having examined all the material submitted to it and in particular the findings of the domestic authorities that the proceedings were not conducted expeditiously, the Court has not found any grounds on which it could reach a different conclusion in the present case.", "69. Having regard to its case ‑ law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.", "70. There has accordingly been a breach of Article 6 § 1.", "III. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "71. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "72. The applicant claimed 125, 00 0 Polish zlotys (PLN) in respect of pecuniary and non-pecuniary damage. The Government contested this claim.", "73. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant 10, 0 00 euros (EUR) in respect of non ‑ pecuniary damage.", "B. Costs and expenses", "74. The applicant also claimed PLN 3,800 for legal costs borne in the proceedings before the Court. She did not submit any documents in support of her claim.", "75. The Government submitted that the applicant should obtain reimbursement of costs and expenses only in so far as it had been shown that these have been actually and necessarily incurred and are reasonable as to quantum.", "76. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that the applicant failed to produce any documents in support of his claim. In those circumstances, the Court makes no award under this head (see Adamiak v. Poland, no. 20758/03, § 49, 19 December 2006).", "C. Default interest", "77. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "5. The applicant was born in 1954 and lives in Zalaegerszeg.", "6. The applicant ’ s house is situated across the street from Zalaegerszeg Railway Station, in front of the starting position of trains. When about 1988 the Hungarian Railway Company (“MÁV”) replaced its steam engines with diesel ones, the noise level increased significantly.", "7. On 22 October 1991 the applicant and his neighbours filed an action in trespass against MÁV, seeking that it be obliged to keep its noise emission under control by constructing a noise barrier wall, modernising the railway station, preheating the engines in another place and avoiding the use of certain engines. This action was later extended to include a compensation claim.", "8. Between 7 February 1992 and January 1993 the proceedings were stayed upon the parties ’ request. From 22 July 1994 to 27 November 1998 the proceedings were suspended upon the applicant ’ s request, pending his similar complaint before the National Public Health and Medical Officer Service.", "9. In 1995 the applicant also complained to the Regional Environment Protection Authority about the noise disturbance. In remitted proceedings, on 27 August 1997 the Environment Protection Authority established the noise limits applicable to preheating trains. On 18 May 1998 it imposed a fine on MÁV for non-compliance with those limits. The noise did not decrease, therefore the applicant and his neighbours turned to the Public Prosecutor. On 4 May 2008 the Public Prosecutor initiated civil proceedings against MÁV. These proceedings were consolidated with the ones initiated by the applicant and his neighbours.", "10. Relying on acoustic and engineering expert opinions, on 24 September 2004 the Zalaegerszeg District Court established the existence of sound pollution and ordered MÁV to finance the installation of soundproof doors and windows on the plaintiffs ’ houses, but dismissed the remaining claims.", "11. On appeal, the case was remitted to the first instance.", "12. In the remitted proceedings, on 9 November 2005 the District Court delivered a partial judgment, maintaining that the noise level exceeded the limit value, prohibiting MÁV from making the excessive noise emission, and obliging it to construct a noise barrier wall.", "13. On appeal, on 30 March 2006 the Zala County Regional Court dispensed with the obligation to build the protection wall, considering it unnecessary in addition to the prohibition on noise pollution. The Regional Court relied on section 101 (3) of the Act no. LIII of 1996 on the Protection of Nature (“Nature Protection Act”).", "14. The partial judgment having become final, the first-instance proceedings continued with regard to the compensation claims. On 7 March 2008 the District Court ordered MÁV to pay the applicant 4,150,000 Hungarian forints [1] (HUF) in compensation for the loss of value of his house and HUF 445,000 [2] for the costs of replacing the doors and windows.", "15. On appeal, on 5 June 2008 the Regional Court partly reversed the judgment, dispensing with the award for the loss of value. It relied on a real estate expert opinion, according to which if MÁV complied with the partial judgment, the remaining noise would not reduce the market value of the house.", "16. MÁV complied with its payment obligation without delay. In addition to that, between 2010 and 2012 several noise mitigating measures, investments and developments were implemented at Zalaegerszeg Railway Station, including reduction in the number of trains passing through the station, minimisation of the stay of freight trains on passenger-train tracks and the stationing of trains in the applicant ’ s street, renovation of engines, electrification of shunting, reorganisation of pre-heating, limitation of the number of diesel engines and their operation only on branch tracks, and avoidance of unnecessary working of machines in the station area.", "17. The applicant claims that due to the above measures the noise has decreased to a degree but still exceeds the statutory limit value by night and at dawn. However, no evidence has been produced to that effect." ]

[ "II. RELEVANT DOMESTIC LAW", "18. Act no. LIII of 1 996 on the Protection of Nature provides as follows:", "Section 101", "“(1) Users of the environment shall – in the manner specified in this Act and in other laws – bear criminal, regulatory, civil and administrative liability for the effects exerted by their activities on the environment.", "(2) Users of the environment shall", "a) refrain from performing, and shall stop continuing to perform conduct endangering or damaging the environment; ...", "(3) In case of lack of success or non-compliance with the provisions contained in subsection (2) items a) and e) the environment protection authority or – in case of an activity permitted by another authority, upon the request of the environment protection authority – the permitting authority or the court shall – depending on the degree of environment-endangering or environment-damaging – restrict, suspend or prohibit the environment-endangering or environment-damaging activity until the conditions determined by it are met.", "(4) Where the carrying out of the prevention and restoration measures affects lands owned, possessed, (used) by others, the owner, possessor (user) of such lands shall tolerate the carrying out of such prevention and restoration measures. The owner, possessor (user) of such lands shall be entitled to indemnification.”", "Section 109", "“(1) Where the environmental components are damaged in ways prohibited under the Criminal Code, the public prosecutor shall act in compliance with the Code of Criminal Procedure.", "(2) In case of endangerment of the environment the public prosecutor shall also be entitled to bring an action for prohibiting the activity or seeking compensation for damages caused by the environment-endangering activity.”", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "19. The applicant complained that the noise disturbance caused by the operation of the railway station made his home virtually uninhabitable, and he had not received effective and timely protection against that nuisance. He relied on Articles 8, 13 and 17 of the Convention and Article 1 of Protocol No. 1.", "The Court considers that this complaint falls to be examined under Article 8, which reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home and his correspondence.", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "20. The Government contested that argument.", "A. Admissibility", "21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Merits", "22. The applicant submitted that the extreme noise disturbance caused by the railway station had started in 1988, while the first measures aiming at reducing the noise had only been implemented in 2010. The noise had exceeded the statutory levels for more than twenty years, and there still remained some unbearable noise by night and at dawn. In his view, due to the non- compliance with the statutory levels, the appropriateness of which was not questioned, the interference with his right to respect his private life and home could not be regarded as being ‘ in accordance with the law ’ or proportionate.", "23. The Government argued that the Nature Protection Act provided for a clear sanction system, which the courts had duly applied by prohibiting MÁV from making the excessive noise emission and by obliging it to bear the costs of installing soundproof doors and windows. In full compliance with this ruling, MÁV had implemented measures which had significantly reduced the noise emission. The remaining noise should be tolerated by the applicant, as his house was situated by a railway station, the activity of which served both public and private interests. Therefore, the restriction on his rights should be regarded as lawful and proportionate.", "24. The Court recalls that there is no explicit right in the Convention to a quiet environment, but where an individual is directly and seriously affected by noise, an issue may arise under Article 8 (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII ). Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Hatton and Others v. the United Kingdom, cited above, § 98).", "The Court has already held that noise significantly above statutory levels, to which the State has not responded with appropriate measures, may as such amount to a violation of Article 8 of the Convention (cf. Oluić v. Croatia, no. 61260/08, §§ 48 to 66, 20 May 2010; Moreno Gómez v. Spain, no. 4143/02, §§ 57 to 63, ECHR 2004 ‑ X; Deés v. Hungary, no. 2345/06, § 23, 9 November 2010 ).", "25. Turning to the present case, the Court notes that – even assuming that the status of MÁV, a State-controlled enterprise, is that of a legal entity distinct from the State – the State authorities had, upon the applicant ’ s complaint about the company ’ s noise emission, a positive obligation under Article 8 § 1 to strike a fair balance between the interest of the applicant in having a quiet living environment and the conflicting interest of others and the community as a whole in having rail transport.", "26. The Court notes that the applicant did not contest the appropriateness of the applicable noise limit values. It further notes that the applicant has not submitted any evidence to show whether the noise produced by the activities at the railway station still exceeds those values. However, the Court attaches importance to the fact, not contested by the Government, that the statutory noise values were overstepped until at least the end of the related proceedings in 2008, when MÁV paid for the replacement of the applicant ’ s doors and windows (see paragraph 16 above). The complaint about the noise disturbance was brought in the domestic courts in 1991. The Convention entered into force with regard to Hungary on 5 November 1992, and it took almost sixteen years from this date to carry out a proper balancing exercise and to reach an enforceable decision by the domestic courts. Therefore, the applicant remained unprotected against the excessive noise disturbance, which caused serious nuisance preventing him from enjoying his home, for an unacceptably long period.", "27. The Court accepts that the State enjoys a margin of appreciation in determining the steps to be taken to ensure compliance with the Convention when it comes to the determination of regulatory and other measures intended to protect Article 8 rights (see Deés v. Hungary, cited above, § 23 ). However, it emphasises that the existence of a sanction system is not enough if it is not applied in a timely and effective manner. In this respect it draws attention once again to the fact that the domestic courts failed to determine any enforceable measures in order to assure that the applicant would not suffer any disproportionate individual burden for some sixteen years.", "28. Therefore the Court concludes that the State has failed to discharge its positive obligation to guarantee the applicant ’ s right to respect for his home. Accordingly, there has been a violation of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "29. The applicant also complained that the length of the proceedings which he brought in this matter was incompatible with the “reasonable time” requirement of Article 6 § 1.", "The Government did not contest that argument.", "30. The period to be taken into consideration began on 5 November 1992, when the recognition by Hungary of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time. The Court notes that the proceedings had already been pending for over one year on that date. The period in question ended on 8 June 2008. It thus lasted for fifteen years and seven months before two levels of jurisdiction. From this time, a period of one year between 7 February 1992 and January 1993 must be deducted, as the proceedings were stayed upon the parties ’ request. Another period of four years between 22 July 1994 and July 1998 must be further deducted, when the proceedings were suspended upon the applicant ’ s request (see paragraph 8 above). The remaining duration is therefore ten years and seven months for two levels of jurisdiction. In view of such lengthy proceedings, this complaint must be declared admissible.", "31. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present application (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000– VII). Having examined all the material submitted to it, it finds no reason to reach a different conclusion in the present circumstances. Having regard to its case-law on the subject, the Court finds that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.", "III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION", "32. The applicant, lastly, invoked Article 1 of Protocol No. 12 to the Convention in respect of alleged discrimination in the above proceedings.", "33. Since Hungary has not ratified Protocol No. 12, this complaint must be rejected as incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and rejected pursuant to Article 35 § 4.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "34. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "35. The applicant claimed 4, 000, 0 00 Hungarian forints (HUF) [3] in respect of pecuniary damage, as compensation for the alleged decrease in the market value of his house. As non-pecuniary damages, he claimed HUF 18,000,000 [4] for the violation of Article 8 and HUF 10,000,000 [5] for the violation of Article 6 (length).", "36. The Government contested these claims.", "37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained some non-pecuniary damage and awards him, on the basis of equity, EUR 9 ,5 00 under this head.", "B. Costs and expenses", "38. The applicant also claimed HUF 929,700 [6] for the costs and expenses incurred before the domestic courts and HUF 73,943 [7] (HUF 30,000 of lawyer ’ s fee and HUF 43,943 of translation costs) plus VAT for those incurred before the Court.", "39. The Government contested this claim.", "40. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads.", "C. Default interest", "41. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]

[ "I. THE CIRCUMSTANCES OF THE CASE", "6. The applicant was born in 1961 and lives in the village of Tatariv, which forms part of Yaremche, a resort town in the Ivano-Frankivsk Region of Ukraine.", "A. Background to the case", "7. The applicant owns a house and an adjacent plot of land in Tatariv. The village of Tatariv is situated in a mountainous region and because of its location holds the status of mountainous residential area. It is also known as a resort for “green tourism” in Carpathy region. It is situated on the banks of Prut river.", "8. On 10 February 2000 Tatariv Village Council (“ Tatariv Council”), having considered four sites on which to construct a new cemetery, chose the land previously occupied by garages belonging to a company called Vorokhtya Lisokombinat (“the VL plot”) as it was not occupied, it was located in the village and the cemetery could be constructed at low cost.", "9. The VL plot is located near the applicant ’ s house (for further details see paragraphs 1 4 and 3 3 below), in which he was residing with his family at the time. Two rivers flow at a distance of 30 and 70 metres from the VL plot. Drinking water for Tatariv comes from wells fed by groundwater; there is no centralised water supply system and the wells are not protected.", "10. On 24 May 2000 the All-Ukrainian Bureau of Environmental Investigations informed the Chairman of Yaremche Town Council (“ Yaremche Council”) that the construction of the cemetery on the VL plot might cause contamination of the river and the wells situated on adjacent plots of land by ptomaine carried by the groundwater flow.", "11. The cemetery was opened for use by the Yaremche Council in August 2000. It is being administered by the Yaremche Council.", "12. On 6 February 2001 the Yaremche Environmental Health Inspectorate ( санітарно-епідеміологічна станція ) concluded that the cemetery should not have been constructed on the VL plot in view of its proximity to residential buildings and the risk of contamination of the surrounding environment by ptomaine.", "13. On 20 August 2002 the Regional Environmental Health Inspectorate of the Ministry of Health refused to approve the construction plan. In particular, it stated that the cemetery should not be situated in the proposed area as its distance from private housing did not comply with the norms and standards of a health protection zone ( санітарно-захисна зона ).", "14. On 30 August 2002 and 20 January 2003 the Marzeyev Institute of Hygiene and Medical Ecology, part of the Academy of Medical Sciences, informed the applicant and Yaremche Council that another location would have to be found for the cemetery. It was of the view that constructing the cemetery on the VL plot would breach environmental health laws and regulations and would worsen the living conditions of the residents of adjacent houses. In particular, it would be located less than 300 metres from the nearest residential buildings, which are 38 metres away from the edge of the cemetery (which would not allow for the establishment of the necessary health protection zone). It could lead to contamination of the groundwater reservoir used by the residents of adjacent households for drinking water and of the nearby rivers with by-products of human decomposition. It further stated that a health protection zone was also intended to reduce psychological pressure on the residents of adjacent houses.", "15. The applicant alleges that from 2002 to the present moment he has been receiving treatment for hypertension and various cardio-related diseases. He supplied in this respect sick leave certificates and medical certificates from 2002 and 2006, relating to him and his wife. He has also provided the Court with death certificates for two of his neighbours Mr R.G. and Mr D.B., who also resided in the vicinity of the prohibited cemetery and died at the age of 68 and 43, respectively.", "16. On 17 September 2002 the Ivano-Frankivsk Regional Prosecutor ’ s Office informed the applicant that it could not intervene in respect of unauthorised burials taking place on the VL plot: the issue was in the competence of local authorities, including the Yaremche Council, which was responsible for management and maintenance of the cemetery.", "17. On 22 April 2003 the Executive Board of Yaremche Council informed the Regional State Administration that Tatariv Council was considering resettling the applicant. He had twice been invited to discuss a proposal for resettlement of his family to another part of the village but no response had been received.", "18. On 5 May 2003 the Regional Urban Development and Architecture Department (“the Urban Development Department”) informed Yaremche and Tatariv Councils that the area near the applicant ’ s house was not suitable for construction of the cemetery as it did not respect a 300-metre wide health protection zone that would protect the residential buildings and a 50-metre wide water protection zone to protect the Prutets river.", "19. On 18 May 2003 the Tatariv Council resolved inter alia that the relevant local authorities were prepared to consider the purchase of a house or apartment for the applicant, or to pay him compensation if he refused to reside in the cemetery ’ s vicinity.", "20. On 21 April 2004 the issue of the site of the cemetery was examined by officials from the Urban Development Department, the Municipal Housing Department, the environmental health inspectorate and the Land Management Department. They recommended to the Chairman of Tatariv Council that another plot on the outskirts of the village of “ Ventarivka ” be used as a cemetery.", "21. On 22 June 2005 the Regional State Administration informed the applicant that the only way to resolve the issue was to resettle him. They asked him to agree to such a resettlement. They also confirmed that Yaremche Council was willing either to buy a house for the applicant or to provide him with an equivalent plot of land and the funds necessary to construct another house", "22. On 18 July 2005 the Chairman of Yaremche Council invited the applicant to inform the authorities whether his family was willing to resettle and, if so, on what conditions.", "23. In reply, the applicant sought more information on the proposal, such as, details of the specific land plot, house and facilities to be provided.", "24. By letter of 27 July 2005 the Chairman of Yaremche Council, in reply to the applicant ’ s request for specific proposals, invited the applicant to discuss the proposal in person with a view to a possible compromise.", "25. On 15 August 2005 the Chairman of Tatariv Council asked the Ukrainian State Urban Planning Institute ( Дніпромісто – “the Institute”) to develop proposals for the site of a cemetery in the village.", "26. On 21 December 2005 the Institute informed the applicant that it was not within its competence to decide matters such as the question of where to situate the cemetery. It also mentioned that the local development plan for Tatariv proposed a plot in the Chertizh area for the cemetery. However, this was subject to approval by the local council and environmental health inspectorate. It also informed the applicant that no letter of 15 August 2005 with proposals to investigate possible site of the cemetery (see paragraph 2 5 above) had been received from Tatariv Council.", "27. By letter of 6 March 2006 addressed to the applicant and the Chairman of Tatariv Council, the Urban Development Department stated that it had repeatedly proposed to Tatariv Council that it use an area called Venterivka for the site of the cemetery. However, the council had not taken up that suggestion for unspecified reasons. It also informed the applicant that it was within Tatariv Council ’ s competence to decide on the allocation of a plot of land for a cemetery.", "28. On several occasions between August 2006 and June 2008 the applicant and members of his family, who resided together, asked Tatariv Council to grant each of them a plot of land on which to construct a house because they felt that living in the cemetery ’ s vicinity was intolerable. Tatariv Council rejected the requests because of a lack of available plots of land.", "29. According to the results of examinations of drinking water from the applicant ’ s well conducted by the Yaremche Environmental Health Inspectorate dated 21 August 2008 and 7 July 2009, the toxicological, chemical and organoleptic indices of the water complied with national standards (no E. coli index examination had been made). A conclusion was reached that water could be used for household needs.", "30. On 23 August 2008 and 6 July 2009 the Yaremche Environmental Health Inspectorate carried out a bacteriological analysis of the water from the same well. It established, contrary to the results of the examinations held on 21 August 2008 and 7 July 2009 (see paragraph 29 above) that the E. coli bacteria index in the water gave a reading of 2,380, whereas the normal reading was 10 (see paragraph 7 2 below), and concluded that the water could not be used for household needs. It also recommended disinfecting the water supply. The cause of water pollution was not established and would require an additional expert report.", "31. On 14 December 2009 in response to a request from the Government, the Yaremche Environmental Health Inspectorate concluded that the reading obtained from the bacteriological analysis which had indicated water contamination did not have any connection to the location of the cemetery, but could also have been caused by other sources.", "32. On 15 December 2009 the Regional Environmental Health Inspectorate informed the applicant that the reasons for the bacterial contamination of the water supply could be established on the basis of a hydrogeological assessment as to whether there were any connections between the drinking water reservoirs and possible sources of contamination. It further stated that according to an analysis of water taken from different parts of the village, the E. coli index exceeded the allowed reading established by law, which provided that drinking water should not contain any index of E. coli or be less than 1 in that index per 100 cm 3 (see paragraph 7 2 in relation to the domestic drinking water standards), nevertheless the E. coli index ranged from 23 to 2,380.", "33. The applicant ’ s house and well are some 38 metres from the nearest boundary of the cemetery.", "34. By letters of 10, 15 and 16 December 2009 from the Tarariv Council, Yaremche Executive Committee and the Ivano-Frankivsk Regional State Administration, the authorities informed the Government ’ s agent that the applicant had failed to manifest any interest in being resettled.", "B. Proceedings against Tatariv Council", "35. On 10 August 2000 the Verkhovyna Court, following the applicant ’ s claim in proceedings against the Tatariv Council, held that the Council ’ s decision to situate the cemetery on the VL plot had been unlawful.", "36. At the end of August 2000 residents of Tatariv carried out the first burial at the cemetery.", "37. On 1 December 2000 the Yaremche Court, in another set of new proceedings, found that Tatariv Council had failed to follow the proper procedure for the allocation of a plot of land for a cemetery, namely obtaining an environmental health assessment, and ordered it to prohibit burials on the VL plot.", "38. On 24 December 2000 the residents of Tatariv were informed of the court ’ s decision to stop the use of the VL plot as a cemetery. Nevertheless, burials continued at the site.", "39. On 29 December 2000 Tatariv Council prohibited burials on the VL plot. On 2 February 2001 the State Bailiffs ’ Service terminated enforcement proceedings in the case, considering that the judgment had been fully complied with by the Tatariv Council.", "40. On 2 March 2001 Tatariv Council again decided that the VL plot could be used for the new village cemetery. On 26 March 2001 the applicant lodged a new claim against that decision with the Yaremche Court.", "41. In the meantime, on 22 August 2001 the Regional Environmental Health Inspectorate informed the relevant judge of the Yaremche Court, which assumed jurisdiction over the claims lodged on 26 March 2001 (see paragraph 4 0 above), that the site of the cemetery did not comply with national environmental health laws and regulations on the planning and construction of urban areas. In particular, the location did not comply with the requirement of a health protection zone between the cemetery and the nearest residential buildings.", "42. On 16 October 2001 the Yaremche Court declared Tatariv Council ’ s decision of 2 March 20 0 1 unlawful. On 17 April 2002 the Supreme Court upheld that judgment.", "43. On 25 December 2001 Tatariv Council cancelled its decision of 2 March 2001 in pursuance of the judgment of 16 October 2001.", "44. On 3 July 2003 Tatariv Council approved a new development plan for the village. The plan again authorised the use of the VL plot as a cemetery.", "45. On 22 July 2003 the applicant again instituted proceedings against Tatariv Council, seeking to have the approval of the new development plan for the village, insofar as it concerned the location of the cemetery, declared unlawful. He also sought compensation for non-pecuniary damage, court fees and legal expenses.", "46. On 22 August 2003 the Verkhovyna Court ordered Tatariv Council to inform the residents of the village that burials at the unauthorised cemetery near the applicant ’ s house were prohibited.", "47. By that time, up to seventy burials had been carried out on the VL plot. The distance between the applicant ’ s house and some of the graves was less than 120 metres.", "48. The Chairman of Tatariv Council argued before the court that there was no other suitable area for a cemetery in the village. She further submitted that the applicant ’ s allegation of possible contamination of the water supply was unfounded, as the groundwater flowed away from his property.", "49. On 26 December 2003 the Verkhovyna Court allowed the applicant ’ s claims and held that the new construction plan was unlawful as regards the location of the cemetery. It found that the VL plot was not suitable for use as a cemetery. In particular, constructing the cemetery on the VL plot had breached the environmental health laws and regulations requiring the establishment of: (a) a health protection zone 300 metres wide separating residential areas from a risk factor; and (b) a water protection zone 50 metres wide separating water supply sources from a risk factor. It observed that those distances could not be reduced. It ordered Tatariv Council to close the cemetery and to pay the applicant 25,000 hryvnias (UAH) [1] in compensation for non-pecuniary damage and UAH 609.45 [2] for costs and expenses.", "50. On 28 May 2004 the Ivano-Frankivsk Regional Court of Appeal (“Court of Appeal”) upheld the judgment of 26 December 2003 in part. In particular, it decided that no award of non-pecuniary damage should be made to the applicant, and it reduced the award for costs and expenses to UAH 151 [3].", "51. On 9 October 2006 the Supreme Court upheld the ruling of 28 May 2004.", "C. Enforcement proceedings", "52. On 18 June 2004 the Verkhovyna Court issued two writs of execution ordering Tatariv Council to adopt a decision declaring the new development plan unlawful and to close the cemetery.", "53. On 7 July 2004 the State Bailiffs ’ Service instituted enforcement proceedings in the case.", "54. Between July 2004 and February 2005 the State Bailiffs ’ Service imposed fines on Tatariv Council several times for its refusal to comply with the judgment of 26 December 2003.", "55. On 3 March 2005 the Bailiffs terminated the enforcement proceedings, stating that it had been impossible to enforce the decision without the involvement of Tatariv Council, whose members had failed to adopt a decision in pursuance of the judgment of 26 December 2003.", "56. In March 2005 the applicant requested the Verkhovyna Court to change the terms of the enforcement of the judgment of 26 December 2003. In particular, he sought to have the Chairman of Tatariv Council ordered to execute the judgment.", "57. On 17 October 2005 the Verkhovyna Court rejected the applicant ’ s request. It held that the Chairman had acted only as a representative of Tatariv Council, the respondent in the case. The Chairman had not been involved as a party to the proceedings. On 6 December 2005 the Court of Appeal upheld the ruling of 17 October 2005.", "58. In August 2005 the applicant challenged the alleged omissions and inactivity of the Chairman of Tatariv Council as regards the enforcement of the judgment of 26 December 2003 before the Verkhovyna Court.", "59. On 8 November 2005 the Verkhovyna Court found no fault on the part of the Chairman and rejected the applicant ’ s claim. On 12 January 2006 the Court of Appeal upheld that decision.", "60. On 16 August 2006 Tatariv Council again refused to declare the new development plan unlawful and to close the cemetery.", "61. On 28 August 2006 the State Bailiffs ’ Service informed the applicant that the enforcement proceedings were not subject to renewal.", "62. The applicant also unsuccessfully sought to institute criminal proceedings against the Chairman of Tatariv Council for her alleged failure to enforce the judgment of 26 December 2003.", "D. Proceedings against private individuals", "63. On 7 May 2002 the Yaremche Court, acting upon the applicant ’ s request, refused to institute criminal proceedings against a private individual, K.M., for using the VL plot for a burial. On 16 July 2002 and 21 January 2003 the Court of Appeal and the Supreme Court, respectively, upheld this decision.", "64. On 3 October 2002 the Yaremche Court in two separate judgments rejected as unsubstantiated damages claims brought by the applicant and his neighbour, D.B., against K.M. and F.G. (private individuals) concerning the unlawful use of the land near their houses for burial purposes. It found no breach of applicant ’ s rights by the respondents.", "65. The judgments were upheld on 24 December 2002 (in two separate rulings) by the Court of Appeal and subsequently on 15 September 2005 and 15 February 2006 by the Supreme Court." ]

[ "II. RELEVANT DOMESTIC LAW AND PRACTICE", "A. Constitution of Ukraine, 26 June 1996", "66. The relevant provisions of the Constitution read as follows:", "Article 16", "“To ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe — a catastrophe of global scale, and to preserve the gene pool of the Ukrainian people, is the duty of the State.”", "Article 50", "“Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right ...”", "B. Law of Ukraine “On Ensuring the Environmental Health of the Public” of 24 February 1994", "67. The relevant extracts from the Law provide as follows:", "Article 15. Requirements as to urban planning and construction, development, manufacture and use of new technologies and means of production", "“Enterprises, institutions, organisations and citizens shall comply with the requirements of environmental health legislation during ... construction and in urban planning development ...", "Building and urban development ... should first and foremost aim at creating the most prosperous conditions for life and maintaining and improving the health of citizens.”", "Article 18. Requirements concerning the domestic drinking water supply and water consumption areas", "“The Government and local self-government authorities shall provide the residents of cities and other residential areas with drinking water, whose quantity and quality must comply with the requirements of environmental health legislation and [with] national standards ...", "...", "Special health protection zones shall be established for domestic water supply systems and their sources.”", "C. Law of Ukraine “On Burials and Burial Service” of 10 July 2003", "68. According to the relevant provisions of that law the State standards relating to planning and construction of burial vicinities shall include the State construction and environmental standards (Article 5 of the Law). Under Article 8 of the Law the local self-government bodies shall be responsible for allocation of land, construction, operation and administration of the cemeteries. Burial, pursuant to Article 12 of the Law, may be effectuated on the basis of a request lodged with the head of the village council or a relevant burial service. According to Article 23 of the Law, the executive bodies of village, town and city councils shall be responsible for planning and organisation of the territories of the burial vicinities, according to the general construction plans of the relevant residential areas and taking into account town planning, environmental and sanitary and hygiene requirements.", "D. Law of Ukraine “On Drinking Water and the Drinking Water Supply” of 10 January 2002", "69. The Drinking Water and Water Supply Act of 10 January 2002 (see relevant extracts from the Act below) establishes framework regulations for sanitary and hygiene standards of drinking water and water supply. In particular, Sections 27 – 30 of that Act establish obligatory standards for drinking water and its supply, obligatory for compliance by the State authorities. These standards, according to Section 28 of the Act shall be established by the Cabinet of Ministers and shall be monitored by the Chief Sanitary Doctor of Ukraine, administering the State Sanitary and Epidemic Service of Ukraine. The relevant extracts from the Law provide as follows:", "Article 13. Powers of local self-government bodies concerning drinking water and the drinking water supply", "“Local self-government bodies shall be authorised:", "to approve urban development projects and other documents relating to town planning, taking into account the requirements of [this Act];", "... ”", "Article 22. Rights and duties of consumers of drinking water", "“Consumers of drinking water shall be entitled:", "to be provided with drinking water of a quality that complies with national standards ... ”", "Article 36. Limitations on economic and other activities within health protection zones", "“ ...", "It is prohibited to place, construct, operate or reconstruct enterprises, installations and other objects for which full compliance with the requirements of the health protection zones [applicable to] projects, building and reconstruction and other projects cannot be guaranteed.", "...", "Within the second belt of the health protection zone:", "it is prohibited to place a cemetery ... or other object that [may] create a threat of microbial contamination of water ... ”", "E. The National Environmental Health Regulations establishing “Environmental Health Requirements Concerning the Construction and Maintenance of Cemeteries in Residential Areas of Ukraine” of 1 July 1999", "70. The relevant extracts from the Law provide as follows:", "1. General Provisions", "“ ...", "1.2. The National Environmental Health Regulations are statutory and binding on public officials and citizens. ... ”", "3. Environmental Health Rules as to the Construction of Cemeteries", "“3.2. The location of a cemetery and its size shall be envisaged by the general construction plan of a residential area; the allocation of a plot of land for a cemetery, new cemetery construction plans, and the expansion and reconstruction of operating cemeteries are subject to approval by the local offices of the State Environmental Health Inspectorate.", "...", "3.5. ... [A] health protection zone between a cemetery for traditional burials or a crematorium and residential or public buildings, recreational areas and allotments shall not be less than 300 metres wide. ...", "[The following] cannot be located within a health protection zone:", "- residential houses with a household plot, dormitories, hotels, guest houses.”", "F. The Relevant Domestic Standards Relating to Drinking Water, Construction of Cemeteries and Water Protection Zones", "71. According to the Resolution of the Cabinet of Ministers No. 2024 of 18 December 1998 “On the Legal Regime of Sanitary Protection Zones for Water Objects”, it is prohibited to place cemeteries and other objects which create a danger of microbic water pollution within the second belt of water protection zone.", "72. According to the Appendix No. 1 to the State Sanitary Norms and Rules on Hygiene of Drinking Water for Human Consumption, approved by the Ministry of Health ( ДСанПіН 2.2.4.-171-10 ) on 12 May 2010, drinking water should not contain any traces of E. coli to be considered safe for human consumption. These regulations replaced the State Sanitary Rules and Norms “ On Placement and maintenance of wells and underground captation of water sources used for decentralised household drinking water supply”, as approved by the Order No. 384 of the Ministry of Health of Ukraine on 23 December 1996. The 1996 State Sanitary Rules and Norms established that the index of E. coli bacteria per 1 cubic dm ( вміст бактерій групи кишкової палички в 1 куб. дм або “ Індекс ВГКП ” ) should not exceed 10. According to that standard a coliphage content, i.e. a bacteriophage that infects E. coli, should equal to “zero”.", "THE LAW", "I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION", "73. The applicant complained of a violation of Article 8 of the Convention. In particular, he submitted that the construction of a cemetery near his house had led to the contamination of his supply of drinking water and water used for private gardening purposes, preventing him from making normal use of his home and its amenities, including the soil of his own plot of land, and negatively affecting his and his family ’ s physical and mental health.", "The text of Article 8 reads as follows:", "“1. Everyone has the right to respect for his private and family life, his home ....", "2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”", "A. Admissibility", "74. The Government raised no objection as to the admissibility of this complaint. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.", "B. Applicability of Article 8", "1. The parties ’ submissions", "75. The Government submitted that there was no evidence of any adverse effects on the applicant ’ s health which had resulted from the construction and use of the cemetery in issue. Nevertheless, they agreed that the applicant could have sustained some suffering as a result of the construction of the cemetery in the land plot adjacent to his house.", "76. The applicant maintained his complaints, stating that the continued use of the cemetery had rendered his home virtually uninhabitable and his land unsuitable for use. He submitted that he could not use his plot of land for gardening nor the well on his land for drinking water for fear of being poisoned. The applicant further submitted that he and his family had been disturbed by the burial ceremonies carried out near their house.", "2. The Court ’ s assessment", "77. As the Court has noted in a number of its judgments, Article 8 has been relied on in various cases in which environmental concerns are raised (see, among many other authorities, Fadeyeva v. Russia, no. 55723/00, § 68, ECHR 2005 ‑ IV ). However, in order to raise an issue under Article 8 the interference about which the applicant complains must directly affect his home, family or private life and must attain a certain minimum level if the complaints are to fall within the scope of Article 8 (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C; and Fadeyeva, cited above, § 69-70). Therefore, the first point for decision is whether the environmental pollution of which the applicant complains can be regarded as affecting adversely, to a sufficient extent, the enjoyment of the amenities of his home and the quality of his private and family life (see Ivan Atanasov v. Bulgaria, no. 12853/03, § 66, 2 December 2010 ). In this respect, the Court recalls that water pollution was one of the factors which was found to affect the applicants ’ health and hence their ability to enjoy their home, private and family life in the case of Dubetska and Others v. Ukraine (no. 30499/03, §§ 110 and 113, 10 February 2011).", "78. The assessment of the minimum level is relative and depends on all the circumstances of the case, such as, the intensity and duration of the nuisance and its physical or mental effects. The general context of the environment should also be taken into account. The Court recently recalled that there could be no arguable claim under Article 8 if the detriment complained of was negligible when compared to the environmental hazards inherent in life in every modern city (see Hardy and Maile v. the United Kingdom, no. 31965/07, § 188, 14 February 2012 ).", "79. As regards health impairment, it is hard to distinguish the effect of environmental hazards from the effects of other relevant factors, such as, age, profession or personal lifestyle. Also, as regards the general context of the environment, there is no doubt that severe water and soil pollution may negatively affect public health in general and worsen the quality of an individual ’ s life, but it may be impossible to quantify its actual effects in each individual case, “ quality of life” itself being a subjective characteristic which does not lend itself to a precise definition (see, mutatis mutandis, Ledyayeva and Others v. Russia, nos. 53157/99, 53247/99, 53695/00 and 56850/00, § 90, 26 October 2006).", "80. Taking into consideration the evidentiary difficulties involved, the Court will primarily give regard to the findings of the domestic courts and other competent authorities in establishing the factual circumstances of the case. As a basis for the analysis it may use, for instance, domestic legal provisions determining unsafe levels of pollution and environmental studies commissioned by the authorities. Special attention will be paid by the Court to individual decisions taken by the authorities with respect to an applicant ’ s particular situation, such as an undertaking to revoke a polluter ’ s operating licence or to resettle a resident away from a polluted area. However, the Court cannot rely blindly on the decisions of the domestic authorities, especially when they are obviously inconsistent or contradict each other. In such a situation it has to assess the evidence in its entirety. Further sources of evidence for consideration in addition to the applicant ’ s personal accounts of events, will include, for instance, his medical certificates as well as relevant reports, statements or studies made by private entities (see Dubetska and Others v. Ukraine, § 107, cited above, with further references ).", "81. The Court recalls that Article 8 has been found to apply where the dangerous effects of an activity to which the individuals concerned were likely to be exposed established a sufficiently close link with private and family life for the purposes of Article 8 of the Convention (see Hardy and Maile v. the United Kingdom, § 189, cited above ). In that case, the Court recognised that the potential risks to the environment caused by the construction and operation of two liquefied natural gas (“LNG”) terminals established a sufficiently close link with the applicant ’ s private live and home for the purposes of Article 8 and thereby triggered the application of that provision ( see Hardy and Maile v. the United Kingdom, § 192, cited above).", "82. As to the present case, the Court accepts that the applicant and his family may have been affected by the water pollution at issue. However, the Court must establish, in the absence of direct evidence of actual damage to the applicant ’ s health, whether the potential risks to the environment caused by the cemetery ’ s location established a close link with the applicant ’ s private life and home sufficient to affect his “quality of life” and to trigger the application of the requirements of Article 8 of the Convention (see paragraphs 78 – 8 1 above).", "83. The Court notes that the domestic environmental health and sanitary regulations clearly prohibited placing the cemetery in close proximity to residential buildings and water sources (see paragraphs 6 7 to 72 above). It appears that the nearest boundary of the cemetery is situated 38 metres away from the applicant ’ s house (see paragraph 3 3 above). This cannot be regarded as a minor irregularity but as a rather serious breach of domestic regulations given that the actual distance is just over one tenth of the minimum distance permissible by those rules. Furthermore, the cemetery is a continuous source of possible health hazards and the potential damage caused by such is not easily reversible or preventable. Such environmental dangers have been acknowledged by the authorities on numerous occasions, including, by prohibiting the use of the illegal cemetery for burials and by the offer to resettle the applicant (see paragraphs 20 – 25 and 49 above). It further notes that the domestic authorities established that the construction of a cemetery at the said location placed the applicant at risk of contamination of the soil and of the drinking and irrigation water sources because of emanations from decomposing bodies like ptomaine (see paragraph 10 above). The Court has particular regard to the fact that there was no centralised water supply in the Tatariv village and villagers used their own wells (see paragraph 9 above). It also appears that the high level of E. coli found in the drinking water of the applicant ’ s well was far in excess of permitted levels and may have emanated from the cemetery (see paragraphs 1 2, 1 8 and 3 0 above), although the technical reports came to no definitive or unanimous conclusion as to the true source of E. coli contamination (see paragraph 31 above). In any event, the high level of E. coli, regardless of its origin, coupled with clear and blatant violation of environmental health safety regulations confirmed the existence of environmental risks, in particular, of serious water pollution, to which the applicant was exposed.", "84. Under such circumstances, the Court concludes that the construction and use of the cemetery so close to the applicant ’ s house with the consequent impact on the environment and the applicant ’ s “quality of life ” reached the minimum level required by Article 8 and constituted an interference with the applicant ’ s right to respect for his home and private and family life. It also considers that the interference, being potentially harmful, attained a sufficient degree of seriousness to trigger the application of Article 8 of the Convention.", "C. Compliance with Article 8", "1. Submissions by the parties", "85. The Government maintained that the cemetery had been built in the interests of the villagers of Tatariv, as there had been absolutely no other place in the mountainous region near the village that could be used for a cemetery. They further stated that while it was true that the cemetery had been built in breach of environmental health laws and regulations as it had lacked the health protection zone required by law, the authorities had done all they could to prohibit burials and to provide the applicant with an opportunity to be re- housed, even though such an obligation to resettle had not existed in law. According to them, he had continuously rejected such proposals. In this respect they supplied letters of 10, 15 and 16 December 2009 from Tarariv Council and the Ivano-Frankivsk Regional State Administration, in which the municipal authorities stated that the applicant was not interested in resettlement (see paragraph 3 4 above). The Government accepted that the fact that the cemetery was placed on the VL plot engaged State ’ s positive obligations under Article 8 of the Convention.", "86. The applicant maintained his complaints and submitted that the decision to construct the cemetery in the vicinity of his house had been taken in breach of domestic regulations and that the Ukrainian authorities ’ measures to remedy the situation had been insufficient and inadequate. In particular, he stated that the authorities had done nothing to close the illegal cemetery, had failed to discontinue burials or to redress the situation by providing him with an alternative. The applicant submitted that he did not have anywhere to move to and he did not have enough money to build a new house. He mentioned that, despite his requests, no detailed and specific resettlement proposal had ever been made by the authorities.", "2. The Court ’ s assessment", "87. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities ’ adopting measures designed to secure respect for private life and home (see, with further references, Moreno Gómez v. Spain, no. 4143/02, § 55, ECHR 2004 ‑ X ).", "88. Environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health. The Court notes that the allegations of environmental harm in the instant case do not, as such, relate to the State ’ s involvement in industrial pollution ( see, in the context of serious industrial pollution, Dubetska and Others v. Ukraine, § 73, cited above ). However, they concern allegations of health hazards arising from the local authority ’ s decision to locate a cemetery just 38 meters from the applicant ’ s home in breach of domestic regulations plus the State ’ s failure to act in securing compliance with the domestic environmental standards. The allegations also concern the State ’ s failure to regulate the activities of the municipality in line with such standards. The Court ’ s task in such a situation is to assess whether the State took all reasonable measures to secure the protection of the applicant ’ s rights under Article 8 of the Convention. In making such an assessment factors, including compliance with the domestic environmental regulations and judicial decisions, must be analysed in the context of a given case (see, mutatis mutandis, Dubetska and Others v. Ukraine, cited above, § 141 ). In particular, where domestic environmental regulations exist, a breach of Article 8 may be established where there is a failure to comply with such regulations (see Moreno Gómez v. Spain, cited above, §§ 56 and 61).", "89. Moreover, the principles applicable to an assessment of the State ’ s responsibility under Article 8 of the Convention in environmental cases are broadly similar, regardless of whether the case is to be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under Article 8 § 1 of the Convention or in terms of an “interference by a public authority” to be justified in accordance with Article 8 § 2. Furthermore, the procedural safeguards available to the applicant under Article 8 may be rendered inoperative and the State may be found liable under the Convention where a judicial decision, prescribing certain conduct to the authorities on environmental issues, is ignored by the authorities or remains unenforced for an important period of time (see, mutatis mutandis, Taşkın and Others v. Turkey, no. 46117/99, §§ 124-25, ECHR 2004 ‑ X).", "90. Given that the applicant complains about direct Government responsibility for the placement of the cemetery in close proximity to his home and the pollution flowing therefrom, the Court will consider the case as one of direct interference with the applicant ’ s rights under Article 8 (see paragraph 84 above).", "91. As to the assessment of compliance with the requirement of lawfulness under Article 8 of the Convention, combined with the requirements of compliance with the domestic regulations, the Court notes the following:", "( i ) Tatariv Council ’ s decision to situate the cemetery on the VL plot was taken in breach of the National Environmental Health Regulations and in particular the 300 metres “health protection zone” requirement (see paragraph 71 and 72 above ). There was no lawfully approved construction plan, in contravention of the Laws of Ukraine “On Burials and Burial Service” (see paragraph 6 8 above) and “On Drinking Water and the Drinking Water Supply ”. In particular, the latter Act in its Sections 27 – 30 established obligatory sanitary and hygiene standards of drinking water and water supply, envisaging no E. coli content in drinking water (see paragraph 72 above);", "(ii) The unlawfulness of the placement of the cemetery and the non-compliance with health and water protection zones were signalled on numerous occasions by the environmental health authorities and were acknowledged in the decisions of the domestic courts on at least six occasions (see paragraphs 1 2 - 1 4, 1 8, 3 5, 3 7, 4 2, 4 6 and 49 - 5 1 above );", "( iii) The domestic authorities, responsible for the administration and maintenance of the cemetery under the law, failed to respect and to give full effect to the final and binding judgment of 26 December 2003 given by the Verkhovyna Court, confirmed by the appeal court and the Supreme Court, by which Tatariv Council was obliged to close the cemetery (see paragraph 49 above). This judgment remains unenforced to this day (see paragraph 6 1 above) and members of Tatariv Council, on several occasions, have refused to adopt a decision in compliance with that judgment;", "(iv). The domestic authorities continued to disrespect the domestic environmental regulations as well as the final and binding judicial decisions confirming that they acted illegally and the decision of 26 December 2003 confirming that the cemetery should have been closed.", "92. The Court notes that the Government have not disputed that the cemetery was built and used in breach of the domestic regulations (see paragraph 8 5 above). It further appreciates the difficulties and possible costs in tackling environmental concerns associated with water pollution in mountainous regions. At the same time, it notes that the siting and use of the cemetery were illegal in a number of ways: environmental regulations were breached; the conclusions of the environmental authorities were disregarded; final and binding judicial decisions were never enforced and the health and environment dangers inherent in water pollution were not acted upon (see paragraph 91 above ). The Court finds that the interference with the applicant ’ s right to respect for his home and private and family life was not “ in accordance with the law” within the meaning of Article 8 of the Convention. There has consequently been a violation of that provision in the present case. The Court considers, in view of its findings of illegality of the authorities ’ actions, that it is unnecessary to rule on the remaining aspects of the alleged breach of Article 8 of the Convention.", "II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION", "93. The applicant complained that the failure of the domestic authorities and private individuals to comply with the final judgment prohibiting the use of the VL plot situated near his house for burial purposes had amounted to a breach of Article 6 § 1 of the Convention.", "94. The Government contested that argument.", "95. The Court finds that this complaint is linked to those examined above and must therefore likewise be declared admissible. Having regard to the finding relating to Article 8 (see paragraph 9 2 above), the Court considers that it is not necessary to examine the issue separately under Article 6 § 1 (see, mutatis mutandis, W. v. the United Kingdom, 8 July 1987, § 84, Series A no. 121, and Mihailova v. Bulgaria, no. 35978/02, § 107, 12 January 2006).", "III. OTHER COMPLAINTS", "96. The applicant complained under Article 6 § 1 that the proceedings concerning his dispute with Tatariv Council had been unfair and excessively lengthy.", "97. In the light of the materials in its possession, the Court finds that the applicant ’ s complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.", "98. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.", "IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION", "99. Article 41 of the Convention provides:", "“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”", "A. Damage", "100. The applicant claimed UAH 1,000,000 (EUR 163,125) in respect of non-pecuniary damage.", "101. The Government contested this claim.", "102. The Court notes that the applicant must have sustained non-pecuniary damage as the result of the violation found. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6, 0 00 in respect of non-pecuniary damage.", "B. Costs and expenses", "103. The applicant did not submit any claim for costs and expenses. Accordingly, the Court makes no award under this head.", "C. Default interest", "104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points." ]